MDK Client Alert: Desbrunes Reversed - Fourth DCA Affirms Foreclosure Ruling

Desbrunes reversed!

On May 8, 2024, less than three months after Florida’s Fourth District Court of Appeals (encompassing Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee counties) issued its decision in Desbrunes v. U.S. Bank, NA, as Trustee, the Fourth DCA withdrew its decision and affirmed the lower court’s ruling in favor of the foreclosing plaintiff.  

The Fourth DCA determined the foreclosing plaintiff does not have to open a probate estate for a deceased owner in order to have a personal representative appointed so long as the real estate being foreclosed is homestead property. The Fourth DCA explained that the transfer of title to homestead property passes outside of the probate process and the personal representative of the deceased owner’s estate has no authority over it citing decisions from sister court of appeals. The result is the appropriate parties to name in a foreclosure case involving homestead property are the heirs of the deceased owner.

Implications and Remaining Questions

While the new Desbrunes decision is welcome, there are a couple of items of caution. First, the question remains whether the personal representative of an estate needs to be included in a foreclosure of non-homestead real property as the sole defendant or in conjunction with the heirs of the deceased owner. Second, questions remain whether the personal representative can be named in the case at all and what to do if there is an open probate case in another state, but none in Florida when foreclosing a lien on homestead property. The Fourth DCA did not answer these questions and limited its decision. Until further clarification is provided, normal operating procedure, whichever path that may be, should be followed.

Finally, the parties in the Desbrunes case have until about mid-June of 2024 to appeal the decision to the Florida Supreme Court. Should a party file such an appeal, MDK will provide further updates.