Wow…I just cannot even take it anymore.
Just listen to the bank attorney exclaim over and over…
THERE IS NO TIME-BARRED DEBT
THERE IS NO TIME-BARRED DEBT
And worse…so much worse…is that even if a consumer is a prevailing party…they can spend hundreds of thousands of dollars to defend a case…then they cannot recover their attorney’s fees. The banks however…can lose…and still collect their attorney’s fees. Wowza….but that’s the law now in Florida.
Time-Barred Debt: Florida Law Gets Uglier For Consumers
The radical change that has now taken place in Florida is that debt collectors can just continue to hammer away at consumer debt…for years and years and years. For decades…perhaps hundreds of years in American jurisprudence…we recognized that there were real jurisprudential and practical benefits to making debt no longer collectible. It helped people to get back on their feet. It helped to keep the economy chugging along. It helped to force banks, institutions, debt collectors to keep their books clean, up to date and accurate.
But no longer. Just watch the Oral Argument here
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Although there was limited evidence presented at trial, it was clear that the Appellant included attorney’s fees and litigation expenses of $10,305.59, apparently incurred by the Appellant or its predecessor related to the 2010 foreclosure that was dismissed. Paragraph nineteen of the mortgage provides that in order for Appellee to reinstate the mortgage, she would be required to pay the lender all sums then due and all expenses incurred in enforcing the mortgage, including reasonable attorney’s fees and specified foreclosure litigation expenses. According to the plain language of the mortgage, the Appellant was not required to be the prevailing party in the first foreclosure action in order to seek and recover its attorney’s fees and expenses. See Maw v. Abinales, 463 So. 2d 1245, 1247 (Fla. 2d DCA 1985) (holding that even if borrower had been successful in preventing foreclosure by lender due to default by borrower, lender was still entitled by mortgage to seek and recover its reasonable attorney’s fees because a default had occurred). Because the Appellant was entitled to seek and recover the $10,305.59 representing its attorney’s fees and litigation expenses from the first foreclosure action, we find that the trial court erred in ruling Appellant’s demand/default letter was non-compliant with paragraph twenty-two of the mortgage.
