“Besides pertaining to some field of law, what do foreclosures and murder have in common?”

So here is a question that should upset a lot of you out there:

“Besides pertaining to some field of law, what do foreclosures and murder have in common?”

I will refrain from answering this for at least one paragraph, and allow you to give this an-depth pondering, as this line of questioning is spurred by an extremely recent decision out of Florida’s First District Court of Appeals.  In fact, the opinion that memorialized this decision was filed yesterday, so “recent” might be an understatement.  In the sake of time and potential legal search engine charges, I’ll just leave a link to the opinion right here for your perusal.  In the linked opinion, handed down in Nationstar v. Brown, the court is attempting to determine whether the passage of over five years since the acceleration of debt bars the foreclosure action filed after that five year mark.  This five year mark after acceleration is what is commonly known as the statute of limitations, and brings us to the answer to our question:

“Neither one is subject to a statute of limitations!”

Okay, that might be a bit of hyperbole, because a statute of limitations does still exist (in the technical sense) in the world of foreclosure.  However, that foreclosure statute of limitations has seen a barrage of changes that negatively impact the common person while protecting the banks that are profiting off of the mortgage transaction in the first place.  Just last year, the courts decided that the borrower’s date of default will no longer begin to run the 5 year limitation period in which the lender may bring a foreclosure action.  Instead, the date of default has been replaced by the date of acceleration (which courts are now holding to be the date on which the first foreclosure suit is brought).  While this might sound like a technical specificity that doesn’t matter to anyone without a J.D., this distinction is one that should have had the masses in uproar (like these hockey fans) [1].  Due to this little change in verbiage, the plaintiff bank now controls the amount of time in which it must bring its foreclosure action before the right to bring that action is extinguished.  Incredibly, the date of filing of a foreclosure suit is now the date on which the limitations period begins to run.   Follow?  The bank now dictates when the bank’s right to foreclose is extinguished, all by exercising its right to foreclose.

The latest change to the foreclosure statute of limitations is seen in the Brown case.  Here, the court refused to follow the statute of limitations based upon “equity.”  The court, in its reasoning, even states that its ruling is in an effort to avoid “unjust enrichment of a defaulting mortgagor.”  So, in short, the court is refusing to apply the black letter law because it preemptively views each defendant borrower as inherently culpable and condemnable, and must protect the innocent banks from their own shortcomings.  As we see above, the banks get to control when the statute of limitations run – so do the courts really need to protect them from being unable to adhere to their own imposed timeline?

So, foreclosure and murder, murder and foreclosure.  More accurately, I should write “foreclosure and capital and life felonies, capital and life felonies and foreclosure,” but that doesn’t exactly roll off the tongue.  An individual can literally go out and commit any crime that is punishable by less than life in prison, [2] so long as they do not fail to pay their mortgage, and find safe harbor in the applicable statute of limitations.  If an individual happens to go out and commit anything other than a capital or life felony, the court must adhere to a strict statute of limitations that ranges from one to four years.  Yet if you are unable to pay your mortgage, you better not get too comfortable in that bed of yours, ever.  Somehow, committing a felony affords you more statutory protection (at least in this regard) than being unable to pay your mortgage.

Now let’s look at this from another angle, victimology [3].  There is a statute of limitations in any wrongful death action, and it is strictly adhered to.  Once the statute of limitations runs, sorry.  Consider this: the parents of an 11-year old brought suit against the foreign manufacturer of a candy that was made with a gel that bound the candy together, but did not break down well in the moisture and warmth of the mouth.  The child had run to her father for help when the candy sealed her throat and prevented her from breathing.  The father watched his eleven year old daughter die, and the jury determined that the snack was unsafe and awarded the family $16.7 million.  Had the suit not been filed within the applicable statute of limitations, the family would have received nothing, no excuses.  So if it is not equitable to disregard the statute of limitations to protect that family, how do we reconcile doing so to protect big banking from an issue created by their own misstep?

If someone you know is dealing with a foreclosure in the state of Florida, there are still multiple defenses (including certain aspects of the statute of limitations) that can provide protection.  Contact Mack Law Firm Chartered for a consultation at (941) 475-7966, or email us through http://www.macklawfirm.org/contact/.

[1] Not like these hockey fans.  We at MLF are not advocating rioting.  Also, don’t lift with your back, it’s poor form.

[2] Other than a capital or life felony (punishable by life in prison – mostly heinous sex crimes on a minor and kidnapping)

[3] The study of the victims of a crime or offense, and the psychological effects on them.