Douglas L. Waldorf, Jr.
Magistrates to Handle Florida Residential Foreclosure Actions – Florida Supreme Court Amends Rule 1.490 and Significantly Changes Landscape of Residential Foreclosure Litigation
Posted in Debt and Judgment Collection, Residential Foreclosure, Special Assets LitigationIt is no secret that Florida consistently ranks among the worst states in the union in regards to the mire of the residential mortgage foreclosure case backlog. From 2007 to 2013, approximately 1.5 million foreclosure cases have been filed in Florida alone. As of February 2013, nearly 360,000 cases remained pending in Florida courts, and… Continue Reading
HB 87 – Florida’s Foreclosure Bill Is Back (Part 2)
Posted in Debt and Judgment Collection, Special Assets LitigationIn a prior post, we discussed two of the four main components of HB 87, the foreclosure reform bill presently under consideration in Florida. The remaining sections of the bill which merit consideration involve a revised “show cause” procedure and provisions designed to protect third parties who have purchased foreclosed property. The bill proposes to… Continue Reading
Municipal Liens vs. Mortgages: Which Has Priority?
Posted in Debt and Judgment Collection, Special Assets LitigationI have recently encountered several situations in which local governments are claiming, under ordinances they have enacted, that their liens and fines have “superpriority” status over existing mortgages, regardless of when the liens were recorded and whether or not the mortgage holder ever was given notice of the liens. It seems that these claims are… Continue Reading
Transfers of Real Property for Estate Planning and Other Purposes and Their Effect on the Mortgage Lender
Posted in Commercial Real Estate Lending, Residential Real Estate LendingI receive frequent inquiries from bank clients who are concerned because their mortgage borrower has requested permission to transfer the collateral real property to another entity. These requests commonly are made for estate planning purposes (though other reasons are often cited) and may involve transferring the property to other entities such as a trust. The… Continue Reading
HB 87 – Florida’s Foreclosure Bill is Back
Posted in Debt and Judgment Collection, Special Assets LitigationOn February 7, the House Civil Justice Subcommittee voted to pass Florida’s newest bill designed to improve the efficiency of mortgage foreclosures: House Bill 87. While it is still early in the legislative process, this is a good time to examine the four main components of the bill. First, the new bill limits the time… Continue Reading
Foreclosure Strategies for Second Mortgage Holders
Posted in Debt and Judgment Collection, Special Assets LitigationLenders holding second mortgages will, assuming the first mortgage is in default, face decisions as to how to best protect their interests in the property. These questions typically come to the forefront when the first mortgage holder files a foreclosure suit and names the second mortgage holder as a defendant. The bank in second position… Continue Reading
Residential Lending and the Ability to Repay Rule
Posted in Residential Real Estate LendingOn January 10, 2013 the Consumer Financial Protection Bureau issued a rule imposing new requirements on residential mortgage lenders. The “Ability-to-Repay” rule was created to help implement certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act in an effort to enhance the reliability of residential mortgages by ensuring that underwriting standards address… Continue Reading
Minimizing Delay in Owner Occupied Commercial Real Estate Foreclosures
Posted in Debt and Judgment Collection, Special Assets LitigationThis article is an update of an article which some of our blog readers may have received by email. Based on recent experience that I have had with this statute in circuit court, I have revised the original article. On average, a Florida foreclosure can take nearly two years from service of process to final… Continue Reading
The Status of Florida Foreclosures
Posted in Debt and Judgment Collection, Special Assets LitigationRecently, The Wall Street Journal published an editorial discussing the status of mortgage foreclosure litigation. The purpose of the article was to extol the alleged benefits of non-judicial foreclosure over judicial foreclosure. Without getting into the politics or relative merits of the contrasting systems, let’s take a quick look at some of the reported statistics… Continue Reading
Documentary Stamp Tax: a Quick Review of the Basics
Posted in Commercial Lending, Commercial Real Estate Lending, Residential Real Estate Lending, State Tax IssuesHappy new year to our blog readers! In 2013, we are all hoping for an improved economy and, with it, an increase in the volume of commercial and consumer loans. Remember that Florida has certain transactional taxes for which lenders are the responsible collecting parties including documentary stamp taxes. In case you are new to… Continue Reading
Legal Standing to Bring a Mortgage Foreclosure Lawsuit
Posted in Debt and Judgment Collection, Special Assets LitigationThe importance of demonstrating legal standing as a condition precedent to filing a mortgage foreclosure lawsuit cannot be overstated. In simple terms, “standing” refers to one’s legal right to bring a lawsuit. If the plaintiff does not have standing at the time a foreclosure case is filed, there can be serious consequences including dismissal of… Continue Reading
More Changes in Store for the Hud-1
Posted in Residential Real Estate LendingMany of you will remember the sweeping revision of the venerable HUD-1 form which went into effect in 2010 as well as the hours of retraining that we all went through to understand it. Since its formation, the Consumer Financial Protection Bureau (created by the Dodd-Frank Act) has been implementing forms to be used in… Continue Reading
A New Case Helps Lenders Avoid Foreclosure Delays Caused by Guarantors
Posted in Banking Operations, Debt and Judgment Collection, Special Assets LitigationIn many foreclosure cases, the strategy of the borrower is simply to delay the case. Typically, the borrower hopes that delay will allow time to either work out a settlement with the lender or find a third party buyer for the mortgage property. In commercial foreclosures, the foreclosing lender typically includes as defendants the guarantors… Continue Reading
Appraisal Dates and Deficiency Judgments: Is Close Good Enough?
Posted in Special Assets LitigationIn Florida, the legal standard for a mortgagee to obtain a deficiency judgment following foreclosure is to establish the difference between the amount of the indebtedness and the fair market value of the foreclosure property as of the date of the foreclosure sale. The amount of the indebtedness is typically established by means of the… Continue Reading
Obtaining a Money Judgment Against Guarantors While Also Pursuing Foreclosure of a Mortgage
Posted in Debt and Judgment Collection, Special Assets LitigationRecently, the Fifth District Court of Appeals decided Fort Plantation Investments, LLC v. Ironstone Bank, a case that may be of interest to lenders considering their options in pursuing a borrower for mortgage foreclosure and also a money judgment against guarantors. The good news is that Fort Plantation Investments is another case supporting the bank’s… Continue Reading
The Importance of Having the Correct Appraisal Evidence When Seeking Deficiency
Posted in Special Assets LitigationMost of you may know that, in Florida, the standard by which a deficiency is determined in a foreclosure case is the difference between the amount owed to the lender and the fair market value of the mortgage property as of the date of the foreclosure sale. This has been well established by case law… Continue Reading
How Does a Bank’s Claim For Set-Off Fare in the Face of a Garnishment?
Posted in Banking Operations, Debt and Judgment Collection, Special Assets LitigationIn Florida, it is well established that a bank has a common law right of set-off against funds held in a depositor’s account if the depositor has defaulted under a loan from the bank. This allows the bank the option to apply the funds in the depositor’s account as needed to pay the outstanding obligation… Continue Reading
Can a Court Appointed Receiver Sell Real Property During a Florida Mortgage Foreclosure Case?
Posted in Special Assets LitigationIt is relatively common in commercial mortgage foreclosure cases for the mortgagee to seek the appointment of a receiver during the pending lawsuit. If the loan documents provide for a receiver and the plaintiff can meet the legal standard (generally, by showing that a default has occurred together with other factors such as diminishing property… Continue Reading