As a further sad saga on the false hope of Quiet Title lawsuits being a fabulous answer to homeowners trying to invalidate their mortgages, a Florida foreclosure defense attorney who tried the scheme on his own property is now missing and has absconded with over $3 million that was in his law firm and title company trust accounts. The Boca Raton Police, Palm Beach County Sheriff Office and the FBI are all investigating. The scheme to eliminate the homeowner’s mortgages was discussed in my last article, QUIET TITLE MORTGAGE FORECLOSURE DEFENSE MERITLESS IN FLORIDA and before that in QUIET TITLE ELIMINATION OF MORTGAGE ATTACKED BY FLORIDA AS DECEPTIVE.
Timothy McCabe tried the novel textbook tactic out of the playbook that some foreclosure defense attorneys have promoted. According to local news reports, including today's Sun Sentinel, in December 2012 McCabe applied to the court for a final judgment to quiet title of a property he owned. The loan was originally provided by AmNet Mortgage, but was later sold to US Bank, to whom some payments were made by McCabe. Notwithstanding McCabe’s knowledge of US Bank being the lender, McCabe served the complaint on AmNet Mortgage, not US Bank, and when AmNet Mortgage did not timely respond, he obtained a clerk’s default against the defendant and applied to the court for a final judgment declaring that McCabe was the owner of the property without the lien of the mortgage now held by US Bank.
The trial court judge however is known to be bright and no pushover. The judge looked at the public record and saw that McCabe was in a foreclosure suit on the same loan, but the plaintiff in that suit was US Bank, not AmNet Mortgage, and saw that the service of the suit was on AmNet Mortgage and not US Bank. Having unraveled the scheme, the trial court judge said in his opinion, “The actions of these attorneys show willful and intentional professional misconduct and intentional fraud upon the court and contempt of court”. He then referred the matter to the Florida Bar for further investigation.
The Florida Bar has since filed a disciplinary complaint against McCabe and his law firm partner because of the matter. This week it sought an emergency disbarment of McCabe.
The next day after the filing of the bar complaint, McCabe took off, leaving his wife and children without a clue as to where he is. He also emptied the money from the escrow accounts.
The public needs to know that these quiet title actions when used to defeat a mortgage are usually bogus and not in good faith. Attorneys that promote the scheme are typically not well educated in the concepts of quieting title. They should be scrutinized carefully. If it seems like it is too good to be true, it usually is not true!
There are situations where a quiet title action is appropriate, Last month an investor that buys notes and mortgages and uses us to advise him, brought a loan package for us to perform due diligence. The foreclosure suit had been dismissed by the court and an new suit had not been refilled for over one year. The promissory note that had been in default was defaulted 5 years and a month earlier. Clearly the promissory note was no longer enforceable by an action to collect the money because more than 5 years had passed since the notice of default, and there was no pending lawsuit to enforce the contract. In Florida, the this type of written obligation must be enforced within 5 years of a declared default or the "statute of limitations" bars enforcement thereafter. [UPDATEED JULY 2015 - WHETHER OR NOT THIS PROMMISSORY NOTE IS VALID AFTER 5 YEARS FROM ITS ACCELERATION BY THE LENDER IS AN ISSUE BEFORE THE STATE SUPREME COURT. UNDER PRESENT LAW AS INTERPRETED BY MOST COURTS IN FLORIDA, THE NOTE CAN BE SUED UPON FOR DEFAULT FOR EACH MONTH OF NON-PAYMENT, SO THE 5 YEARS ONLY APPLIES TO COLLECTING MONIES DUE MORE THAN 5 YEARS BEFORE THE SUIT IS FILED.] The note and mortgage were worthless and the borrower in that case should file a quiet title action to invalidate the mortgage because it is now unenforceable by reason of the unenforceability of the promissory note that is the basis of the mortgage.
Sadly, I know the attorney and I pray that no harm comes to him and that he returns to his family and deals with the problems around him.
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© 2013 Richard P Zaretsky, Esq.
Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.
Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.
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