A Texas federal court has repeatedly quoted Miami attorney Andrew Bernhard in its decision to allow a federally regulated banking trust to amend or alter its judgment. See Callan v. Deutsche Bank Trust Co. Americas, 93 F. Supp. 3d 725, 737 (S.D. Tex. March 21, 2015).

See Andrew J. Bernhard, Deceleration: Restarting the Expired Statute of Limitations in Mortgage Foreclosures, Fla. B.J. 30, 36 (2014) (“If something more than a mere dismissal is required to decelerate, the lenders are in trouble. It is not the regular practice of lenders to deliver independent notices of deceleration, to collect on individual installments or send monthly invoices after voluntary dismissal of an initial foreclosure action, or to send second notices of intent to accelerate. Further, lenders do not regularly allege deceleration or subsequent default in their second foreclosure complaints, as their foreclosure firms simply reuse their standard complaint forms.”)

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At page 737, the Court stated:

“Implicit in these decisions is the notion that a debtor in continuing default is not entitled to limitations on actions, while the lender is entitled to protect his continuing right to foreclose by affirmative acts or express notice. See Andrew J. Bernhard, Deceleration: Restarting the Expired Statute of Limitations in Mortgage Foreclosures, Fla. B.J. 30, 37 (2014) (“It remains to be seen whether Florida courts will … demand evidence of deceleration from lenders. Lenders may change their practices … by affirmatively alleging deceleration and secondary default within the limitations period or sending notice of deceleration.”).”

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At n.11, the Court stated:

See Andrew J. Bernhard, Deceleration: Restarting the Expired Statute of Limitations in Mortgage Foreclosures, Fla. B.J. 30, 36 (2014) (“If something more than a mere dismissal is required to decelerate, the lenders are in trouble. It is not the regular practice of lenders to deliver independent notices of deceleration, to collect on individual installments or send monthly invoices after voluntary dismissal of an initial foreclosure action, or to send second notices of intent to accelerate. Further, lenders do not regularly allege deceleration or subsequent default in their second foreclosure complaints, as their foreclosure firms simply reuse their standard complaint forms.”).

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At n. 12, the Court stated:

Id. at 30 (“As Florida courts struggled to process the swelling foreclosure actions, so too did lenders and their foreclosure firms, leading to mass misfilings, the David J. Stern and Ben Ezra Katz law firm implosions, rocket dockets and mobbed for-want-of-prosecution calendars, and the robo-signing pandemic. In reaction, many lenders voluntarily dismissed up to thousands of foreclosure actions, thinking it better to collect their original loan documents and refile another day. Likewise, the courts involuntarily dismissed innumerable foreclosure actions to clear their overcrowded dockets.”).

If you have any questions on contractual disputes, please contact Miami attorney Andrew Bernhard, Bernhard Law Firm PLLC, 786-871-3349, abernhard@bernhardlawfirm.com.