While Florida’s non-claim statute is viewed as being harsh due to its consequences if not followed in a timely fashion, there are some exceptions in which certain claims are not barred.
Florida’s non-claim statute set forth in Section 733.702 of Florida Statutes provides that if a creditor fails to timely file their claim within the allowed period, the claim is barred and unenforceable. The statute also provides that a creditor can, on certain grounds, get an extension from the probate court. However, even without an extension, there are a few exceptions. There is nothing in the non-claim statute which affects or prevents: (a) a proceeding to enforce any mortgage, security interest, or other lien on property of the decedent ; (b) to the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance ; or (c) the filing of a cross-claim or counterclaim against the estate in an action instituted by the estate-but no recovery on a cross-claim or counterclaim shall exceed the estate’s recovery in that action.
Under these exceptions, a mortgage holder does not have to file a claim in order to be able to foreclose on a defaulted mortgage or security interest. However, if the mortgage company wishes to pursue a deficiency, they should file a claim. Also, a claimant may pursue a claim for damages-to the extent there is insurance coverage-without having to file a claim. However, experienced lawyers would advise filing a claim anyway just to protect one’s rights. In fact, many experienced lawyers would err on the side of filing a claim rather than running the risk of their rights being barred.
