If the PRINCIPLE and interest, etc., etc. was previously accelerated, then shouldn’t the PRINCIPLE as well as interest, etc., be barred by SOL in any subsequent action, and there could then be no subsequent basis for “default”? I mean, “default” on WHAT? – a time-barred debt of PRINCIPLE?

The 5th DCA’s unsound reasoning appears to have essentially created a new tolling mechanism; arguably, it would be equally applicable to ALL collection actions on claimed debts based on contracts that are ALSO (like mortgage foreclosures) supposed to be time-limited by statute. Therefore, the 5th DCA has indeed done Florida consumers wrong by gifting ALL debt collectors (based on written contracts) the ability to circumvent the state’s SOL statutes by simply sending out a fresh demand for payment very five years. It is already apparent that “banks” are purporting to “accelerate” the same claimed debt that was previously accelerated by itself or some previous “bank.” And since often times the foreclosure action itself is the “notice of acceleration,” stay tuned for an explosion of foreclosure filings based on what should be stale claims barred by SOL.

SOL is NOT the same as res judicata, which the Supremes had said may not NECESSARILY apply to mortgage foreclosures, but which the 5th DCA reads as “does not apply” in mortgage foreclosures.

Florida’s pro-consumer groups (if they exist at all) – who apparently stand silent on the sidelines throughout the past six years of this foreclosure mess in the judiciary – need to WAKE UP and voice their outrage over this blatant judicial activism by the 5th DCA.

For this decision to hold any merit the court would have to require the bank to file a formal ‘rescission of acceleration’ with the court and show a ‘willingness’ to once again accept monthly payments. Since the acceleration is usually ‘announced’ via Lis Pendens ….and the bank is no longer willing to accept anything less than ‘payment in full’ it is only fair for the homeowner to expect a formal rescission by way of a court filing in order to stop the Statute of Limitations. Furthermore the bank must be required to show a willingness to once again accept individual monthly payments and apply them to the home owner’s intended target…not to previously missed payments, past penalties and interest. Fair is fair. Furthermore this twisting of the Statute should only apply from this point forward. It should not apply to any case that has already exceeded the Statute of Limitations. Banks should not be able to hold people hostage indefinitely. 30 years is a long time and people’s circumstances change. Banks should not be able to wait for years or decades until it is ‘convenient for them’ to walk in and take possession or avoid liability and maintenance costs by letting properties sit empty for years being vandalized and bringing down neighboring property values in the name of the defaulting homeowner. They should not be allowed to loan money on more properties than they can ‘carry’ in case of default and 5 years is not an unreasonable amount of time to be expected to conclude a foreclosure. Where the heck are the decent defense attorneys?

Yes. Chapter 7. Filed March 18, 2008. Discharged June 25, 2008. For the first couple of years I would call the bank every month and ask them to foreclose. I wanted the house out of my name so I could get a fresh start. They never once told me there was a case in litigation. I had no idea how it worked. I figured the bank would march right down to the courthouse and walk out with the title 15 minutes later. I didn’t realize the house would sit in my name for the next 7 years. Can you imagine the condition of the house after sitting empty and being vandalized by the local neighborhood kids. I’m so lucky no one was hurt on the property. It is the corner in the neighborhood where the school bus stop 4 times a day. In addition there is a day care across the street. How careless to leave the house unattended and open to vandals, to not keep up the yards and just let it sit in my name so they wouldn’t have any of the liability. Now the Florida court says they have 35 years to come along at their convenience, after they have already accelerated years ago, to walk in anytime they please and take the house back. That’s Communism. I thought we lived in a free country and we’re protected by a judicial system that played by the rules. I do have an attorney, yes. But I don’t have any confidence in him. He’s from Tampa. He sounded good until I gave him his retainer and then he seemed to lose interest quickly. It is his opinion we should wait until ‘they’ make a move. He has a blog but I think it’s just a recruitment tool. Honestly I am beginning to think I should represent myself. I haven’t been able to find an attorney who has a clue as to how all this works with the Statute of Limitations defense. None that have given me the least confidence that we can walk into a courtroom and walk out victorious. To me it seems open and shut. They accelerated my loan nearly 7 years ago. I stepped aside so they could foreclose. I surrendered the house. I did not use the situation for my own gain or benefit. I did not impede them in any way or try to make it difficult. They dropped the ball. I believe it’s because they don’t have the paperwork necessary to foreclose and until they can manufacture it they are between a rock and a hard place. They did try once. David Stern ‘ case is a joke. You can tell the assignments were forged and the allonges was manufactured after the fact. Everything was robo-signed. It was thrown out of court by a very astute judge. In January 2014 I got an acceleration warning from the new servicer giving me 30 days to catch up the loan. It is now May 2. Nothing.

ALL states regardless if judicial or non-judicial, must have a mortgage or Deed of Trust on public records in order to foreclose. At the purchase of the home from the family member was it an actual purchase using a lender or was it a cash sale or was it just a Deed filed? How do you know there wasn’t already a mortgage outstanding on the property? If there was and it was not paid off at the Deed transfer it would still be a valid debt, regardless of who takes title. That’s why you always have a title company or an attorney issue title insurance.

Mark – OMG! Please tell me that you have an attorney representing you! If you wiped out the mortgage in the BK you must have filed a Chapter 7 to include the home and that would be the end of it. They would have filed for foreclosure and taken the home. Because of the BK you would not be held responsible for the mortgage or payments or anything once the BK was discharged. Are you telling me that they have not filed the foreclosure action? You should be consulting an attorney (and not the BK attorney). Your Trustee in the BK should be held accountable as well. What state are you in? This is unbelievable that this is happening to you….

Exactly. Wait until unsecured creditors realize this. Any past due debt will be collectable forever as long as they send out a monthly statement claiming a new payment is due.