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LACHES MAY BE A DEFENSE TO YOUR FORECLOSURE

Under Florida Law, a borrower must plead the affirmative defense of laches in order to attempt to defeat a mortgagee's claim for foreclosure. Laches is as an equitable doctrine that is based upon an unreasonable delay on Plaintiff's part in asserting a known right that causes undue prejudice to the party against whom the claim is asserted.

The application of the doctrine of laches depends upon the circumstances of each particular case. Laches may be applied before the statute of limitations expires only where strong equities appear.

As an affirmative defense, the burden of proving laches is on its proponent, and it must be proved by very clear and positive evidence." Van Meter v. Kelsey, 91 So. 2d 327, 331 (Fla. 1956). The Court in Van Meter established in order to raise the affirmative defense of laches, a defendant must show: (1) conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made, (2) plaintiff, having had knowledge or notice of the defendant's conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights, (3) lack of knowledge on the part of the defendant that the plaintiff will assert the right upon which suit is based, (4) the injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in the even the suit is held not to be barred.

In Florida, laches has been applied to defeat a mortgagee's claim for foreclosure.In Travis, the Florida Supreme Court discussed prejudice in a laches case involving a mortgage foreclosure. In that case, a mortgagee attempted to foreclose upon a mortgage and note that was seventeen years in default.During the time in default, Defendant, purchaser of a tax deed to the property, paid all the property taxes upon the property and made substantial improvements to same. Upon those facts, the Supreme Court held that the mortgagee was barred from foreclosing under the equitable doctrine of laches, even though the applicablestatute of limitations had yet to expire.

In conclusion, should a borrower become in default of a mortgage and the mortgagee does not accelerate the mortgage within a substantial period of time and the mortgage has not reached its maturity date, a borrower may raise the affirmative defense of laches to attempt to bar the mortgagee's action to foreclose.

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