Wednesday, April 13, 2016

3d DCA Watch -- Rehearing En Banc Granted, Tons of Amicus, Plus a Powerful Dissent!

Look at the list of heavy hitters populating this foreclosure opinion, including many amicus briefs, leading to a rehearing en banc and a newly substituted opinion (plus a strong dissent).

What could all the tsuris be about?
We therefore conclude that dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action.
There's more:
Stated another way, despite acceleration of the balance due and the filing of an action to foreclose, the installment nature of a loan secured by such a mortgage continues until a final judgment of foreclosure is entered and no action is necessary to reinstate it via a notice of “deceleration” or otherwise.
Hmm, this doesn't seem overly consumer-friendly. 

Anything else?

Yes, a lengthy pre-rebuttal to Judge Scales' stinging dissent, and a q-and-a with two different Florida Bar sections(!) as to what these practitioners think the law is or should be in this area.

Say what?

Yes, read Judge Scales for more on all this:
Relying on a sweepingly broad interpretation of Singleton v. Greymar Associates – a Florida Supreme Court case in which the term “statute of limitations” is not even mentioned – the en banc majority opinion reverses the summary judgment and, in the process: (i) creates the legal fiction that a lender’s acceleration does not affect the installment nature of the note; (ii) rewrites the acceleration and reinstatement provisions of the parties’ note and mortgage; and (iii) effectively rewrites the statute of limitations for mortgage foreclosure actions in Florida.
On to Tally goes this one, in my humble estimation!


Anonymous said...

The smarter Judges are with the dissent.

Anonymous said...

Blatant corporate judicial activism for the banks

Kissimmee Kid said...

3:32. Well duh, have you been to any foreclosure court in Florida. "Oh, you won't pay your lawyers a proper fee to prosecute your claim Mr. Big Bank? Don't worry, we aren't neutral and detached magistrates. We are the Florida Supreme Court and we are in the tank for you; we'll push your cases along so you don't have to. It is only socialism when the government helps the people."

Anonymous said...

The appellate court (third district) is the new trial court. Taking and weighing evidence. Holy guacamole.

Unknown said...

The banks have always controlled. It us now just so plainly obvious.

andrews said...

The sad thing is that for many people, the foreclosure sausage works will be their only exposure to our judicial system, perhaps barring small claims or traffic. The circuit courts ought to be doing their best to uphold justice and follow the law.

Instead, in foreclosures, it appears that
(a) limitation does not apply, sue on an 8-year-old default, no problem
(b) competent testimony is not required
(c) if you ``relied'' on someone elses records, they are correct
(d) correct records are not only not likely, but not required
(e) in fact, forget most of the rules of evidence

Sometimes the appeals courts are a disappointment also, but you know the odds when you go in there.

Still, consider what happens. The rules of evidence are ignored, banks come in with flimsy or outright dishonest evidence, and the judge makes it clear that the main concern is getting the judgment rubber-stamped and your defendants are just wasting the court's time. If it is not a particular person, it may well be the [soon to be ex-] neighbor.

Knowing this to be the public's most likely experience with the court system, you are now free to speculate as to the level of respect the system can expect.