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Notice as Due Process, and the Importance of Timely Filing a Claim Upon Receipt of Notice
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.
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