Probate and Foreclosure: A Forced Unhappy Marriage

PROBATE AND FORECLOSURE: A FORCED UNHAPPY MARRIAGE

The 4th DCA's latest ruling sends shockwaves through the foreclosure industry.

In the recent Broward County case Ronald DesBrunes v. US Bank National Association, an unexpected ruling from the Fourth District Court of Appeal has led to a new and arguably, undesirable "relationship" between two distinct legal practice areas: Probate and Foreclosure.

In DesBrunes, a relative and heir of a deceased mortgagor challenged a final order of foreclosure which had been initiated by the Bank. Before securing a court ordered foreclosure, the Bank named decedent's heirs in the action, and, had the Court appoint both an Administrator and a Guardian ad Litem to protect the interests of any heirs not identified and named. The appellate court ruled that these steps, which are the same steps routinely that have been taken by Associations throughout Florida for decades, were insufficient to protect the rights of the decedent's estate! Instead, the appellate court ruled that to secure the foreclosure, the rights of the decedent's estate had to be protected by appointment of a legal representative through a separate Probate Court proceeding who would then have to be a named as a party defendant to the foreclosure action.

However, if there is no probate proceeding currently pending, this ruling suggests that in order to recover its losses, the creditor (which in that particular case was a Bank, but in many of our cases might be an Association) must itself take steps to file probate on behalf of the decedent or, risk a reversal of any foreclosure order that it secures against a defaulting decedent.

The ruling leads to many questions, many of which may not be answered for some time as the issues are litigated in future cases dealing with the subject. For example, who will be paying to file the probate case? Who will absorb the costs involved in locating the decedent's heirs, an undertaking which the Probate Court will certainly require. Who will pay the cost of administering the estate while the matter is pending. Should these expenditures fall upon the unfortunate creditor? What if the Association does not have the resources for this type of expenditure?

These questions pose challenges for Associations, particularly in those communities which house a large elderly population and a statistically significant probability that some will pass without an estate plan. Homeowners should be strongly encouraged to set up estate plans to avoid this situation. Associations must be prepared to meet these challenges before embarking on a foreclosure lawsuit.
We strongly suggest consulting with competent Estates and Trusts as well as Association counsel if foreclosure is considered under such circumstances.

Alisa Lebensohn joined Sachs, Sax, Caplan in January 2024 with 30 years of legal experience in multiple areas of civil law including estates, family law, medical malpractice and small business administration. Originally from New York, for over two decades Ms. Lebensohn practiced law in both the public and private sectors throughout the five boroughs, representing the City of New York, the State of New York, several prominent insurance companies and individual litigants.

Learn more about Alisa including how to work with her here.