April 20, 2016
This morning, an Orange County (Orlando) Florida Circuit Judge denied a Motion for Summary Judgment filed by US Bank as the claimed securitization trustee. Jeff Barnes, Esq. represents the homeowners. Mr. Barnes prepared the 20-page Response and Opposition to the MSJ and argued the matter in court today.
The case is a “do-over”. The initial foreclosure case, which was filed by the Law Offices of David J. Stern, was dismissed due to the plaintiff’s failure to appear for a dispositive motion hearing. The refiled case involves issues relating to standing, the lack of compliance with Florida’s law as to allonges, inconsistent positions taken in the documents, and setoff issues as well.
There is also a potential statute of limitations issue depending on the ultimate ruling of the Supreme Court of Florida in the Beauvais case, which pits the decision of the Third District Court of Appeal against that of the Fourth DCA: the 3d held that the statute of limitations begins to run as of the date that the foreclosing party accelerates the loan balance due to a claimed default, while the 4th DCA took the position that the statute of limitations begins to run as of the date that the last payment was due on the loan and not when the balance was accelerated.
As Orlando is within the 5th DCA, neither the 3d nor the 4th DCA positions are binding on the Orlando Circuit Court, and in any event, the matter remains in the Supreme Court of Florida on “conflict certification” meaning that the Supreme Court will issue an opinion, at some point, as to what the triggering event is for statute of limitations purposes..
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com