Message to homeowners: Heads I win, tails you lose. Between Bartram and Desylvester the recurrent theme emerges as doctrine: If the homeowner wins a case the skids are greased for the bank to win the next round. The winner is treated as the party who SHOULD have lost and the loser is treated as the party who SHOULD have won. This fight is far from over.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
“Following the Florida Supreme Court’s recent decision in Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493, 2016 WL 6538647 (Fla. Nov. 3, 2016), courts were left to interpret how Bartram would affect lenders’ reliance on breach letters issued more than five years prior to a foreclosure proceeding initiated after the dismissal of a prior action. Florida’s Second District Court of Appeal answered this very question in its opinion in Desylvester v. Bank of New York Mellon, et al., which indicates that lenders need not send a new breach letter in subsequent foreclosure actions filed after the dismissal of a prior foreclosure if the borrower has failed to cure the initial default.*In Desylvester, the Second District Court of Appeal affirmed the entry of final judgment of foreclosure in favor where the bank initiated a successive mortgage foreclosure action premised on the same date of default alleged in a prior foreclosure action, including “all subsequent payments due thereafter.” Consistent with the Bartram decision, the Court’s opinion confirms that, following the dismissal of a prior foreclosure action, a mortgagee is not barred from filing a subsequent action premised on a “separate and distinct” date of default––including a borrower’s continuing state of default––under the same note and mortgage.”
An ounce of truth and a lot of craziness. I think Bartram stands for the proposition that the statute of limitations does bar actions for payments due before the beginning of the current statutory period. As I suspected we have the Florida Supreme Court thinking they fixed a problem by legislating from the bench — returning the parties back to their original positions except for payments barred by the statute of limitations.
The second DCA has muddied the waters further in Desylvester v Bank of New York Mellon. The courts are continuing to search and twist looking for a hook on which they can hang their preconceived notion of how the case should turn out — i.e., for the banks. Dozens of SCOTUS decisions say these courts (not just in Florida) are getting it wrong and overstepping constitutional boundaries resulting in unfair consequences. This fight is not over.
The 2d DCA here stretches the problematic view of the Florida Supreme Court in Bartram v US Bank. A default letter was sent for an alleged default that is now barred by the SOL. I suppose it might be logical to say that the creditor could still file a foreclosure action for the payments that are not barred by the SOL. But this court goes further and says that the original default letter can still be used as the basis of the new foreclosure action.
The court is skipping over obvious ramifications of the Bartram decision whether you think that decision was right or wrong. If the parties are returned to their original position except for the payments barred by SOL, then the homeowner still has a right to a default letter that spells out the real number, as amended by application of the SOL, that is required to reinstate, and the disclosure of how that number was computed. Removing that requirement is removing (1) a basic element of the alleged “contract” (i.e., the mortgage instrument, paragraph 22 in most such instruments) and (2) the application of statutory laws governing the conditions precedent to filing foreclosure.
The 2d DCA opinion is plainly wrong and wrongful. Again pushing aside the notions that foreclosure is an action in equity that should only be used as a last resort, the Court has essentially stripped the homeowner of basic protections provided by statute and provided by law. The Bartram decision was bad enough. The 2d DCA decision is basically reloading the gun for what is at best a questionable party to foreclose, placing the homeowner on his/her knees and cocking the gun for the bank or servicer — neither of whom have any right to even be in court.. Under Desylvester the losing party in the first foreclosure is treated as the winner and the winning party is treated as the loser.
All of which prompts the the larger essential question: With the courts undermining due process at every turn in ruling for the banks under a political theory that the fall of the big banks will bring down the world order, how is anyone left going to trust in our institutions? And assuming the current polls and trends continue, what will be left of our society that will be worth saving?