I have written about all the scam ways in which people including attorneys, file quiet title actions. So it is only right to show a simple example of how a legitimate quiet title action works in Florida to eliminate the lien of a mortgage and obtain the title to the property debt free.
In the scams that I have written about in the past, the best result was not an elimination of the debt, but merely a supposed elimination of the mortgage lien on the property. Even those promoting the scandalous scheme admitted that the debt (the promissory note) was still an obligation of the borrower to whoever held the promissory note, but they say without the collateral to back up the promissory note, borrowers maybe can negotiate favorable terms of modifying those promissory notes. Too many "if's" for me! See these articles for examples: QUIET TITLE USED TO ELIMINATE MORTGAGES - EXAMINED; QUIET TITLE MORTGAGE FORECLOSURE DEFENSE MERITLESS ; QUIET TITLE SCHEME GONE WRONG MAKES ATTORNEY GO MISSING.
In legitimate quiet title actions the basis is not that the lender did not respond to the quiet title lawsuit in a timely manner and therefore is prohibited from defending the quiet title action, it is that the basis for the mortgage is no longer an enforceable debt. The key is that the judge can actually consider real evidence and make a conclusion of law based on the facts. Remember, a promissory note is the primary obligation upon which the mortgage is acting as the collateral. You can have a promissory note without a mortgage, but you cannot have a mortgage without a promissory note.
This was succinctly articulated by a judge in Vermont as well as other states on a mortgage foreclosure case where he said, “The cow can survive without the tail, but the tail can’t survive without the cow”. See my article CAN A BANK SUE TWICE ON THE PROMISSORY NOTE AND MORTGAGE? Find the case at COLEMAN VS. BAC SERVICING. You will need to go all the way to page 17 of that quote. I just love the quote and it has been used with various language changes in several courts. I used it here in Palm Beach County and won. The judge scratched his head somewhat puzzled and then said, “I get it! Lender loses!” Lender counsel still didn’t get it, nor did those in the visitor’s gallery.
So it came as no surprise when the following case occurred in the Miami area recently. In 2005 the borrower purchased a condominium for over $1.5 million and got a mortgage of about $750,000. After a few years the mortgage was unpaid and in 2007 the lender filed foreclosure. In the meantime the condominium association was not paid and filed for foreclosure and beat the lender to a foreclosure sale, obtaining possession at the foreclosure sale because no one bid higher than the amount due to the condominium association (which ownership was still subject to the first mortgage). The condominium association rented out the unit expecting the lender to eventually foreclose. The lender took its time until eventually the case apparently fell through the cracks of the lender monitoring the case and the attorney responsible for the case, resulting in the case being dismissed for lack of prosecution in February 2011.
The bank re-filed its foreclosure action in late 2012 – more than 5 years and 10 days from the time it originally sent a notice of default of the note and mortgage to the borrower. The condominium association then replied to the new lawsuit stating that the promissory note was no longer legally enforceable in a court of law since the time between the first default notice and the case being filed was greater than 5 years. Florida Statutes say that a debt instrument like the promissory note must be enforced within 5 years of the declaration of default or it cannot be enforced at all. (Note that there are situations where the time period is “stayed”, such as being unavailable to be servee with a lawsuit, avoiding service, and bankruptcy – these examples could extend the 5 year time period).
The court declared the promissory note unenforceable and therefore since the tail (the mortgage) cannot exist without the cow (the promissory note), the court also found the mortgage itself was no longer a lien on the condominium.
The condominium association, now the proud owner of a debt free $1,000,000 condominium is, needless to say very very happy.
These cases are becoming more and more common. This year alone, without even looking to find such situations, 4 of them have come across my desk in the past 5 months. If you have or know someone that has this type of situation, they should be advised to seek competent real estate counsel immediately.
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© 2013 Richard P Zaretsky, Esq. and A. Max 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 Distressed Property and Consult with Brokers and Sellers and Owners Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.
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