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Florida Banking Law Blog Legal developments impacting banking, finance and loan enforcement in Florida

Douglas L. Waldorf, Jr.

Douglas Waldorf manages the firm's offices in Southwest Florida. He is a member of Rogers Towers' Banking and Financial Services Practice Group and its Real Estate Department. A Florida Bar Board Certified Real Estate Attorney, Mr. Waldorf's practice focuses on serving banking industry clients in all aspects of commercial and residential financing transactions as well as in mortgage foreclosures, deeds in lieu of foreclosure, forbearance agreements and other matters related to defaulted loan workouts and collection.

Posts by Douglas L. Waldorf, Jr.

A New Case On Standing to Foreclose

Posted in Banking Operations

Legal standing to foreclose a note and mortgage continues to be an issue that frustrates plaintiffs and delights defense counsel.  Florida courts have consistently held that standing must exist when the lawsuit is filed and the lack of standing cannot be “cured” absent a dismissal and refiling of the case.  At a minimum this adds… Continue Reading

Plaintiff Has the Burden To Prove Its Right to Enforce the Note Even If It Is Not Challenged By the Defendant In Its Pleadings

Posted in Residential Foreclosure

The legal right to enforce, by judicial proceeding, a promissory note and mortgage is referred to as “standing”.  This has been a hot topic in Florida foreclosure cases with courts holding that standing must exist when the suit is filed and, if it does not, the lack of standing is a defect that cannot be… Continue Reading

Managing Litigation Cost – Florida’s Expedited Foreclosure Procedure

Posted in Debt and Judgment Collection, Loan Workouts, Special Assets Litigation

This article is the final article of a series and is excerpted from my book entitled Mortgage Foreclosure and Loan Collection: A Practical Guide for Lenders which is now available at Amazon.com. Here, we discuss Florida’s show cause procedure as a means of expediting mortgage foreclosure cases and therefore reducing cost. On average, a Florida… Continue Reading

Managing Litigation Cost – Discovery and Summary Judgment Motions

Posted in Debt and Judgment Collection, Loan Workouts, Special Assets Litigation

This article is the second of a series and is excerpted from my book entitled Mortgage Foreclosure and Loan Collection: A Practical Guide for Lenders which is now available at Amazon.com. Here, we discuss the impact of the discovery process and summary judgment motions on litigation cost. The discovery process can be a very expensive… Continue Reading

Authority to Endorse Note and Mortgage Not Self-Authenticating

Posted in Banking Operations, Debt and Judgment Collection

This post is no longer current.  The Third Circuit reversed its opinion in Bennett and held that authority is self-authenticating.  For more on the revised opinion, please see our updated post. Establishing the authority to foreclose a note and mortgage is simple when the note and mortgage are held by the original lender. In today’s… Continue Reading

HB 87 – A Summary of Florida’s New Foreclosure Law – Part 2: A Closer Look at F.S. 702.015

Posted in Residential Foreclosure, Special Assets Litigation

One of the new statutes created by HB 87 is 702.015. I referenced this in a prior blog post on July 11, 2013. In reviewing the statute in detail, I find it somewhat unclear as to whether the statute applies only to residential foreclosures or to both residential and commercial foreclosures, depending upon which section… Continue Reading

Managing Litigation Cost: Pre-Lawsuit File Review

Posted in Debt and Judgment Collection, Loan Workouts, Special Assets Litigation

In today’s environment, clients are more cost-conscious than ever and this is in direct conflict with the ever-increasing cost of litigation. There are, however, some common sense ways in which a case can be managed in order to help minimize the associated fees and costs. This article is the first of a series and is… Continue Reading

HB 87 – A Summary of Florida’s New Foreclosure Law – Part 1

Posted in Residential Foreclosure, Special Assets Litigation

In prior posts we analyzed the main components of HB 87, the bill introduced in the Florida legislature which proposed significant changes to certain aspects of Florida’s mortgage foreclosure process. The bill was signed into law by Governor Scott and was effective as of June 7, 2013. In this and future posts we will review… Continue Reading

HB 87 – Florida’s Foreclosure Bill Becomes Law

Posted in Debt and Judgment Collection, Special Assets Litigation

In two prior posts, we analyzed the main components of HB 87, the bill introduced in the Florida legislature which proposed significant changes to certain aspects of Florida’s mortgage foreclosure process. Last week, the bill was signed into law by Governor Scott. There are, of course, both proponents and opponents to this new law but… Continue Reading

Documentary Stamp Tax on Renewal Loans – A Review of the Basics

Posted in Banking Operations, Commercial Real Estate Lending, Residential Real Estate Lending, State Tax Issues

With property values slowly increasing and borrowers beginning to see the light at the end of a long recession, the demand for renewal loans is slowly building. To that end, let’s briefly review a few of the key rules concerning documentary stamp taxes as they apply to renewal loans. Generally, in Florida, a written promise… Continue Reading

Municipal Liens vs. Mortgages: Florida’s Supreme Court Rules on Superpriority Issue

Posted in Debt and Judgment Collection, Special Assets Litigation

In my April 18th post, I discussed the recent trend of municipalities enacting ordinances designed to give their code enforcement liens “superpriority” over prior-recorded mortgages. Basically, the municipalities have sought to achieve for their liens the same priority as that afforded liens for unpaid real estate taxes. In 2011, the 5th District Court of Appeal… Continue Reading

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 Litigation

It 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 Litigation

In 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 Litigation

I 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 Lending

I 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 Litigation

On 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 Litigation

Lenders 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 Lending

On 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