If a Borrower has not made any payments for more than 4 years and the Lender hasn't attempted collection or initiated a foreclosure action in that same 4+ period year (well aware of the default). Can eStopple be used as an Affirmative Defense (if the Lender does file a lawsuit) that the Borrower believed that the Lender had written off (or otherwise) the debt?
Under the circumstances you describe, it is doubtful that estoppel alone would be a meaningful defense. However, it is likely that there are / will be other potential defenses. Please make sure to contact a knowledgeable foreclosure defense litigator to discuss and review all the potential issues.
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
2 lawyers agree
Real Estate Attorney
Under your facts as recited, the answer is no.
The lien of the mortgage remains even if the loan is "written off". The only way to remove the lien of the mortgage is to have it satisfied by the lender or for a court to dissolve the lien.
Further, even a "written off" mortgage has a remaining promissory note that remains collectable. "Written off" usually means the lender has determined on its own books and records that the loan is currently uncollectable. That does not mean it no longer exists.
You should seek counsel for particular information about your situation.
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1 lawyer agrees
I agree with Attorney Zaretsky.
The statute of limitations in Florida is 5 years, not four.
Every payment begins a new statute of limitations on the payment that follows. In other words the statute of limitations on a 30 year mortgage begins to run five years after the last payment would be due -- UNLESS ---> And this is important:
UNLESS the lender accelerated the mortgage note and demanded immediate payment of all sums due, and THEN waited five or more years after accelerating the note.
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Insurance Law Lawyer
Florida law contains a five year statute of limitations period for a breach of contract action. Also, the breach, a missed payment along with the required notice of intent foreclose and acceleration clause will not trigger the statute of limitations unless the lender has put you on notice of an intent to foreclose the property. So the simple answer is no. There are equitable defenses to a foreclosure that derive from conduct of a lender that causes a reasonable person to believe that certain action is unneeded. The problem with these defenses is that they are usually a long shot. The good news is that there may be many other available defenses out there. Speak with a foreclosure defense attorney and fight your foreclosure.