March 2021, Letters
In a case decided in 2017, Florida’s Fifth District Court of Appeal showed the way to protect borrowers from foreclosure in the coronavirus pandemic.
In that case, DeLong v. Lakeview Loan Servicing, LLC, 222 So. 3d 662 (Fla. 5th DCA 2017), a borrower, one Robert DeLong, executed a promissory note and mortgage. The note and mortgage recited that Mr. DeLong’s loan was “guaranteed and insured” by the U.S. Department of Veterans Affairs, “the VA.”
The documents “specifically incorporate into their terms certain federal regulations issued” under federal law. In particular, they apparently incorporated regulations governing “service procedures for holders.” DeLong, 222 So. 3d at 662-63.
By the time it foreclosed, Lakeview was the holder and it was bound by the regulations incorporated by reference in the note and mortgage.
In a similar way, if federal agencies that “guarantee and insure” home loans are authorized to issue regulations that govern “service procedures for holders” tailored now to mortgage servicing during the coronavirus pandemic, foreclosures can be prohibited, delayed, conditioned, or regulated just as they were at the time of the DeLong decision in 2017.
Let them that have ears in the federal government, let them hear.
Lakeview lost the appeal because it did not comply with the federal servicing regulations when it tried to foreclose on Robert DeLong.
Parenthetically, I have practiced before the Fifth DCA. Appellate practitioners used to joke that the court would issue a per curiam reversal rather than a “PCA” or per curiam affirmed unsigned opinion. The DeLong decision was exactly that, a “PCR,” or unsigned opinion reversing the trial court. The result was so clear that all of the judges concurred and no one judge needed to sign their opinion.