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.

 http://www.3dca.flcourts.org/Opinions/3D14-0575.pdf

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.

 

 http://www.supremecourt.gov/opinions/14pdf/13-684_ba7d.pdf

 

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.

 

Never Forget

Why Noah Wandered

How to Find Records on Failed Banks

First place to start:
http://www.fdic.gov/bank/individual/failed/banklist.html

If the failed bank was regulated by the State, check with the State’s financial/banking office for stored records. In Florida anyway, that would be through the office of the Chief Financial Officer, an elected Cabinet position under whom someone is appointed to oversee state regulated banking institutions.

 

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Bankruptcy Fee Increase

The Judicial Conference of the United States met on March 11, 2014, and approved changes to the Bankruptcy Court Miscellaneous Fee Schedule effective June 1, 2014. A summary of those changes follow:

The fee for filing a complaint increases to $350.00.
The following administrative fees are increased to the totals noted:
- For the filing of a petition under Chapter 7, 12, or 13, $75.00.
- For the filing of a petition under Chapter 9, 11, or 15, $550.00.
- When a motion to divide a joint case under Chapter 7, 12, or 13 is filed, $75.00.
- When a motion to divide a joint case under Chapter 11 is filed, $550.00.

As a consequence the increases effective June 1, 2014, the full fee for filing a -
Chapter 7 will be $335.00
Chapter 9 will be $1,717.00
Chapter 11 will be $1,717.00
Chapter 12 will be $275.00
Chapter 13 will be $310.00

Chapter 15 will be $1,717.00

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Home Improvement Loans Available in Clearwater

CLEARWATER, Fla. – The City of Clearwater Economic Development and Housing Department may be able to help with necessary code-related repairs needed in the home. Single-family detached homes, townhouses or villas with a comparable sales value from the Pinellas County Property Appraiser that does not exceed $150,000 may benefit from the City’s Housing Rehabilitation Loan Program. Homes must be occupied by the owner. Loans available are up to $25,000.

Household income must be 80 percent or less than the area median income. For example, a one person household would have to have an income of $32,150 or less. A four person household would have to have an income of $45,900 or less. Other eligibility criteria may apply.

Assistance is in the form of a deferred payment loan or a low-interest loan, depending on income. 
Some examples of work that could be funded are roof system repairs including soffit/fascia; plumbing repairs; electrical repairs; replacement of doors and/or windows; and ADA modifications.

For information regarding the Housing Rehabilitation Program, contact Terry Malcolm-Smith at (727) 562-4036.