Archive for August, 2015

Exceptions to Established Law in Foreclosure-World … Based on “Equity”

I’m extremely disappointed at an opinion I just read, one which declines to apply the statute of limitations in the foreclosure context based on “equity,” i.e. because (or at least partly because) the court doesn’t deem it fair for homeowners to get a “windfall” by a mortgage being eliminated.  Here, have a look.

The legal “analysis” in this opinion is contrary to years of established law on the statute of limitations, particularly when one looks to case law outside of Florida (which none of the cases in this context EVER seem to do.  Sigh.).

Today, though, I don’t want to talk case law.  I’ve done that before.  Today, I want to just talk (vent, perhaps), as if I were chatting with a (non-lawyer) friend.

The statute of limitations exists in every legal context imaginable except murder.  Every single one.

Imagine a family of seven.  A married couple with five children, all playing happily together in the front yard.  If a drunk driver hops the curb and mows them all down, killing three and paralyzing two others, but the ensuing wrongful death/personal injury suit is brought one day after the statute of limitations lapsed, then the SOL bars that lawsuit.  Zero recovery.  It doesn’t matter if the plaintiff’s lawyer was headed to the courthouse to file suit on the day the SOL ran but couldn’t do so because he was struck dead by lightning; the SOL would still bar recovery.  An equitable exception?  Based on fairness?  Sorry; doesn’t exist.  Go on your way, drunk driver; you owe nothing.

Imagine the worst crime your brain can fathom (short of murder).  Rape.  Attempted murder.  Kidnapping.  No matter how heinous, if the state does not promptly pursue criminal charges, the statute of limitations is a complete defense.  It doesn’t matter that said defendant was guilty as sin or that the offense committed would make Ted Bundy look like an angel; that defendant walks free.  An equitable exception?  Based on fairness?  Nope; doesn’t exist.

Foreclosures, though, are different.  Well, they aren’t different … but they’re treated differently by our courts.

In foreclosures, after all, we must protect the banks at all costs.  And we mustn’t let those deadbeat homeowners win!  As a result, while our courts won’t create an exception for that wrongful death suit caused by the drunk driver, or that criminal defendant who raped and attempted murder, our courts will create such an exception in foreclosure-world.  Because, by golly, we just can’t allow deadbeat homeowners to get a windfall!  And we can’t prevent a bank from foreclosing!  Sure, we might let a case be dismissed on occasion based on standing, but never the elimination of a mortgage!

If this sounds a bit like a vent, then, well, it is.  I’m angry.  Well, perhaps not angry … bitterly disappointed.  And you should be too.  We should all feel that way right now.  This isn’t about the result reached, either.  If the law truly says the SOL doesn’t apply, then so be it.  (That’s all foreclosure defense lawyers want – follow the law.)  But dang it, don’t tell me that “equity” is part of the analysis, because I know darn well there are many instances in the law far more deserving of an exception to the SOL than foreclosure cases … and if equity doesn’t apply in those instances, it sure shouldn’t apply here.

Fortunately, this isn’t the end of this issue.  Let’s hope the Florida Supreme Court gets it right.  🙂  Oral argument on that issue is set for November.


Mark Stopa

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