Dan Edstrom Adds His Thoughts to the 3rd DCA Opinion on the Statute of Limitations

Dan is our senior forensic analyst. His comments were right on point. It also exposes a point of vulnerability for lawyers who defend foreclosures. If the original party had no right to collect or enforce, then the notice of default and notice of acceleration are void. But then you have the issue of “apparent authority” and whether that is relevant to this chaos. Here is his message to me in its entirety:

Very interesting.  But notice the elephant in the room – that nobody is stating that the loans were actually never accelerated in the first place (by a party with a monetary interest in the loan).  How is the Judicial statute being invoked?  And/or how is the contract being invoked for acceleration?  I am not sure what the acceleration is in a judicial state like Florida, but it seems to be the action itself.  If the Plaintiff has no standing and/or is not the creditor nor their agent, the debt was never accelerated in the first place.

If I sue you in a judicial foreclosure action because I know you are late on your payments, do we have privity of contract and has your debt really been accelerated? Yes there apparently is a debt, but under what circumstances is the Plaintiff entitled to enforce the obligation and hold an interest that would allow them to accelerate the mortgage?

This is the angle of attack lawyers we are working with are using in non-judicial estates.  Not exactly the same but seems to be similar.  Non-judicial states seem to accelerate the debt with notice and reference to the never to be seen “written declaration of default and demand for sale”.  I don’t know, but I would think the Judicial Foreclosure should require the same, but I don’t really know the mechanics of how it is done in a judicial state.

It seems to me that if you are stating ” If you can prove that there was no loan at the base of the documentary chain”, that it is a natural extension to make the claim that the Plaintiff (nor their predecessors in interest) never accelerated the “debt”.

Thx,

Daniel Edstrom

DTC-Systems

dmedstrom@hotmail.com
www.dtc-systems.net

Office: 916.207.6706

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