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Fla. Judicial (11th Jud Cir) holds inheritance of debtor could increase statute of limitations defense in foreclosure
Recently, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, rejected a second enforcement action brought more than five years after the first action, claiming the same breach of the limitation period. The Court also stated in that judgment that the subsidiary of the debtor and the exclusive beneficial owner of the assets mortgaged by a reverse mortgage was entitled to claim the limitation period.
For a copy of the statement by Reverse Mortgage Solutions, Inc. v. Estate of Ruby Hayes, please see : As of October 2007, a debtor concluded a home equity conversion mortgage, generally referred to as a reverse mortgage. "After the death of the debtor in May 2008, 100 per cent of her farmstead was handed over to her subsidiary.
In July 2009, the then mortgage creditor brought an action for enforcement and claimed that the 2008 mortality of the debtor caused the mortgage accelerator clauses. In 2013, the 2009 enforcement action was rejected. A new bondholder ("mortgage creditor") brought a lawsuit in September 2014, which specified the same date of delay - the borrower's demise in May 2008 - and stated the reverse mortgage expediting regulation as the reason for expediting the indebtedness.
In May 2016, after the borrower's subsidiary was awarded hometead designation of the land by the Probate Circuit Court of Miami-Dade County as the borrower's successor in May 2016, the subsidiary of the lender relocated to reject the enforcement action on the ground that Florida's five-year limitation period had expired the action. In the negotiation, the mortgage creditor reasoned that the borrower's subsidiary was lacking prestige to claim the limitation period because such defence was personally related and lacking privacy with the grade and the reverse mortgage.
According to Florida's laws, a "defendant may not claim a limitation period if the respondent has no relationship with the defending faction. However, if there is a privacy between a individual who, if accused, could claim the limitation, and the claimant who offers to "claim it," the claimant who offers to do the defence can collect it to salvage their possession.
Here, the court came to the conclusion that the borrower's subsidiary, as the exclusive right holder of the burdened, domestically secured assets, was entitled to invoke a limitation period. Next, the court considered whether Florida's five-year limitation period was applicable or not. You may remember that "[w]h a mortgage will declare all the debt due in the event of failure to comply with certain of its terms, or within a reasonable period thereafter, the limitation period for a levy of execution will begin to run immediately when the delay occurs.
In order to establish whether a second enforcement right results in a breach of the limitation period, Florida's judicial authorities investigate the period between the enforcement measures and the kinds of delay that those measures have caused. Since both forced sale suits asserted the same omissions, the Court found that "it is unlikely that the suits will indicate consecutive and different omissions as set out in Singleton" and that the limitation period applies to all consecutive forced sale suits.
Thus, because the immediate, second enforcement suit was lodged more than five years after the date of deaths of the 2008 borrowers and the date of supposed insolvency, and the payment failures in both enforcement suits were the same, the court considered that the limitation period applicable. Accordingly, a legally binding judgement was made in favour of the borrower's subsidiary and against the creditor.