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You Won’t Believe What Happens After Appellate Court Grants Rehearing in Beauvais

Thu Aug 20, 2015 by on Florida Law News

foreclosure, statute of limitations, Beauvis

(photo credit) :
View on upside-down Wonderworks building is a fun-loving museum

In the world of foreclosure, what is right side up can often seem upside down. Thus, in this topsy-turvy world of foreclosure, the Third District Court of Appeals is trying to grapple with the issue of statute of limitations and foreclosure. After granting rehearing in Deutsche Bank Trust Company Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014). It’s hard to believe what happened after appellate court grants rehearing in Beauvais and foreclosure.

The court has asked for amicus briefs from:

  • The Mortgage Bankers Association of South Florida
  • The Business Law Section of The Florida Bar
  • The Real Property Probate & Trust Law Section of The Florida Bar
  • The Florida Alliance for Consumer Protection
  • The Federal National Mortgage Association and Federal Home Loan Mortgage Corporation

The briefs will answer the following 6 questions:

Where a foreclosure action has been dismissed with the note and mortgage still in default:

  1. Does the dismissal of the action, by itself, revoke the acceleration of the debt balance thereby reinstating the installments terms?
  2. Absent additional action by the mortgagee can a subsequent claim of acceleration for a new and different time period be made?
  3. Does it matter if the prior foreclosure action was voluntarily or involuntarily dismissed, or whether the dismissal was with or without prejudice?
  4. What is the customary practice?
  5. If an affirmative act is necessary by the mortgagor to accelerate a mortgage, is an affirmative act necessary to decelerate?
  6. In light of Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004), is deceleration an issue or is deceleration inapplicable if a different and subsequent default is alleged?

Stay Tuned! 

Tags: 5-year-statute-of-limitations, beauvais hearing, Deutsche Bank, foreclosure, Home Loan Mortgage Corporation, Real Estate, statute of limitations

10 responses to “You Won’t Believe What Happens After Appellate Court Grants Rehearing in Beauvais”

  1. Sunshinepam says:

    I read the statute. I don’t see what the argument is. If the banks can still foreclose after 5 years then what is the 5 year statute of limitations there for? We need to get back to basics. Stop trying to manipulate the law. Banks have enough money. Homeowners are suffering. Wake up court. The gready banks caused this mess why do you want to reward them? Dear God help us.

  2. Bandit007 says:

    The bottom line is this. If the lender claims to have accelerated the loan then the loan has been accelerated until there is either affirmative action by the borrower or the lender rescinds the acceleration. The court is not a party to the contract and has no power to decelerate the acceleration any more than they have the power to accelerate someone’s mortgage. It doesn’t take a law degree to see the manipulation of the courts in favor of the banks to the point of disregarding common sense, fair play and years of established case law…but then OJ Simpson got away with murder didn’t he? and Robert Blake and Casey Anthony and anyone with enough money to buy the verdict. I imagine the courts/judges will rule in favor of the ones with with the most money to contribute to their future campaigns/endeavors regardless of whether or not it is the ‘right’ or ‘honest’ thing to do. It’s the world we live in which is neither ‘free’ nor ‘fair and balanced’.

  3. Bandit007 says:

    Furthermore why all the hoopla? To give the ‘appearance’ of weighing both sides in the name of justice I suppose. The Beauvais decision makes a lot of sense and gives them a way to reconcile Singleton but the 3rd District has apparently gotten a lot of heat for their opinion and a ‘hearing en banc’ getting all twelve justices involved is probably coming from Tallahassee and is their way of overturning this decision without anyone losing face. I bet there have been dozens of phone calls back and for between the legislators, the bankers and the 3rd district justices to try to ‘fix’ the Beauvais ruling. A ‘hearing en banc’ is the perfect way to do it. And there will be no outcries of a miscarriage of justice because most people don’t care and probably think no one deserves a ‘free’ house. Such a shallow train of thought as the ramifications of fraudclosure will only spill over into all of civil law and what is today a mere trampling of the rights of a few deadbeats who couldn’t keep up with their mortgage will tomorrow be the patients who died from the effects of a new drug not properly vetted by the large pharmaceutical company who invented it or the homeowners whose homes were destroyed by the devastating effects of global warming and who’s mega insurance companies are refusing to pay. Once the judicial system can be bought and sold we are no longer living ‘free’ as one nation under God indivisible with liberty and justice for all.

  4. Antibank says:

    I’ve been waiting for Bank of New York to foreclose a property since 2009. The court dismissed the case in 2011 for failure to prosecute, and it’s never been refiled. Don’t live in or want the home, the default isn’t even showing up on my credit report any more. What a hot mess.

  5. Whitefly says:

    Your point about some deadbeat homeowner getting a free house is off the mark I believe. The truth is banks do not lend their money, just read I Bet You Thought or Two Faces Of Debt or Modern Money Mechanics all Fed Publications that explain that a “loan” is really a currency exchange. The Bank receives the money to make the loan by selling the “borrowers” promissory note, most likely to the Fed. The bank receives free money from the “borrower” via their claim that they own the note, which they did not pay for. The “borrower” is then duped into pledging the home they own free and clear at the closing for a loan they never get. It’s not the homeowners fault that the government is a party to this banking fraud where the government has bankrupted the country by borrowing fiat currency from a group of crooks. Fed reserve notes are available to the Fed for the cost of printing them (around 2 cents per note) and are backed by the American people’s goods and services. In exchange for this agreement to allow the banks to operate this way the American people were to be given a remedy in law, that being that their signature on a debt instrument was currency. Because this would expose the Bankruptcy of the United States the American people were never told they had this remedy. When the Government and banks needed to be bailed out I bet you weren’t spouting any deadbeat charges their way where you? The courts know good and well that the bank does not have one penny into the so called loan and so do the lawyers, the people are the only ones left out of the loop. The banks have no standing as they has not lost a thin dime.

  6. Whitefly says:

    The loan documents place the terms borrower and lender in quotation marks. The reason for this is to notify the reader that normally borrower has a certain meaning and normally lender has a certain meaning but in this document they do not retain those common meanings. Why because the real lender is the alleged “borrower” and the real borrower is the alleged “lender”. Judges and lawyers are the last place on earth to look for honesty or what is right and they know it. If they were honest they would ask the bank how much money they paid for the note and how much money they paid for the right to foreclose on the home. When a loan is repaid the bank never returns the note because the sold it to fund the loan. If the “borrower”did not own the home free and clear at the closing then the borrower could not have granted a security interest in the home to the bank remember your closing no money is paid out until three days have passed. Fraud, you bet.

  7. jaklegal says:

    The issue isn’t nearly as easy as meets the eye either.  Hypothetical: The bank sends the pre-suit paragraph 22 letter accelerating the debt in 30 days and the borrower does nothing and the foreclosure is filed.  The case goes to trial 6 years later and the homeowner gets a dismissal for the acceleration letter’s failure to meet the requirements of paragraph 22 of the mortgage.  Then what?  

    If you are saying the borrower won on the issue that there was not in fact a valid acceleration due to deficiencies in the acceleration letter, then the debt was never accelerated properly for the bank to win.  So was there ever a valid acceleration or merely a failed attempt? 

    As you can see there are LOTS of little nuances to the issue well beyond being able to count dates.

  8. Bandit007 says:

    jaklegal or as in my case. Loan accelerated in August 2007 via notice of acceleration letter after being 6 weeks late on the payment. (Health issue). Threat to sue for deficiency. (100,000.00 after living in the house for one year…over appraised from the get-go) Countrywide. Foreclosure filed in October 2007. Stern. Bankruptcy discharged debt in June 2008. (Stay lifted after 47 days….I wasn’t about to be on the hook for 100,000.00) Lender continued their attempt to foreclose. I never lived in the house for free.  I was offering my assistance as all I wanted was to move on with my life. Involuntary dismissal without prejudice in October 2010. In October 2011 I received a letter from their attorneys reaffirming I was still under acceleration and owed the entire accelerated balance plus interest, fees and penalties. They also announced they would be moving forward with acceleration. House has now sat empty for nearly 5 years. It has been ransacked…left open to the elements and made into a party house by the neighborhood kids. It also happens to be on the corner where the school bus stops 6 times a day. I contact a lawyer for the first time. He advises me to repossess the house immediately. He says my liability is too great to leave it unattended. There is a lien filed in my name because the city has had to clean up the property. It is very traumatic for me to walk back through the front door. The house is covered in mold. The entire property is a disaster. I spend my own money to clean it up. 6 months later I drop dead from sudden cardiac arrest after a confrontation in the front yard. The stress was just too much. Waking up every night at 4 in the morning. I am coming up on 9 years now since default. I should be recovering but still under tremendous stress as I watch the case slowly move through the court. I have no idea where this will go. Every night I check the docket before I go to bed. And every night I wake up at 4 in the morning and toss and turn until daylight. I’m just now 60 years old. Life pretty much sucks.

  9. jaklegal says:

    Bandit007  If you dont want the house hire a lawyer to get rid of it for you.  The bank may waive everything you owe on it AND pay you cash, up to $10,000.  You can do this sometime with a deed back to the bank or via short sale.  You dont have to sit on it being empty being vandalized and liable for it.

  10. Frogger412 says:

    I closed my loan inn 2006.  When the market went south, I went to the bank in 2009 for a modification or short sale,  Bank approved my modification but foreclosed at the same  time.  During June 2015 my case was voluntarily dismissed by bank, as judge ordered bank to commence with trial or judge would rule.  I now am working with my sixth mortgage service who claims I owe the full amount of my mortgage.  Why would this not be covered under the statute of limitations?