On February 14, 2024, the Fourth District Court of Appeal of Florida, issued its opinion in Desbrunes v. US Bank Nat’l Ass’n as Tr. for Structured Asset Sec. Corp. Mortg. Pass-Through Certificates, Series 2006-AM1, No. 4D2022-2647, 2024 WL 591432 (Fla. Dist. Ct. App. Feb. 14, 2024), which held that a foreclosing Plaintiff is required to substitute as a Defendant the personal representative for the estate of a deceased Defendant. A timely Motion for Rehearing, along with an amicus curiae brief, was filed seeking to correct this opinion.

On May 8, 2024, the Fourth District Court of Appeal of Florida granted rehearing, withdrew its prior opinion, and issued a new opinion. This opinion holds that because the property at issue was homestead, it passed outside the estate, and the Plaintiff correctly named the heirs of the deceased Defendant. This opinion is consistent with Albertelli Law’s procedure for handling cases where a Defendant passes away during the pendency of the case.

An issue to keep an eye on is how the Court would resolve a similar dispute on non-homestead property. The Court references in its opinion, and in a footnote, that the decision is based entirely on the property’s status as homestead, which implies a different result may be reached if the property were non-homestead. At this time, no case holds that the two situations should be treated differently, but the Fourth District has left the question open. For now, the Firm will proceed with naming the heirs of the deceased Defendant, appoint a guardian ad litem when appropriate, and proceed with foreclosure as has been the practice throughout Florida until such time as a ruling directs otherwise.

For any questions regarding this legal alert, please contact us at [email protected]