http://www.5dca.org/Opinions/Opin2014/042114/5D12-3823%20op.pdf
This effectively removes all limits on the filing of a new foreclosure action, no matter how many times the case has been previously dismissed
This decision has a critical impact for homeowners who have had prior foreclosures dismissed, and though they were safely beyond the five-year mark. This new decision means the bank does get to refile, and homeowner who previously though they were safe may not be. However, initial analysis shows the opinion is limited to the application of one particular subsection of the statutes, and others exist that may offer relief
http://floridaforeclosurefraud.com/wp-content/uploads/2014/05/004-Reply-brief-123823_131_07252013_03165966_e.pdf
Sunday, February 8, 2015
11th Cir Rules TCPA Allows Prior Express Consent Through Intermediaries, Hobbs Act Precludes District Court Challenge to FCC Rulings
The U.S.
Court of Appeals for the Eleventh Circuit recently held that the TCPA allows
callers to obtain consent through intermediaries.
The Court
also held that a 2008 FCC Ruling interpreting the “prior express consent”
defense applies to all creditors and debt collectors, including medical debt
collectors, when calling wireless telephone numbers.
In
addition, the Eleventh Circuit held that, pursuant to the Hobbs Act, the
district court lacked jurisdiction to consider the validity of the 2008 FCC
Ruling.
A copy of
the opinion is available at: http://media.ca11.uscourts.gov/opinions/pub/files/201314008.pdf
Fla 1st Dist App Ct Rules Prior Servicer's Records Not Properly Admitted Into Evidence
The
Florida District Court of Appeal, First District,reversed a trial
court’s final judgment of foreclosure, and remanded for dismissal of the action
for lack of prosecution.
In so
ruling, the Court held that the successor servicer’s witness offered only
general knowledge of ordinary mortgage practices to support the prior servicer’s
payment history records, which was insufficient to support the admissibility of
those records.
The Court
also held, given a lack of record activity at all times material, combined with
the mortgagee’s predecessor in interest’s failure to file a statement of good
cause prior to the hearing on the borrower’s motion to dismiss for lack of
prosecution, that the relevant Florida Rules of Civil Procedure mandated
dismissal of the action upon remand.
Florida App Ct (3rd DCA) Holds New Foreclosure Action Time-Barred, But Mortgage Lien Not Extinguished
The Third
District Court of Appeal, State of Florida, affirmed a trial court’s
ruling that a foreclosure complaint was time barred because the statute of
limitations started to run when the loan was accelerated in connection with a
prior foreclosure that was involuntarily dismissed without prejudice.
However,
the Court reversed the trial court’s determination that a mortgage lien becomes
null and void once the statute of limitations expires.
US Sup Ct Rules TILA Only Requires Written Notice of Rescission w/in 3 Yrs of Consummation, No Lawsuit Required to Exercise Right of Rescission
The U.S.
Supreme Court recently held that a borrower exercising his right to rescind
under the federal Truth in Lending Act only needs to provide written notice to
the lender within the 3-year period under 15 U.S.C. 1635(f), and does not need
to file a lawsuit within that period in order to exercise the right to rescind.
On
February 23, 2007, the borrowers refinanced the mortgage on their home. Exactly
3 years later, on February 23, 2010, the borrowers mailed a letter attempting to
rescind the loan.
The lender
responded to the rescission letter on March 12, 2010, refusing to accept the
rescission as valid. The borrowers filed suit in U.S. District Court on February
24, 2011, four years and one day after the loan closed, seeking a declaratory
judgment of rescission and damages under the federal Truth in Lending Act.
The
District Court entered judgment on the pleadings for the lender, ruling that a
borrower must file suit within 3 years of the date the loan was consummated in
order to exercise his right to rescind the loan under TILA, 15 U.S.C. 1635(a)
and (f). The Eighth Circuit Court of Appeals affirmed, and the borrowers
appealed to the U.S. Supreme Court.
The U.S.
Supreme Court ruled that the Eighth Circuit’s reliance on Kieran v. Home
Capital, 720 F. 3d 721, 727-728 (2013), which held that unless a borrower has
filed suit for rescission within 3 years of the transaction’s consummation,
section 1635 (f) extinguishes the right to rescind and bars relief, was error.
The Court
then turned to 15 U.S.C. 1635(a), which explains how the right to rescind needs
to be exercised. Relying on the statutory text that a borrower has the right to
rescind “by notifying the creditor, in accordance with regulations of the Board,
of his intention to do so”, the Court held that as long as the borrower gives
written notice within 3 years after the transaction was consummated, rescission
under TILA is timely and the statute does not also require the borrower to sue
within 3 years.
Turning to
TILA section 1635(f), the Court clarified that it governs when the right
to rescind must be exercised, but says nothing about how the right is
exercised.
Reversing
the Eighth Circuit’s judgment and remanding the case for further proceedings,
the U.S. Supreme Court concluded that because the borrowers mailed their written
notice of intent to rescind within 3 years after their loan was consummated,
that is all they needed to do to exercise the right under TILA and the trial
court erred in dismissing the complaint.
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