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Foreclosure Mills Believe Mortgages Have A Statute of Limitations…(That’s Not Settled Law)

By January 14, 2016One Comment

An article appears in Default Servicing News wherein Florida Foreclosure Mill Gladstone Law Group touts their firm’s computer system that helps ensure they complete foreclosures,

“before the expiration of the five year statute of limitations”

Here the fascinating thing…until Beauvais and Bartram are resolved…and until the Florida Supreme Court issues a definitive answer on the question of whether there even is a Statute of Limitations, the issue is very much up in the air. Believe me…like every homeowner and consumer advocate attorney, I very much want the Statute of Limitations to apply, but I just do not think there is any way the Florida Supreme Court is going to render such a decision.  Just listen to the oral arguments before the Florida Supreme Court here. This is a panel of justices who are absolutely hostile to the mere suggestion that such limitations should apply. I therefore find it most compelling that foreclosure mills are operating as if it is settled law…

How long ago was the tracking system implemented?

We always looked at the statute of limitations, so it was always in effect. We started upgrading it closer to 2011. Those cases really hadn’t even hit five years from the bubble, we didn’t even really see statute of limitation issues until 2011 and 2012 when some of those larger firms had gone under. A lot of those cases were dismissed. And then there was this incredible undertaking of transferring those files, and banks had to figure out where some of these files were going. That caused a lapse in time in addition to loss mitigation and other things that were going on that delayed the banks from pursuing the foreclosure. The result of that perfect storm of delay, when everybody said, “Okay, let’s start foreclosing again,” is that the issues of statute of limitations started arising. Let’s say you had someone that defaulted in 2006 and their case gets dismissed in 2010, then it goes through all these different processes, it gets reset for referral. Then the firm looks at it and says, “Wait a minute. . .this has been more than five years.” And that’s where this issue came from.

We generally resolve cases before the court has to do so because of the statute of limitations. We conduct an analysis with the client to determine how strong our argument is that the foreclosure was timely filed and what options the borrower is ultimately looking for from this case and the risks. Generally, we’ve been able to either work out those files or make a strategic business decision with our clients that they would prefer to just dismiss, and using the case law at the time, come up with a way to move the breach date forward so that we’re filing within a five-year period. There’s been a lot of attention to making sure that everybody is in compliance. Our firm has been instrumental with educating our clients with the law in Florida and how it’s been changing. We use our system to early detect any issues, especially when we take a file from another firm that may be closed or that our bank is no longer using. We immediately scrub that for a statute of limitations evaluation so that our client can make a good decision on how to proceed.

See the article here

One Comment

  • Mark Bowen says:

    Where so many get it wrong is in the interpretation of “acceleration”.

    Black’s Law (Eighth Edition) defines acceleration as “The advancing of a loan agreement’s maturity date so that payment of the entire debt is due immediately.”

    When the maturity date is advanced, it automatically collapses the loan agreement’s payment schedule so that only what’s due at the moment of acceleration is due and payable. The payment schedule then ceases to exist, and the clock begins to run as imposed by the limitation.

    The variance in an action to foreclose a mortgage, as observed by the courts, is in the alleged multiple defaults over time which, upon acceleration, do not lawfully continue to accrue.

    Florida’s Court’s have made their determination’s based on the false belief, or assumption, that the payment schedule is still active after acceleration, thereby creating new causes of action.

    By the way, in most mortgages, there is no clause which provides the “lender” with the opportunity to cure a default, or un-accelerate the mortgage once accelerated, giving that option only to the “borrower.”

    There’s more to this but, I believe that, this is a good place to start, and I am convinced that this argument has never been made.

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