DEFICIENCY JUDGMENT FROM A SHORT SALE IN FLORIDA - IT IS 5 YEARS NOT 1

By
Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY
https://activerain.com/droplet/56vc

Last year I wrote about a confusing law that went into effect in Florida saying that a deficiency judgment could not be sought by the lender if more than one year had elapsed from a foreclosure sale or deed in lieu of foreclosure.  A sister statute also discussed how a short sale was analogous to a deed in lieu or foreclosure sale.  The problem was the statute saying the time limit to seek a deficiency was one year stated it applied to foreclosure judgments and deed in lieu arrangements but it did not include short sales - but it also did not exclude them either.

The blog can be found at SHORT SALE DEFICIENCY BARRED AFTER ONE YEAR IN FLORIDA.

Well apparently some trial judges also used the logic in the article to reach the conclusion that a short sale was meant to be included in the legislation and they dismissed the suits for the deficiency judgment because they were brought after one year.

Now an appellate court has joined another appellate court (that is 2 of 5 in Florida) that decided 3 months ago that if the legislature wanted to include short sales, they would have specifically stated just that and not just implied it.

The decision can be found at this link.

The court essentially summed it up by saying:

Our review of section 95.11(5)(h) leads us to an interpretation contrary to the that reached by the trial court. The unambiguous language of section 95.11(5)(h) states that a cause of action accrues under its terms on “the day after the certificate [of foreclosure] is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.” Under the circumstances of the present case, where a short sale was held in lieu of foreclosure, neither of these two predicates occurred: there was no certificate of foreclosure issued by the clerk and there was no deed in lieu of foreclosure. Only by looking beyond the plain language of section 95.11(5)(h) may one arrive at the interpretation advanced by the trial court and the Grants.

The appellate court felt that the legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute.  Therefore there was no necessity to read the two statutes together.

close

This entry hasn't been re-blogged:

Re-Blogged By Re-Blogged At
Topic:
ActiveRain Community
Location:
Florida
Groups:
All Things Florida
Century 21 Network
Florida Realtor® Network
PALM BEACH COUNTY SHORT SALES
Short Sale and Loan Modification Nightmares
Tags:
deficiency judgment
deed in lieu attonrey
florida real estate lawyer
short sale deficiency
palm beach real estate attorney
statute of limitations defense
foreclosure judgment

Post a Comment
Spam prevention
Spam prevention
Show All Comments
Ambassador
1,631,443
Joe Pryor
The Virtual Real Estate Team - Oklahoma City, OK
REALTOR® - Oklahoma Investment Properties

I would hope that the legislation is clarified. People seeking a short sale are being proactive and it also keeps the property occupied and groomed while it is in process. We still need to give these people a break.

Aug 15, 2017 07:57 AM #1
Rainmaker
1,827,177
Michael J. Perry
KW Elite - Lancaster, PA
Lancaster, PA Relo Specialist

We will probably get this slew of challenged property transferred just in time for the next down turn ?

Jan 20, 2018 06:41 AM #2
Post a Comment
Spam prevention
Show All Comments

What's the reason you're reporting this blog entry?

Are you sure you want to report this blog entry as spam?

Rainmaker
281,232

Richard Zaretsky

Florida Real Estate Attorney
Ask me a question
*
*
*
*
Spam prevention

Additional Information