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Counsel’s Corner: Tracking System Makes it Easier to Beat the Statute of Limitations

Andrea Tromberg

Andrea Tromberg

Andrea Tromberg is a Managing Partner with Gladstone Law Group in Boca Raton, Florida. Tromberg has been practicing law since 1996.  In 2010, she joined Gladstone Law Group and brought to the firm her vast experience in complex litigation, as well as her effective abilities in the courtroom, appellate work, trial experience, and management skills making her a valuable asset to the firm.  Andrea recently spoke with DS News about a tracking system her firm uses to ensure that foreclosure cases are completed before the expiration of the five-year statute of limitations.

What is the purpose of the tracking system?

For any law firm that deals with cases that are limited by a statute of limitations, it’s always critical to have something in your case management system that first checks to see if you can file a claim or if it would be in violation of the statute of limitations. Let’s say you were doing personal injury case at a typical law firm. It might be from when the injury occurred, which is relatively easy to define, or it might be from when the injury was discovered, which is also relatively easy to define. However, in foreclosures, we’ve been finding it difficult for a few reasons. For one thing, case law in many jurisdictions conflict dealing with the date of default, dealing with what happens if the case is dismissed, dealing with when a complaint is filed and the loan is accelerated. As an attorney, when you receive a referral, the look is very different and more complicated than it would typically be in a normal case. Given those difficulties, we found it necessary to start tracking different variables or occurrences in order to make sure that we are not in violation of the statute of limitations.

What our firm did was take the approach of “Let’s track everything we can so that we can analyze those cases depending on what jurisdiction they are in, and also to deal with changes in the law.” We’re tracking defaults and complaints filed, prior complaints filed, acceleration events, and deceleration events, as well as nature of dismissals. An anomaly that we’re dealing with is so many cases that were filed and dismissed by prior firms, and often times we can’t tell that occurred. For example, if you’re in Miami, and you have a Jose Gonzalez defendant, it is very difficult to figure out whether that property was ever foreclosed on. The plaintiff name could be different because of all the service transfers and note could have been sold, and there may be issues with the legal description. We make every effort to see if there was prior case, and if it was dismissed, why was it dismissed? Was it dismissed with prejudice, without prejudice, or because there was a fatal error in something within that foreclosure that needs to be corrected on the second case?

Within our case management, we have a list of all these possible events. To add to that list, we include information such whether another demand letter was sent out with a new default date, was the loan decelerated, or did the client send out a letter restarting things? The evaluation of the statute of limitations has become much more complicated, given all of these variables.

Can you give us an example of the effectiveness of the tracking system?

One of the reasons it has been incredibly effective is because we implemented it so long ago. Also, we’re taking a very broad approach instead of saying we’re only going by complaint files or by default date. We track numerous events so now I don’t have to reinvent it. I don’t have to go back to all of those cases and re-review them. As banks are settling in also trying to figure out how to comply, regardless of whether they tell us, “Okay, we are now decelerating all loans that have been filed before.” We’re able to go into our system and easily determine what the prior breach date was, what the new breach date is, whether the loan was accelerated, and whether there was only a default letter that had gone out previously. We’re able to report much more accurately.

How long ago was the tracking system implemented?

We always looked at the statute of limitations, so it was always in effect. We started upgrading it closer to 2011. Those cases really hadn’t even hit five years from the bubble, we didn’t even really see statute of limitation issues until 2011 and 2012 when some of those larger firms had gone under. A lot of those cases were dismissed. And then there was this incredible undertaking of transferring those files, and banks had to figure out where some of these files were going. That caused a lapse in time in addition to loss mitigation and other things that were going on that delayed the banks from pursuing the foreclosure. The result of that perfect storm of delay, when everybody said, “Okay, let’s start foreclosing again,” is that the issues of statute of limitations started arising. Let’s say you had someone that defaulted in 2006 and their case gets dismissed in 2010, then it goes through all these different processes, it gets reset for referral. Then the firm looks at it and says, “Wait a minute. . .this has been more than five years.” And that’s where this issue came from.

We generally resolve cases before the court has to do so because of the statute of limitations. We conduct an analysis with the client to determine how strong our argument is that the foreclosure was timely filed and what options the borrower is ultimately looking for from this case and the risks. Generally, we’ve been able to either work out those files or make a strategic business decision with our clients that they would prefer to just dismiss, and using the case law at the time, come up with a way to move the breach date forward so that we’re filing within a five-year period. There’s been a lot of attention to making sure that everybody is in compliance. Our firm has been instrumental with educating our clients with the law in Florida and how it’s been changing. We use our system to early detect any issues, especially when we take a file from another firm that may be closed or that our bank is no longer using. We immediately scrub that for a statute of limitations evaluation so that our client can make a good decision on how to proceed.

About Author: Brian Honea

Brian Honea's writing and editing career spans nearly two decades across many forms of media. He served as sports editor for two suburban newspaper chains in the DFW area and has freelanced for such publications as the Yahoo! Contributor Network, Dallas Home Improvement magazine, and the Dallas Morning News. He has written four non-fiction sports books, the latest of which, The Life of Coach Chuck Curtis, was published by the TCU Press in December 2014. A lifelong Texan, Brian received his master's degree from Amberton University in Garland.
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