Menu
PLG NEWSNOTE THAT SOME DECISIONS DISCUSSED HERE ARE RECENT AND MAY NOT BE FINAL. FOR UP-TO-DATE ANALYSIS CONTACT US TODAY.
|
|
Padgett Law Group was successful in winning an appeal in the 4th DCA on a Broward County case, reversing the trial court’s dismissal of the bank’s foreclosure of a 2006 mortgage based on homeowner’s argument that when the bank filed foreclosure in March of 2015, there was an LP in place filed by the HOA in February of 2015 on the HOA’s foreclosure of its lien, and therefore the court in the case lacked subject matter jurisdiction. Steven Hurley appeared for Ditech, and in ruling for the bank, the court concluded:
“We conclude the trial court erred when it found the court lacked subject matter jurisdiction over the Foreclosure Action. The lower court’s ruling was based upon a misinterpretation of section 48.23(1)(d), Florida Statutes. Section 48.23(1)(d), Florida Statutes, only acts to preclude enforcement of liens unrecorded at the time a lis pendens is recorded. It is undisputed that the Bank recorded its interest in the subject property years prior to the Association’s lis pendens filing/lien foreclosure action. The Bank was free to separately file the Foreclosure Action. The trial court did not lack subject matter jurisdiction.” On Friday, July 14, 2017, the 1st DCA in Forero v. Green Tree Servicing, LLC, Case No. 1D16-2151 (1st DCA July 14, 2017) affirmed that the continuing nature of the default serves to make each foreclosure its own, distinct action, even though the initial date of default was the same as in prior foreclosure actions. Borrower’s appeal raised two main issues: 1) the foreclosure was barred as res judicata under the two dismissal rule (a 2nd voluntary dismissal of a case operates as an adjudication on the merits); and 2) the statute of limitations had expired due to the December 1, 2008 default date. This was the third foreclosure filed with the same 2008 default date and both of the prior foreclosures were voluntarily dismissed. In reaching its decision, the Court ruled, “…the foreclosure action was not rendered res judicata by the two previously dismissed foreclosure suits on the same note, and …the statute of limitations in section 95.11(2)(c), Florida Statutes, did not bar the action due to the inclusion within the allegations of at least some defaulted installment payments within five years of the date the complaint was filed.”
The Court followed the recent rulings in the Desylvester and Bollettieri cases from the 2nd DCA and Supreme Court cases Singleton and Bartram which address the “installment nature” of mortgages and joined the 2nd , 4th and 5th DCAs in confirming that allegations in the complaint of the continuing state of default satisfies the statute of limitations. The Padgett Law Group, through attorney Michael Ruff, represented the servicer in this case, which is a monumental victory that positively impacts Florida law on statute of limitations for lenders and servicers. Click the "read more" link below for the full decision. |
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. |
