I want to take the time to talk about a case I successfully defended today.
Like many of you, the borrowers have been through a foreclosure before
and were able to keep their home. The bank however decided to refile and
try to foreclose again. One of the issues we used to prevail stems from
a recent Florida Supreme Court called Bartram v. US Bank National Association.
Some of you may know a bit about this case. It deals with the 5 year statute
of limitation and whether a bank can try to foreclose again. This case
created more problems than it solved. In particular, the question of what
happens when the bank tries to reforeclose by alleging that the borrower
failed to pay their mortgage during the pendency of the prior foreclosure
attempt? That question was finally addressed today.
The bank attempted to foreclose against our clients several years ago and
thankfully we were able to have that case dismissed. The same bank tried
to foreclose again, however in their complaint they alleged that our client
failed to pay their mortgage. The date they picked for this default? A
date during the pendency of the first foreclosure case. The legal rational
about why this is a problem is complicated, but the general idea is that
because the old case was still active, the client couldn’t have
failed to make a mortgage payment during that time (as alleged in the
refiled case), because no payments were due by virtue of the old action
being still active. You can’t file a foreclosure complaint, demand
that the entire balance of the mortgage is due, lose your trial against
the borrower, and then file another foreclosure complaint alleging that
the borrower didn’t make a payment during the time the old foreclosure
case was still being litigated. That’s what the bank did here, and
that’s why the bank lost today.
The Bartram opinion spoke about this very issue and said that this can’t
be done. The proper way is for the bank to allege a missed payment sometime
after the dismissal of the prior foreclosure complaint. Thankfully the
Judge agreed with us and our interpretation of the Bartram case.
If you have been through a foreclosure lawsuit before,
reach out to Loan Lawyers to see if we can help you keep you in your home.