The Law Office of Antonia L. Johnson, LLC

Providing Foreclosure and Bankruptcy Representation

The Law Office of Antonia L. Johnson, LLC is a Columbus law firm representing clients in both Ohio and Florida matters, including foreclosure, bankruptcy and litigation.

The Law Office of Antonia L. Johnson, LLC  offers Ohio bankruptcy representation and Florida and Ohio foreclosure services.  Attorney Antonia Johnson is committed to high business and ethical standards and provides high-quality and cost-effective legal services to individuals and businesses. 


Deceleration: Restarting the Expired Statute of Limitations in Mortgage Foreclosures

The 2007 debt crisis spawned a wave of mortgage foreclosure filings that overwhelmed the Florida state court system. As Florida courts struggled to process the swelling foreclosure actions, so too did lenders and their foreclosure firms, leading to mass misfilings, the David J. Stern and Ben Ezra Katz law firm implosions, rocket dockets and mobbed for-want-of-prosecution calendars, and the robo-signing pandemic. In reaction, many lenders voluntarily dismissed up to thousands of foreclosure actions, thinking it better to collect their original loan documents and refile another day. Likewise, the courts involuntarily dismissed innumerable foreclosure actions to clear their overcrowded dockets. The statute of limitations on mortgage foreclosure is five years, and seven years have passed without refilings of these dismissed foreclosure actions.1 Are many of these mortgage foreclosures now time-barred? 

Institutional lenders across the country are confronting this time-bar question. Lenders are asserting that the panacea is deceleration. Deceleration is the act of undoing a mortgage note’s acceleration and the accrual of the limitations period to return the lending arrangement to status quo ante — an installment agreement maturing in the distant future. Florida appellate courts have yet to flesh out mortgage deceleration.2 In anticipation of a surge in deceleration litigation in Florida, this article explains the concept of deceleration and its capacity to extend the foreclosure flood for years to come.

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Is time on homeowner's side?

Lawyers for homeowners in several states are arguing banks can’t foreclose on their clients’ homes because the statute of limitations has expired.

An issue in the cases is when the clock begins to run and whether a tossed foreclosure case pauses the clock, the New York Times reports.

Lawyers for homeowners say the clock begins to run with a default that causes the bank to claim the mortgage is accelerated and the entire debt is due. These lawyers say the clock that began with acceleration continues to run if a foreclosure case is filed and then dismissed, even if the dismissal is without prejudice. (Banks may still keep a lien on the home, however, that would have to be paid after the house is sold, the story points out.)

Lawyers for the banks, on the other hand, say the clock resets with each missed payment.

In Florida, where the statute of limitations is five years in foreclosure cases, the issue is set to be considered by the state supreme court. The case is Bartram v. U.S. Bank, according to the Daily Business Review (sub. req.) and the National Law Review. Cases based on the issue are also being litigated in New Jersey and New York.




Negotiability of promissory notes

The negotiability of promissory notes in mortgage foreclosure cases is the subject of extensive litigation in Florida courts. The central issue is what instructions or undertakings on a note destroy its negotiability. Arguing against the negotiability of the note has of late become an important defense against foreclosure. If the note is not negotiable, and the plaintiff is not the original maker of the note, the plaintiff cannot establish standing merely by possession of the original note endorsed in blank. The plaintiff must instead show it has the right to foreclose on the note through a series of assignments running in an unbroken line from the originator of the note to the plaintiff. This can be a cumbersome task when the foreclosure occurs years after the note was created and the note has passed through several hands. In some cases, this may be impossible for the plaintiff to accomplish due to gaps in record-keeping.

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Foreclosures in Florida Dip

When legislators passed a bill to speed up the handling of foreclosures in Florida’s courts, it was part of a larger effort to reduce the number of foreclosures pending and backlogged on dockets throughout the state.

The law may be succeeding, but in an unexpected way. 

Since the law went into effect July 1, the number of foreclosures filed in the state has plummeted. And the backlog of cases, helped by the reduced filings, is also coming down.

Some observers attribute the filing decline to the tougher paperwork standards plaintiffs face under the new law, and it may only be a temporary dip as mortgage servicers and plaintiff attorneys adjust to the law. But others say it exposes a systemic problem of lax paperwork from the housing boom when mortgages were rapidly packaged into securities.

“The biggie is obviously that the new statute requires all kinds of additional information and materials that the plaintiffs don’t have, the foreclosure law firms don’t have,” said Boca Raton attorney Margery Golant, who defends foreclosures. “It’s sort of a testament to how defective the things were before.”

Tampa foreclosure plaintiff attorney Richard McIver agreed the new law has caused a pause, but he expects it to be temporary.

“We expect them [banks and mortgage servicers] to come back in the next few months to a higher level [of paperwork],” he said. “It’s hard to say what that level will be. We don’t have knowledge of what the pending referral volumes of the banks are at the moment, but we do think as the large institutional lenders adjust to the new law, the filings will increase.”

For the first six months of 2013, Florida foreclosures averaged more than 14,000 a month. In June, that dropped to 4,386, less than a third of what it had been. Statewide numbers were not available for September, but a spot check of some counties showed that while the number of foreclosures rose somewhat, it was still below the average for the first part of the year.

In Miami-Dade, foreclosures had been averaging more than 2,000 a month. That dropped to 450 in July and rebounded somewhat to 795 in August. In Orange County, filings were averaging about 900 a month and dropped to 344 for July and then 500 for August. Duval County went from around 650 to 700 foreclosures a month to 257 in July and 388 in August. Palm Beach County went from around 1,000 a month to 344 in July and 578 in August.

(Part of the increase in August may be a routine occurrence, as foreclosures for 2010, 2011, and 2012, showed a slight increase from July to August for each year.)

The Florida Bar News, October 1, 2013 By Gary Blankenship


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