Florida Foreclosure: Where No Case is Over-Ever

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I have not commented on the arguments regarding the statute of limitations here in Florida. It is time I did. The article here points out that the 3rd DCA has bent over backward and essentially broken its own backbone by creating legal fictions to save the banks. What they continue to ignore is that saving the banks means screwing the consumer, the citizen and the taxpayer. They also have essentially ruled that the banks can keep coming into court, filing the same lawsuit over and over again, until they win by attrition — few homeowners can afford to contest foreclosures repeatedly. The 3rd DCA decision essentially says that it isn’t over until the bank wins.

 
The obvious premise behind this flawed decision is that somehow this will make everything turn out “right.” It doesn’t. The court completely ignores the huge body of law and information in the public domain that reveals the banks as the perpetrators of epic fraud. Either the court doesn’t know about the fraud or it doesn’t care.

 
And what the court does not address is the nature of the fraud by assuming facts that don’t exist. These banks don’t have a penny invested in any of the loans that they are using for foreclosure and even modification where ownership of the debt gets transferred from the investors who advanced the money to the banks who sold them the bad deals. The investor is left with nothing in most cases while the borrower cleans out his savings account trying to save his/her home only to lose it to a party who is stealing the home from the borrower and the loan from the investor.

 
The court is creating multiple legal fictions. In so doing the court has destroyed the value of stare decisis — legal precedent. Or, if you look from another point of view creating a destructive legal precedent. Instead of taking each legal effective act as something that matters, they have bent and broken the language of the note and mortgage — essentially converting the act of acceleration to an option that means nothing unless foreclosure is successful.

 
If this decision is left standing then no case is over, ever. And lawyers will start arguing that even though their client committed themselves to an act with legal significance, they now choose to disavow that act and proceed on an alternative theory — after they have already lost the case in prior proceedings. This creates an endless chain of alleging “new facts” or “alternative facts” on every case where a party previously lost the legal contest, or where their case was dismissed.

 
The inherent presumption is that borrowers have no voice in this process because they received the benefit of fraudulent schemes. But in the courts where I grew up as a lawyer, no party was allowed presumptions if they had unclean hands seeking the equitable remedy of foreclosure.

 

Nor would a fraudster be allowed to benefit from his schemes once the scheme was revealed. The courts are turning this on its head. As stated in the Yvanova decision in California, it DOES matter if the wrong party is bringing the foreclosure action. It is not enough that the homeowner may owe someone money based upon some equitable theory of law; the homeowner must respond only to a claim from the actual party to whom the debt is owed, i.e., the creditor.

 
That California decision said it well — we don’t enter judgments against people simply because they must owe somebody (or anybody) money. The legal system is only available to those with legal standing — a party to whom the debt is actually owed because they paid for it.
This rush to “convict” the homeowner of bad behavior (breach of an unconscionable arrangement where there is no actual enforceable loan contract) is the insidious basis of most of the court decisions where the courts have “read in” fictions that never existed by contract, statute or legal precedent.

 

They did it with due process by putting the burden on homeowners to prove facts that were solely within the care, custody and control of third parties.

 

They rubbed it in when they blocked discovery to get to those facts.

 

They did it again by reading into TILA rescission that the homeowner must file a legal action to make rescission effective (despite the express wording of the statute to the contrary).

 

They did it again by reading into TILA rescission that the homeowner had to offer some tender to the “lender” in order to make rescission effective.

 

And they are doing it again, even after the Supreme Court of the United States told them they were wrong by reading into TILA rescission that the conditions precedent to a valid rescission mean that the rescission is not legally effective until a judge decides the issues raised by the pretender lenders. THAT theory brings us full circle around to the erroneous theory that TILA rescission is not effective upon mailing and that it is not effective until someone files a lawsuit. But they do it again when they say that the Court can decide the outcome of a nonexistent lawsuit filed by a nonexistent party.

 
This won’t end until the Courts return to basic contract law. The courts must abandon their intrusion into the legislative agendas where public policy is declared. They must especially back off when the court doctrines on public policy conflict with the legislators who are the ONLY people constitutionally permitted to make policy. Those legislators have spoken on Federal and State levels. But the courts are unconstitutionally refusing to abide by laws passed by the legislative branch. The statute of limitations is just another example.

 

The way it destroys legal precedent is that it directly conflicts with the doctrine of finality. For example if a person is in an auto accident and chooses to make the claim before they reach maximum medical improvement, the measure of damages is diminished because once they sue the damages are based upon the proven injury. They might even lose because the proven damages are inconsequential. When they later discover they have more injuries and more damages they cannot come back into court and say that their last claim was an option — and more importantly that the fact that their claim was dismissed should be ignored.   And even more to the point, if their last claim was within the statute of limitations and their present claim is outside of the statute of limitations the plaintiff’s claim is dismissed on the basis of res judicata — the matter has already been litigated AND the statute of limitations.

 

If the judiciary is able to rewrite laws of the legislature from the bench in regards to Mortgages, then why shouldn’t the court do the same for ALL legal issues?  It is only a matter of time until these cases are used to circumvent the statute of limitations in other cases- opening up an onslaught of new cases that have already been tried.  Finality will be a thing of the past.

 

There can be little doubt that the banks control the judiciary. The Third District Court of Appeal ruled that the statute of limitations in mortgage foreclosure actions are not applicable. The court had earlier determined in the 2014 Deutsche Bank v. Beauvais opinion that the statute barred Deutsche Bank from filing a foreclosure action five years after the borrower’s default and the lender’s acceleration demanding full payment of the loan.

 
The Third District Court reversed this decision in a 6-4 ruling on April 12 and held that the statute of limitations can NEVER bar a bank’s efforts to foreclose on a Florida homeowner! What does this mean? It means that the banks will have until 5 years after the maturity of the loan to foreclose, and the ability to repeatedly file foreclosure actions until they have outspent and exhausted the homeowner.

 
This decision is a travesty. This decision ensures the foreclosure crisis will continue for decades, and allows the banks unlimited court actions until they can successfully foreclose on the homeowner. Very few homeowners have the financial means to endure decades of litigation, and very few homeowner’s attorneys will have the endurance or desire to defend cases for long durations of time. This ruling allows the banks to regroup, correct the issue, and re-litigate (or fabricate documents to “cure” the error).

 
The Third District’s en banc decision was based on the 2004 Florida Supreme Court opinion in Singleton v. Greymar. In Singleton, the trial court dismissed the lender’s foreclosure action on an accelerated debt with prejudice after the bank failed to appear at a hearing. What is unclear from the Singleton record is why the lender failed to appear. The court should have recognized that there was an agreement to reinstate under which the borrower made payments prior to the dismissal.
The lender filed a second foreclosure action after the borrower defaulted on a new, subsequent workout plan. The borrower sought to avoid the second action claiming res judicata. It is noteworthy that the lender’s Supreme Court brief in Singleton was only four pages long, with only one paragraph of actual argument stating that to deny the foreclosure would create “uncertainty” for banks and a “windfall” for homeowners, offering no analysis of res judicata, collateral estoppel or the consideration of the statute of limitations.

 
Even the attorney who represented the lender in Singleton, Mark Evans Kass, said that Singleton has been misinterpreted and misapplied by many courts across Florida, including the Third District in Deutsche Bank v. Beauvais. The Florida Supreme Court found the two actions were different events and the second action involved a new and distinct default by the borrowers.

 
“There really is no mystery as to why the Florida Supreme Court ruled that my client was not barred by res judicata in bringing the second foreclosure action,” Kass stated. “It’s simple. The debtors, Gwendolyn and William Singleton, made payments and reinstated the loan after we accelerated the debt. A few months after reinstating and dismissing the first lawsuit, they defaulted again, which is why we filed a second lawsuit and alleged a subsequent and separate default date — because there actually was a subsequent and separate default.”

 

Kass commented on the Third District’s recent en banc opinion and said, “I would agree with the dissent that Deutsche Bank v. Beauvais has created a new legal fiction. In Singleton, we had a reinstatement and then a new and separate default. For that reason, our second foreclosure was a different cause of action. I understand that the borrower in Beauvais never reinstated the accelerated loan, never made additional payments, and there was never a new or subsequent default.”

 
The four dissenting judges in Beauvais agreed and stated that Beauvais: 1) creates a “legal fiction” that acceleration does not affect the installment nature of the loan; 2) rewrites the contract provisions between the parties; and 3) rewrites the statute of limitations to favor banks. Thus, the only exceptions to the statute of limitations in Florida are capital crimes like murder and now-mortgage foreclosures. However, ONLY murder is an exception actually carved out by a statute enacted by the Florida Legislature.

 

The Florida Supreme Court failed to address is how there can legally be a new default after a debt has already been accelerated. Over the years the banks have worked to convince the courts that Singleton supports the proposition that if a foreclosure is dismissed “for any reason,” there is an automatic reinstatement of the installment nature of the loan, thereby resetting the statute of limitations period for foreclosures.

 
In an unprecedented move, the Third District took Beauvais to an entirely new level claiming that the installment nature of the loan was never affected by the lender’s acceleration of the debt. Thus, even if a bank demands full repayment, the borrower is still obligated to make monthly payments as if there were no acceleration. The courts have opportunistically misinterpreted Singleton and the Florida Supreme Court will need to clarify whether Singleton changes the meaning and effect of “acceleration” and therefore nullified the statute of limitations for mortgages.

 

 

With so many courts misinterpreting the Florida Supreme Court’s Singleton opinion, the Florida Supreme Court must clarify whether Singleton changed the meaning and effect of “acceleration” and nullified the statute of limitations for mortgages. New exceptions to the statute of limitations is a Legislature issue, not for the judiciary to decide.

16 Responses

  1. What if the bank used the promissory note as a form of line of credit therefore the bank never loaning or borrowing or provided any consideration to the consumer. What if the bank put the note the consumer signed in to account under the borrowers name with out the borrower giving the bank permission would this not be identy theft? Now what if the bank waits 30 days n claims the account that the bank opened under borrowers name n claims the account abandon n then places the note with the IRS into a REMIC Trust to by pass paying taxes and yet this REMIC is collecting interest which is the borrowers interest being collected by the borrower signature on the promissory note and what if there was a way for the borrower to CLAIM the interest that the bank was getting from this trust as a 100% tax refund n doing so by filing the proper paper work with the IRS to reclaim the account the bank claimed was abandoned that YOU never abandanded the account because it was your account all along and you have beneficial interest based on the account was in your name so YOU are entitled to the interest accumulated in this account. Once you receive the interest based on filing the proper paper work proving the bank used your promissory not as credit dont you think you could us this in court to show criminal intent by the bank since its agaist Federal Law for a bank to loan out its credit and this is what the did. Think about this WHY would the IRS refund you money if the Bank legally and lawfully borrowed you or loaned you or provided consideration they would not. But because the bank used your promissory note as a line of credit the IRS is more than happy to give the interst collected to the consumer which is theres to claim when the bank claimed the account was abandoned so the IRS now can collect from the bank the money owed when the Bank by pass paying taxes. If the Bank provided consideration there would be no reason for the IRS to give any consumer a tax refund. But because the Bank never gave anyone One Penny and used our signatures on these notes and our abandoned account to collect interest only makes sense that we are intitled to this refund because all along it was are account.

  2. And there ya have it!!! Finally your coming around to what we’ve been saying all along. The enemy is not so much the banks or even the third party interloper, carpet bagger attorney’s who have no interest in anything except fraud, theft etc… it is the JUDGE, the Clerks and the Corporate Courts themselves!!!!! Not to be rude but whenever any of my “students” speak like this I mock them and go “booo hooo” cry baby.. all I hear is crybabying.. STOP!! it will get you no where…!!
    Turn a negative into a positive!! This is great!! this is prima facia evidence that the courts are acting ultra vires and making war on the people and the Constitution. Now notice all the offices of oversight of these goings on, and gather full evidence of it being a “policy of the State” to deprive the people, citizens and even the persons of their rights under 42 USC 1983 …
    Sooner or later love is gonna getcha… sooner or later you gonna hafta sue in Federal court for depravation of rights!! and be sure to lace it heavily with RICO and since you’re a lawyer you can bring it up as interfering with your business and reliance upon the law as it is written etc … Depriving the people of equal protections of the law, Armament 14 what amounts to “involuntary servitude 13th, The right to be secure in their persons…. papers… houses and effects…. 4th, then look at the 4th article which indicates equal entitlement of rights, and privileges in all states!!!! and most importantly Art I section 10… how many times do I have to ring this bell of freedom?
    Now as to the “statutes of limitations… as to corporations and other “entities” of profit I agree,,, but I have just spend a lot of time putting together an argument that in regards to “people” who have feelings, emotions which fester, grow and an injury can increase over time there is no such thing for so many reasons. In business yes because whatever loss it may have it goes on its books is deducted is the cost of doing business and it moves on and must be able to move on.. but people are very different from persons!!
    Now I have stated for a long time that at the root of a lot of these problems is the difference between people and persons and we are being corralled into always being persons and subject to the State, instead of the sovereign people that we are.. the creators and ultimate managers of “any Form of Government”. The gov did not create us we created the government “That to secure these Rights Governments are instituted…” Sooner or later it is going to have to come back to the roots of the problem.. the government and those who are party to it have the wrong impression that it is the master of all things. WRONG! it is master only over and only within the limitations of its powers and its charters, the things it is the creator of. Can you tell your creator what to do ??? I think Not nor can any Form of Government tell the people what to do!!! If you fail to address this issue you will remain a slave to an entity of corruption!!
    Address this issue first then the rest will have a chance of working. Read the 4th Amendment
    “The right of the people to be secure in their persons, houses, papers, and effects,… Thus it is clear that “people” have rights and people have “persons” not just one “person” but many “persons” (persona, mask, personality, most private, some public and some persons are in the form of a business entity with the State which is created, organized and licensed by and through the State and subject to the laws of the state and the Statutes and its charter. See Hale V Henkel
    “Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to
    Page 201 U. S. 75
    act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not, in the exercise of its sovereignty, inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose.”
    NOW CONTRAST THAT WITH THIS THE PEOPLE/CITIZEN
    “The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the State, since he receives nothing therefrom beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.”
    So the State is “sovereign” in regards to its creations just as the people are “Sovereign” in regards to the State which we created and maintain.. however remember
    “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
    and the Constitution specifies much of this and expresses the extent of the rights of the people in Amendment (bill of rights) IX
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    As to the judges which are all imposters because they know not the constitution to which they are required to swear an oath or affirmation to support… Art VI
    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;..”
    So clearly these Judges are not judges but imposters and are bound by the Constitution which is subject to the principles expressed by the public trust which was created before the government and all “forms of Government are subject to… The Unanimous Declaration of the thirteen united States of America (in Congress assembled)
    Now further these persons are not judges because the Constitution clearly states that they only “Hold their office during good behavior”
    Art III Section I : ” The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, …”
    Shall I go on??
    ” “No legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”
    Cooper v. Aaron (supreme court 1958)”
    Art. III Section. 3. Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
    Are they not using the office to make war against the people, their principles, their laws, their property and the Constitution??? Are they not giving aid and comfort to the well known enemies of he United States and the world namely the Banksters and all of them?? yes… ARe not the other branches of government failing to prosecute and do all manner required to protect the people from these criminals? yes … is it not a long train of abuses and usurpations..
    ” Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
    Are they not engaging in …”18 U.S. Code § 241 – Conspiracy against rights
    If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
    If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
    They shall be fined under this title or imprisoned not more than ten years, or both;…”
    ” 18 U.S. Code § 242 – Deprivation of rights under color of law
    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
    So you see we have laws already for just this ungodly behavior!! time to “have and bear these arms” and put these criminals in jail… in the mean time sue the principle, the counties and the states which will cause them to settle for millions, do it over and over again and soon corruption will no longer be profitable and will cease along with its influence.
    Cry babying and saying it is not right, not fair, not judicial not within the laws is whinneee baby stuff, so do you want to be a whiner or a winner? a master or a slave, go allonger to get alonger or a do what it right and secure the rights of all people, an American’t or and American?
    Let us the people put this legislation into place which requires all public servants to pass a test every six month beginning form the date of application for office as to their knowledge (memorization of) understanding (ability to understand these principles) and accurate use (to use them properly to “effect” the peoples “Safety and Happiness”. Failure to pass constitutes a failure to be capable of holding any office and must be removed immediately.
    Now this would go a long way to them at least knowing the damn law and why it exists including the position which they choose to volunteer to be “governed” by.

  3. Years ago there was a website detailing an address at 666 Rockefeller Plaza where the judges, lawyers and banks enjoyed meeting together getting to know one another to facilitate the banks in
    the foreclosure fraud begun in 2007

  4. Tuesday 3 May 2016

    Thank you, iwantmynpv.

    For anyone who wants to know their state’s limits on mortgage contracts,
    including a notice of acceleration, this link will help:

    http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html

  5. Mn, I am not an attorney, and do not provide legal advice. However, as a fine constituent of these great united states, I will post some stuff as i come across it.

    There is a case right now in NY out on appeal that cites other cases.

    Beneficial v. Tovar.; 2015 NY Slip Op 84527(U)

    There are others right now, but you should ask an attorney in your State, or go to Google Scholar. The case citing the SOL should be based on mortgage instruments if you can find it. You can also try to find some federal cases if you cannot find state specific cases.

    Good luck my man.

  6. Tuesday 3 May 2016

    iwantmynpv:

    Do you have case law on accelerated notes, no further installment
    payments required[?], ceases as an installment contract, etc? I am not
    familiar with those as possible issues.

    thx…

    mn

  7. It’s amazing to me that the Florida 3rd DCA, in its majority decision, simply ignores the legal definition of acceleration which, according to Black’s Law Dictionary (Eighth Edition) is this: “The advancing of a loan agreement’s maturity date so that payment of the entire debt is due immediately.” The action of accelerating a mortgage clearly eliminates its installment nature and I don’t believe that the standard Fannie Mae mortgage even allows for such mortgage to be un-accelerated by any other than the “borrower”. The dissenting view in that case points out the majority’s error, but doesn’t go far enough to explain in detail that, as the majority decision also effectively re-write’s the contract, such action is a direct violation, by the 3rd DCA, of the Florida Constitution’s provision at Article 1, Section 10 which states: “Prohibited laws.—No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” If the State Legislature doesn’t have the authority to pass a law which impairs the obligations of a contract, then the Court, in its entirety, surely does not have that authority. This is clearly an issue which must go before the State Supreme Court as a matter of great public importance.

  8. All,

    See HSBC v. Buset.
    Pass this on to everyone you know.

  9. Neil, I can not remember a more disheartening post from you.
    When you state that the homeowner had not decided whether to appeal, I have a idea, why not offer to pay for it and set up a donation tab on your site for this particular case? You know more about the case than anyone and we need a win in the state of Florida.I think the people will donate, especially home owners in Florida.

    Thanks for your effort.

  10. Welcome to Illinois where Forclosres can not be stopped…
    Only delayed,

    Welcome to Illinois … Free Rent with every home purchase ?

    STANDING ON THE SIDELINES ..
    .EVERY 5 YEARS until Maturity

  11. So, here’s one to chew on… if you do not raise standing as an affirmative defense… how is it waived. By the SOL reasoning set forth in Florida… standing is not waived because the loan does not mature until, let’s say 2034. Would a Defendant not have a right to challenge standing on the future payments owed under the same SOL argument.

    For example, if the Complaint or NOD no longer accelerates the terms of the loan, thereby allowing the lender to foreclose all future payments due under note, and eventually all rights of redemption, a homeowner could theoretically challenge the standing of each subsequent payment missed or future payments due on the note until maturity.

  12. This is one of my arguments in NJ…the bank dismissed their own case after the refused to produce a witness to testify under oath after the judge ordered a plenary hearing to address the inconsistancies.

    They re-filed a new FC but the SOL had run and they were out of time. They did change the default date on the new complaint, but it was never brought up because the judge dismissed my affirmative defense that cited the SOL…when I motioned for reconsideration, I included the NJ Federal Bankruptcy case that had recently addressed this issue. The Federal Judge thoroughly and painstakingly dissected the entire issue and statutes …and he gave the house to the homeowner, $650,000.

    Wells Fargo appealed his decision and a female District Court judge reversed the Bankruptcy judge ..but her written decision was weak and failed to explain how and why the Bankruptcy judge was wrong. So now it is up on appeal from her reversal … But I have spoken to lawyers who know the Bankruptcy judge and they all say he is brilliant and would never have given the house on a SOL if he was not 100% sure that the accelleration caused the clock to start ticking on the bank. The banks right to utilize a clause within a contract is there, but they are thus changing the terms of the contract once they trigger that clause. They are creating a new maturity date, and under the state statutes it is clear that once anyone accellerated , the clock begins to tick ..this is true for notes too under a statute that governs notes, it is clear that after the time has run, if the debt has not been collected, then it is over and done, the note is unenforcable after the SOL has run. The BKR Judge felt that if the state statute governing the note made it unenforcable, then the mortgage accelleration should be viewed the same way.

    The maturity date is changed once the bank triggers the clause within the contract that accellerates. You cannot have two differing maturity dates …

    In my case the judge argued that my 30 year mortgage maturity date is the real maturity date …not the accellerated date of the foreclosure where the bank articulates in the complaint that they are utilizing the accelleration clause in the mortgage contract and “,do hereby declare and are electing to accellerate, and by doing so all of the entire debt is due right now.”

    My argument is that this language used makes it clear that they are utilizing the accelleration clause within the mortgage contract and are creating a new maturity date..where the full debt is now due.

    The judge kept insisting that my mortgage clearly states the year of maturity as being the year 2034 ….30 years from the 2004 closing.

    I kept arguing that the clause they utilized changed the contract and created a new maturity date ..They demanded the entire debt now.

    I told the judge “the contract cannot have two different maturity dates” , that they did in fact choose to change the maturity date of their own free will ….nobody forced them to accellerate. But the law says that once you accellerate and attempt to collect on a mortgage or a note, then the SOL begins to run.

    My judge complimented me for what he called a brilliant argument, and said I did better than the attorneys he listens to every day , BUT he had to rule against me because he feels “the date stated on the mortgage is the maturity date” …2034 …and the SOL shouldn’t start running until 2034 …meaning the bank has until 6 years after that to foreclose. HE believes the bank can litigate this foreclosure over and over until 2040

  13. After 7 years 8 months of being in foreclosure, winning the original on lack of standing after 5 years, and thinking that it was over, I read local foreclosure lawyer Matt Wiedners post “THERE IS NO WINNING A FORECLOSURE SUIT IN FLORIDA” citing a 2DCA ruling that the banks only had to change the dates of default.
    I knew then .that they would refile.
    I filed rescission 02/11/2009 within the 3 year time frame.
    I used this to beat the summary judgement hearing last year and all this just makes me think that at 64 I will not live long enough to see the end.
    I will post more when I have the energy..

  14. When the pension funds for the judges and clerks reach bottom, maybe we will have justice for the homeowner. From my research, they appear to be starting below 50% from what they were at the beginning of the crisis–maybe more.

  15. Statute does not cover acceleration, Par. 22 of the mortgage governs acceleration. The Court’s in Florida apparently are interpreting the terms of the mortgage as well, however incorrect…

    When a mortgage is accelerated, it ceases as an installment contract and unless a lender takes affirmative measures to de-accelerate the terms of the loan (accepting installment payments) or it only sued on the payments in default… the statute runs.

    When a mortgage is accelerated, there are no longer any any installment payments due.

    Second, when the case was dismissed the defaulted payments covered under the summary judgment decision are barred res judicata, or at a minimum issue preclusion bars relitigating those… well I guess… simultaneous defaults… if there is such a term.

  16. It appears that the State of Colorado is much like the state of Florida:( It is interesting that the State of Montana stood up to the “banksters” in the Morrow V. Bank of America Case. Just sad that Bank of America quickly settled out of court on a private and confidential basis once the case was kicked back down to the lower court, once the Montana Supreme Court Ruled against Bank of America, as well as the Montana Attorney General filing the Amicus Brief in support of the Morrows. I love what Justice Laurie McKinnon stated in the case about the “negligent misrepresentation” and “the left hand of Bank of America not knowing what the right hand is doing”- just like in my case with five (5) loans that were originated by Countrywide.

    I wonder how many states might have tried to use the money they received in the National Mortgage Settlement to pay down debt like Gov. Jerry Brown who got caught out in California with his hand in the cookie jar!!! I fear Colorado did the same thing as all the government officials, the state CFPB, and most congress people just turn a deaf ear and don’t even acknowledge receipt of letters and faxes seeking help.

    Bottom line is if you don’t have a ton of money to buy the best legal representation to prove, without a doubt, all the phony and fraudulent documents that lawfirms even send to you as supposed proof you are SCREWED:( Keep up the good work Neil. Semper Fi!!

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