By Adam Diaz, Esq.

Diaz, Anselmo & Associates, PA *

USFN Member (FL, IL, IN, KY, OH, WI)

The 4th District Court of Appeals reversed its opinion in Desbrunes v. U.S. Bank, N.A., as Trustee, which held that a Personal Representative is a necessary party to a foreclosure on homestead property.  The new ruling correctly held that when a borrower passes away the property transfers to heirs without the need of a probate proceeding. 

The Court specifically found 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, this issue can be fully addressed.  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 Court’s shift is significant for the Mortgage Industry, as it no longer requires a Lender in Florida 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.

USFN participated in an Amicus Brief in March 2024 in the Desbrunes v. U.S. Bank, N.A., as Trustee petition to the 4th DCA. Kudos to Adam Diaz with Diaz and Associations for their outstanding work on this brief.  

Advocacy Advisory - May 8, 2024
USFNews - May 15, 2024

* Denotes firm as a 2023 USFN Award of Excellence recipient