No Probate, No Problem – Fourth DCA Reverses Prior Decision in Desbrunes

Today, the Fourth DCA issued a renewed opinion in Desbrunes v. U.S. Bank, N.A., as Trustee, holding that a Personal Representative is not a necessary party to a foreclosure on homestead property.  The Court’s shift is significant, as it no longer will require a Lender to initiate a probate proceeding in order to obtain clear title when foreclosing.  The original ruling put an unnecessary burden on Lenders which would have caused significant delay in expense to the foreclosure process.

The Court held that since “[p]ersonal representatives have no jurisdiction over nor title to homestead  …” the property would not be an asset to the estate and subject to administration.  The Court noted in a footnote that it was unaware of the status of the property when it issued the initial decision, but after review of the Rehearing, and Amicus Briefing, the issue can be fully addressed and corrected.  The Court did not make a distinction regarding foreclosure proceedings being in rem or how the rules would apply to non-homestead property which leaves a potential grey area in the law.  However, the briefings do go into depth on how probate law would address non-homestead property.

The Firm was very grateful to the USFN, ALFN and Legal League for allowing its Partner, Adam Diaz, to take lead on the drafting of the Amicus Brief on this complex matter, as the initial decision that would have a large impact on the Mortgage Foreclosure Industry. For industry professionals interested in learning more, feel free to contact Adam Diaz at adiaz@dallegal.com.