The issuance by the Floirda Third District Court of Appeals in Miami of the recent decision in Deutsche Bank Trust Company Americas, etc. v. Harry Beauvais, et al., Case No. 3D14-575, may be an appropriate time to review what actions a Miami homeowner that seeks to save their home from foreclosure. If upheld, the Court's decision may indicate that some notions of "foreclosure defense" may need to be reviewed. A homeowner seeking to save their home from foreclosure may be better served on directing his or her efforts towards the modification of their mortgage instead of "winning" a foreclosure case. For example, it appears that in many or most cases, arguments regarding statute of limitations issues may not result in a "quiet title" judgment.
Present Modification Opportunities
If a homeowner seeks to save their home from foreclosure, focusing primarily on "foreclosure defense" is not likely to be the solution. The federal government, the mortgage lenders, and the general economic climate, present good opportunities to modify your mortgage that may not exist in years to come. For many, the after-tax benefit cost of paying a modified mortgage payment may not be significantly more than paying for a "foreclosure defense"
Chapter 13 Bankruptcy
A person may pursue a mortgage modification on their own or with the assistance of an attorney. In some cases, it may be appropriate to file for the mortgage modification as part of the Bankruptcy Court' Mortgage Modification Mediation ("MMM") program. If the second mortgage is wholly "underwater," the homeowner would often be able "lien strip" or avoid it as part of his chapter 13 plan.
A homeowner may be making a error in not taking the opportunity to modify their mortgage based on present real estate values and interest rates. Real estate prices and interest rates may be rise, causing the new modification payment to be higher the longer a person waits to pursue a modification.
Also, if a person who has a first and second mortgage, it would be better to address their situation before there is a rise is in real estate prices. If the second mortgage is wholly "underwater", it may be avoidable in a bankruptcy case. If real estate prices go up enough that the second mortgage is not wholly "underwater," the second mortgage could not be avoided at all.
"Winning" Foreclosure
There may not exist much of a thing as "winning" a foreclosure case. For many, simply getting a foreclosure case dismissed, "with" or "without" prejudice may not be much of a "win". In most instances, a new foreclosure action may be filed on a new default almost immediately.
For example, "winning" a foreclosure case by getting the case dismissed may not be much of a "win" - it may only mean that the lender can simply file another case.
Statute of Limitations
Even if the statute of limitations has run to bring a foreclosure action on the mortgage note, generally the mortgage note remains valid and the mortgage and its liens remains valid. The continued validity of the mortgage and its lien is governed by the time period set forth in the statute of repose - which is different than the statute of limitations.
