“The issue really boils down to the question of whether we are going to apply simple direct rules that favor nobody in particular (blind justice — remember that?) or if the Courts are going to create monumental complexity and uncertainty under their past “Theory of Everything,” to wit: let the banks keep coming back until they win. This theory obviously ignores completely the doctrine of Finality and further construes due process in a way that will come back to bite the courts.”
So we have a very simple case with a very simple conclusion on the issue of statute of limitations. The premise is simple — what you do, in a legal sense, always matters if it is relevant. There is nothing more relevant than an alleged lender sending a notice of delinquency followed by a notice of acceleration informing the “borrower” that their debt is now due in full.
Many courts have attempted to allow the parties to come back repeatedly on the premise that each payment starts a new period of limitations. Those courts are using the same twisted logic that got us into the mortgage meltdown and ultimate the foreclosure nightmare in the first place. They are inventing a legal fiction: that somehow the acceleration doesn’t count if the bank loses but it does count if they win. This is pure nonsense from Gulliver’s Travels.
In their never-ending quest to “protect the banks” (a clear violation of blind justice) the courts in Florida for example would actually allow a bank or trust who had utterly failed to prove they owned the loan (or even represent the creditor) to come back and say now we own it. So after losing spectacularly and after using fraudulent, fabricated, forged, backdated documents the Courts would allow the bank or trust, the courts would allow a new foreclosure based upon “subsequent missed payments.”
There are no subsequent missed payments when the loan is accelerated. Acceleration by definition means that the alleged lender or creditor or “holder” had elected NOT to seek individual payments but instead to seek the entire balance as set forth in the mortgage. The theories in Florida and elsewhere would allow the banks to keep coming back to court on a case that has been decided on its merits against the forecloser and for the borrower ( and by the way there are thousands of such cases now). This same twisted theory is going to be sued against the court system on a variety of real and test subjects, where the courts are confronted with their own incorrect thees that mean “it’s never over.”
How is anyone in the marketplace ever going to know that they have title or ownership to land, loans or anything else? It is never over under many current “doctrines.” The issue really boils down to the question of whether we are going to apply simple direct rules that favor nobody in particular (blind justice — remember that?) or if the Courts are going to create monumental complexity and uncertainty under their past “Theory of Everything,” to wit: let the banks keep coming back until they win. This theory obviously ignores completely the doctrine of Finality and further construes due process in a way that will come back to bite the courts.
This NY decision is a breath of fresh air. The court does not decide who should win and then apply twisted legal reasoning until it comes out OK for the banks. Instead it goes back to c centuries old law — if you commit a legal act like acceleration that ends the discussion.
If the acceleration is authorized by contract then the full balance has been accelerated and the entire principal balance along with all other fees, costs and expenses are now due.
If the forecloser has failed to file a foreclosure suit, or if the forecloser has already lost the case because the Judge saw through the falsified “proof” AND we are past the the time- bar for the statute of limitations, the matter is over.
To rule anything else would be to read into the statutes of limitations and interpret a statute that is perfectly clear on its face. As in Jesinoski, the final ruling will be that courts have no power to read extraneous theories or conditions into a statute that is clear on its face. That breaches separation of powers between the legislative and judicial branch of government. As stated in other case law and Jesinoski, courts can only “interpret” the statute where they find an ambiguity and then they must rule in the narrowest way possible to close out the ambiguity.
This NY Court found the obvious: the statute of limitations says what it means and means what it says. And that is because of the long running doctrine going back centuries that the Courts are the FINAL point of dispute. Courts that have ruled otherwise are simply ignoring the plain wording of the statute. Florida?
Filed under: foreclosure