The Florida 3rd District Court of Appeals is writing law instead of applying it. Its convoluted legal contortions reveal a bias that should result in recusal. Its most current ruling turns legal analysis into a game of Russian roulette in which if the gun is pointed at the head of the homeowner, all chambers are loaded while if it is pointed at the head of a bank, all chambers are empty.
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There are a number of statutes of limitations that arise out of an alleged mortgage, an alleged default and an alleged right to force the sale of somebody’s homestead. Many courts are still stuck in the myth that the mortgage crisis is solved by forcing homeowners to bear the brunt of all the illegal acts, fabrications, misrepresentations and fraud caused by banks, servicers and trustees. The 3rd DCA is one of those courts.
While the members of such courts might verily believe that they are protecting our country from chaos and collapse, they are in actuality perpetuating the great recession and the theft of wealth from households whose income drives 70% of the entire economy.
According to the 3rd DCA, the application of the 5 year statute of limitations would somehow render the other statutes a nullity. This conclusion is completely erroneous and unsupportable, in my opinion. Based upon their most recent ruling (reported in the link above) a 2006 default on a 2001 30 year mortgage loan would start the statute the running of the statute of limitations by all accounts and I agree — especially where the lender took the extra step of accelerating all payments due throughout the loan period (2001-2031).
But their ruling would also bar the homeowner from raising the statute of limitations as an affirmative defense even after the five year statute had run. The court intentionally ignores the action taken by the lender and essentially re-writes the contract and the law to give the lender the option of suing any time up until 2038 for that default based upon the ridiculuous notion of “subsequent defaults.” Since the alleged lender would that was completely ignored by the lender would not be barred by any statute of limitations until the year 2038.
Filed under: foreclosure |