Mortgage Foreclosure Options: A Cost Benefit Analysis

A Florida homeowner with a mortgage foreclosure situation may be well advised to do a  "Cost- Benefit Analysis" based on present facts and circumstances. A "cost-benefit analysis" is often done by business to appraise the benefits and costs of alternative choices. A "cost-benefit analysis" for a homeowner in foreclosure would generally systematically identify

1. factual situation
2. alternatives 
3. goals
4. predict outcome and benefits over time
5. determine costs of each alternative

Factual Situation

A homeowner should consider many items, including the following: present market value of his home, are prices expected to raise, the condition of the home, costs of needed repairs, desire to continue to live in neighborhood.

As to the mortgage, one should identify who are the "makers" of the mortgage note, is there a "non-resident co-maker", is there a "resident non co-maker".

Income facts 

Legal Status

A homeowner

Opportunities

Issues of Estoppel?
The Court also made reference that the "factual allegations" of the lender "carried independent legal significance."  This raises questions of the legal significance of the "factual allegations" of the homeowner in the "foreclosure defense" efforts. 

That is, some foreclosure defenses are allegations that the plaintiff was not the holder of the note and have standing to bring the first foreclosure action, it may. If the involuntary dismissal without prejudice was based on such a finding by the court, this may raise some type of equitable estoppel for the homeowner to take the inconsistent position in the second foreclosure action that there actually had been an acceleration in the first action - without a prior acceleration, there was accrual of a cause of action and the statute of limitations never began to run. 


previously was no cause of action  

e implication may be that there had not been a valid acceleration and the statute of limitations did not begin to run.  A homeowner may have to take the inconsistent position in the second foreclosure action that on the contrary there had been a valid acceleration as otherwise there would not be a statute of limitations defense.  Perhaps there is an issue of some type of equitable estoppel presented that would bar the homeowner's inconsistent position in the second foreclosure action. 

That is, although under such a scenario, the involuntary dismissal without prejudice does not "in and of itself" decelerate, there would be an equitable estoppel of an inconsistent position of the homeowner in the second foreclosure action.  In short, perhaps there is no need for a deceleration, as the homeowner would be estopped from alleging that there had been a prior acceleration. 



such if based on ineffective acceleration might. Or

there could be some type of estoppel of the homeowner from raising the defense of the statute of limitations in the second action as he successfully prevailed on his factual allegation that the plaintiff was not the holder of the note, raising questions whether the foreclosure complaint accelerated the note, although there could have been an acceleration in a different manner. 






, which may include 



hadOtherwise references by the Court may also defeat the defense of the statute of limitations by the homeowner in a second foreclosure action. In footnote four,  the Court stated that the lender's allegations in the first foreclosure complaint of acceleration were not simply "mere factual allegations", but "carried independent legal significance".  This, or a similar notion,  may also apply to the allegations made by the homeowner in his "foreclosure defense" in the first foreclosure action, i.e. that  they too may not not be "mere factual allegations" but also carry "independent legal significance" or be otherwise of import.

If the factual allegations of the homeowner in the first foreclosure actions are also of "legal significance," they may support estoppel or otherwise defeat efforts by the homeowner in the second foreclosure action to raise a statute of limitations defense. That is, the homeowner may have alleged facts that there had not been a valid or effective default and acceleration of the mortgage note prior to the first foreclosure action.  If there had not been a valid or effective default and acceleration in the first foreclosure action, the statute of limitations would not have even begun to run in the first instance and could not have run before the second foreclosure action.

It is noted that the doctrine of "judicial estoppel" generally prohibits, a litigant from taking inconsistent positions in different courts.

Foreclosure Cause of Action on Other Mortgage Covenants
One should note that Florida case law and commentators review that there are many covenants by the homeowner in the mortgage itself - aside from the covenant to pay the mortgage note installment payments.  Examples of such covenants are to protect the collateral by keeping it insured or paying the property taxes. With the mortgage and its lien continuing to be valid - even if a foreclosure action on the "old" mortgage note cause of action is barred - for a very extended period of time pursuant to its statute of repose, there would in a typical case, be breaches of these separate mortgage covenants giving rise to "new" foreclosure causes of action upon which a "new" foreclosure action may be filed with "new" statute of limitations.