News + updates + recent press
Failure of a Mortgagee to File a Statement of Claim in a Deceased Borrower’s Probate Voids Right to Collect a Deficiency, discusses the essentiality that a mortgagee files a claim to preserve entitlement to impose liability on the estate due to an existing or potential deficiency. While it was the Florida Supreme Court that set this precedent in 1940, it was the United States Supreme Court’s decision in Pope that provided clarity 48 years later regarding the importance of notice to creditors against the backdrop of the Fourteenth Amendment.
Failure of a Mortgagee to File a Statement of Claim in a Deceased Borrower’s Probate Voids Right to Collect a Deficiency
It is well settled law that a mortgagee’s lien is an exception to Statute of Nonclaim set forth in Florida Statute, section 733.710, which bars any claim regardless of notice after two years from the date of the decedent’s death. Florida Statute 733.710(3) provides that a duly recorded mortgage remains intact and fully enforceable notwithstanding the lienholder’s failure to file a claim in the probate.
Why then should a mortgagee file a claim in a deceased borrower’s probate action?
The answer to this question is best answered by way of review of a Florida Supreme Court decision, In re Comstock’s Estate, dating all the way back to 1940.
PLG BLOG DISCLAIMER
The information contained on this blog shall not constitute legal advice or a legal opinion. The existence of or review and/or use of this blog or any information hereon does not and is not intended to create an attorney-client relationship. Further, no information on this blog should be construed as investment advice. Independent legal and financial advice should be sought before using any information obtained from this blog. It is important to note that the cases are subject to change with future court decisions or other changes in the law. For the most up-to-date information, please contact Padgett Law Group (“PLG”). PLG shall have no liability whatsoever to any user of this blog or any information contained hereon, for any claim(s) related in any way to the use of this blog. Users hereby release and hold harmless PLG of and from any and all liability for any claim(s), whether based in contract or in tort, including, but not limited to, claims for lost profits or consequential, exemplary, incidental, indirect, special, or punitive damages arising from or related to their use of the information contained on this blog or their inability to use this blog. This Blog is provided on an "as is" basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose.