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Amicus Curiae Brief - Desbrunes v. U.S. Bank

Tumult in Florida Foreclosures Involving Deceased Owners – Desbrunes v. U.S. Bank
The recent Florida appellate opinion in Desbrunes v. U.S. Bank has caused an enormous tumult in Florida and could have retroactive title implications if it stands.  U.S. Bank has moved for rehearing and ALFN, along with USFN and Legal League, has filed an Amicus Curiae brief in support of U.S. Bank.
 
The current Desbrunes opinion holds that in cases where an owner dies during the pendency of the case (a “Desbrunes case”) the following rules apply:
  1. the case MUST be abated, or stayed;
  2. the plaintiff MUST substitute the personal representative (“PR”) of the decedent's estate into the case; and
  3. if there is no PR because no one (neither heirs or creditors of the estate) has filed a probate action, the plaintiff MUST file a probate case in order to get a PR appointed and substituted into the foreclosure case.
 
It should be noted that this is a conservative reading of the opinion.  Some Florida firms are taking a more nuanced approach.
 
If the plaintiff in a Desbrunes case fails to substitute the PR in place of the deceased owner, the opinion says that all subsequent proceedings in the case, including a foreclosure judgment, are “a nullity.”  Calling the judgment a “nullity” opens the door to title challenges on all past REO sales in cases where an owner died during the pendency of a case.
 
The joint ALFN, USFN and Legal League Amicus Brief asks Florida's Fourth District Court of Appeals to recognize that an in rem foreclosure action is so fundamentally different from the cases the Court relied on (personal injury money judgment cases), that the usual requirement of substituting a PR does not apply and would not make sense in foreclosure cases.  The brief also argues that the current opinion will have widespread negative repercussions, including an unnecessary increase in probate filings, uncertainty in foreclosure sales and broader instability in the real estate market.  Finally, the brief requests the court to either withdraw its current opinion and reverse direction, or alternatively to certify three questions related to the issues at play to the Florida Supreme Court.
 
Many thanks to the people who made this important Amicus Brief effort come together on a short timeline.
  • Adam Diaz, Esq., Diaz Anselmo & Associates, PA (ALFN Member and Lead USFN Attorney Drafter)
  • David Rosenberg, Esq., Robertson, Anschutz, Schneid, Crane & Partners, PLLC (ALFN Member & Lead ALFN Attorney Drafter)
  • Tony Van Ness, Van Ness Law Firm, PLC (Lead Legal League Attorney Drafter)
  • David Rodstein, Esq. Miller, George & Suggs, PLLC (ALFN Member & ALFN Amicus Briefs Committee Chair)

For any questions regarding this brief, or to request the ALFN's support as a friend of the court in a case pertinent to the mortgage servicing industry, please contact info@alfn.org.

 

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