We are still waiting for the Florida Supreme Court to decide this issue that it has previously decided before. It may seem obvious that when the Statute of Limitations has run you are SOL even on a valid claim. But in the grand effort to prevent “free houses” the Florida 3rd DCA in Beauvais came up with alternative theories. Presently we wait for the The Florida Supreme Court to decide the issue once and for all.
To simplify it, the issue is basically what is the effect of an acceleration letter. For a long time, it has always been treated as a legal act that has consequences for both the borrower and the lender. The 3rd DCA has basically changed that. It says the acceleration letter can be used against the borrower but otherwise it means nothing when we consider the rights of the “lender.” of course we know that none of these Plaintiffs are “lenders” in any sense of the word, but that is not the point here.
It has always been the law that acceleration means what it says and that it has the legal effect of what it says. If sent, it means that the entire balance has become due and the statute of limitations starts ticking from the time the acceleration letter was sent. That gives the bank 5 long years (Florida statute of limitations) to finalize its claim.
The 3rd DCA has come up with a novel rationalization, to wit: that the acceleration letter is good for a foreclosure action seeking the entire amount due but it becomes irrelevant for all other purposes — like when the borrower wins the case. That means that the purported lender can sue on those payments that became due after the statute of limitations had run out as of the date of the default or the date of acceleration — this is not clear from their decision. The problem with this theory of course is that once notice of acceleration is given, there are no payments due except the entire principal balance, interest etc.
Besides being wrong on legal theory the 3rd DCA essentially was (a) making bad law for other future cases in which this type of legal reasoning is used and (b) it keeps the court’s dockets filled with “new” foreclosure cases that were screwed up by the “banks.” That means that the doctrines relating to finality are being brushed aside, opening the door for all kinds of claims by Plaintiffs who already lost their case.
If the shoe was on the other foot the same court would be talking about finality and how the homeowner, even if they had prior claims, should have brought them before or cannot complain that they lost the first time around. And that is unequal treatment under the law.
Filed under: foreclosure |
In NC the General Assembly passed a law saying: every missed payment is a “new default” What? The acceleration doesn’t matter according to them. They have made up their own rules and are trying to make it retroactive, prior to passing the law, DAH? How can you accelerate and demand due and payable the balance….then say any payment missed after that is a new default for foreclosure purposes…this could go on to infinity, right? I say Bull crap. They do not get to change a contract, just ’cause they don’t like the terms.
Just saying
The dissenting opinion in the 3rd DCA’s Beauvais case is right with the law. If the Supreme Court is to uphold that long-standing law, then it will take the dissenter’s position, otherwise it will have merely shown itself for what we all know it is; a Court controlled by Oligarchy through the corporate lobby. If the SC sides with the majority opinion, those SC justices must be removed from office.
Looks like the supremes are waiting for the one DCA holdout to align with the rest so they will not have to air their dirty laundry with regard to the court’s bias against the homeowners. The elephant in the room is the continued relevancy of the supremes if they are forced to opine on the issue and again save the banks. The issue of finality is really all about any question of a homeowner receiving a fair and impartial hearing which is basically denied when the banks are granted essentially res adjudicata sovereign immunity ad infinitum.
First of all, don’t believe _anything_ they tell you, especially over the phone. (2nd, don’t believe most of what is in writing.)
Be sure to keep both accelerations, they may come in handy sometime.
Also, note you did not ever receive an “un-acceleration” notice between, or since.
You sound like a dual-tracking model.
Ya’d think after six years the banks would at least get their act together.
I’m on the same boat.
– Defaulted on 05/2010.
– Acceleration letter received on 08/2010.
– 04/2016 second foreclosure case, complaint received.
– 07/2016 hearing for motion to dismiss based on Florida Statue of Limitation. Judge Simon denied the motion. 1st. Judicial Circuit, case # 57-2016-CA-000282. He presume, that acceleration occurred in 01/2013 with first foreclosure case # 57-2013-CA-000020.
I’m not crying yet, but “the law” should be blind.
what if one bank brings a foreclosure suit, they loose on a paragraph 22 violation, court dismisses the case then that bank sells/ assigns your mortgage to another company? Assignment done 12/2014 yet the supposed original weren’t released from the courts until 8/2015. How does that even happen? The new mortgage company says I am about 1200 days past due. What does the SOL mean for me?
Any info or help is greatly appreciated.
Reblogged this on Matthews' Blog.
why would i get two acceleration letters, one date in february and one dated in august of the same year. the one i got in feb. , i was told by the bank to ignore since i thought i was in a modification and had been making payments already for 5 months prior to receiving the feb acceleration letter and then when i got the one in august, i was in the same modification and told to ignore that one too and then they slammed me in foreclosure, f**king bast**ds
In Colorado the statute of limitations is 6 years for foreclosures, but we have a clear state supreme court ruling from 1909 that states SOL starts at least from the first notice of default:
https://www.courtlistener.com/opinion/2607392/application-of-church/