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

Scott J. Kennelly

Scott J. Kennelly is a member of Rogers Towers' Litigation Department. His practice is dedicated to representing business entities in complex litigation matters and other disputes in the areas of commercial litigation, business torts and civil trial practice. His focus is on creditor's rights, real property and special assets litigation. Prior to joining Rogers Towers, Mr. Kennelly served as a law clerk to United States Circuit Judge Susan H. Black of the United States Eleventh Court of Appeals. During law school, Mr. Kennelly spent time as an intern with the United States Attorney's Office in Jacksonville.

Posts by Scott J. Kennelly

FDUTPA Exemptions Do Not Extend to Bank Subsidiaries

Posted in Legal Rulings

FDUTPA is the primary consumer protection statute in Florida, prohibiting unfair, unconscionable, or deceptive methods of competition, practices, or acts in the conduct of commerce. According to the express terms of the statute, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) does not apply to banks or savings and loan associations regulated by federal… Continue Reading

ARE JURY TRIAL WAIVER PROVISIONS NECESSARY FOR FORECLOSURES?

Posted in Debt and Judgment Collection, Residential Foreclosure

Jury trial waiver provisions are likely unnecessary for foreclosure actions. It is well-settled under Florida law that mortgage foreclosures are actions in equity, and therefore do not entitle a party to a jury trial. A recent decision by the Fourth District Court of Appeal makes clear that jury trials are also not proper even when… Continue Reading

Rights of Creditors to Judicial Dissolution of Corporations

Posted in Debt and Judgment Collection

In certain instances, when a creditor has a claim against an insolvent corporation, it may be entitled to seek judicial dissolution of the entity in an effort to collect whatever assets the entity may hold. The Florida Statutes provide that such a remedy is available if: the corporation has admitted in writing that the creditor’s… Continue Reading

Depositions: “Invoking the Rule” To Exclude Persons From Attending Depositions

Posted in Uncategorized

Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony of other witnesses.  Although witness sequestration during trial is routine, Florida law is less clear on whether attorneys can utilize this procedure during a… Continue Reading

Lenders Still Struggle with Issue of Standing – a New Spate of Cases out of the Fourth DCA

Posted in Banking Operations

We have written multiple blogs about standing to foreclose, but a new spate of recent cases out of Florida’s Fourth District Court of Appeals demonstrate that lenders still struggle with the issue of standing.  On March 25, 2015, the Fourth DCA authored six opinions finding that lenders failed to establish standing to foreclose at the… Continue Reading

Foreclosure Sales in Florida’s Federal Courts

Posted in Banking Operations, Debt and Judgment Collection, Residential Foreclosure

Although typically foreclosure actions are brought in state court, lenders may occasionally find themselves pursuing foreclosure in federal court.  Although the costs and procedures for conducting the foreclosure sale are basically consistent across Florida state courts, procedures for foreclosure sales in federal courts in Florida can be more costly and cumbersome. Generally speaking, the U.S…. Continue Reading

IBERIABANK v. Beneva

Posted in Banking Operations, FDIC Related Issues, Special Assets Litigation

When an institution acquires a failed bank from the FDIC as Receiver and then faces litigation arising from the failed bank’s loans, FDIC “special powers” can often be asserted by the institution, as assignee of the FDIC as Receiver, to bar certain claims or defenses brought by the borrowers.  In November 2012, the United States… Continue Reading

Florida Deficiency Proceedings: Costs Recoverable Following Foreclosure

Posted in Debt and Judgment Collection, Special Assets Litigation

Following a foreclosure sale, a lender may seek to obtain a deficiency judgment against the borrower and guarantors for the difference between the amount of the debt (as listed in the foreclosure judgment) and the value of the property.  As part of this effort, a lender may also be able to recover certain costs. As… Continue Reading

Usury in Florida: Exceptions to Civil Penalties

Posted in Banking Operations

When a lender “willfully” charges interest in excess of statutory limits, civil usury penalties may apply.  However, Florida’s usury statutes provide for two exceptions to the application of civil usury penalties. The first exception applies to purchasers or transferees of a loan purchased prior to its maturity date.  In that case, purchasers or transferees will not… Continue Reading

Discovery and Social Media

Posted in Debt and Judgment Collection

The advent of social media has brought about many changes in the world of litigation, not the least of which is the availability of information that previously would have been impossible to discover.  It is hardly an exaggeration that between Facebook, Instagram, Twitter and other social media platforms, millions of people post their every move… Continue Reading

Usury in Florida: Penalties

Posted in Banking Operations

There are two “tiers” of penalties for violation of the Florida usury statutes, one civil and the other criminal, and both are severe.  Civil penalties usually involve forfeiture of the entire interest charged (or contracted to be charged), such that only the principal balance may be enforced. If a court determines that unlawful usurious interest… Continue Reading

FIRREA Protects Purchasing Banks Against Some Claims Disguised as Affirmative Defenses

Posted in FDIC Related Issues, Special Assets Litigation

As previously discussed on this blog, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process  for claims against the assets of failed financial institutions.  If a party with a claim against a failed bank does not comply with FIRREA’s requirements, then that party is generally barred from later raising… Continue Reading

A Potential Defense for Purchasing Banks Against Lender Liability Claims Based on the Actions of a Failed Bank

Posted in FDIC Related Issues, Special Assets Litigation

Previous posts discussed how the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process for claims against the assets of failed financial institutions.  If a party with a claim against a failed bank does not comply with FIRREA, then that party is barred from later bringing that claim in federal… Continue Reading

Jurisdiction After Settlement Agreements

Posted in Debt and Judgment Collection, Special Assets Litigation

In the midst of litigation, the lender and the borrower often reach a settlement and execute a settlement agreement.  Sometimes, the settlement agreement calls for the immediate resolution of the lawsuit, so the lender complies by dismissing the lawsuit.  But what happens if the borrower later breaches the settlement agreement?  The lawsuit was dismissed, so… Continue Reading

Claims Against Failed Banks Must Go Through the FDIC’s Administrative Claims Process

Posted in FDIC Related Issues

As described in a previous post, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) requires that anyone with a claim against a failed bank must file a claim with the FDIC within 90 days of being notified (either by mail or by newspaper publication) of the FDIC’s administrative claims process. Claims that must go… Continue Reading

The FDIC’s Administrative Claims Process for Failed Banks

Posted in FDIC Related Issues, Residential Foreclosure, Special Assets Litigation

Enacted by Congress after the Savings and Loan Crisis of the 1980s, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) gives the FDIC sweeping authority to resolve the problems posed by a failed financial institution. This authority includes a mandatory administrative claims process to help the FDIC efficiently identify all claims against the receivership… Continue Reading

Question Certified to the Florida Supreme Court: Can Lenders Cure Standing Defects?

Posted in Special Assets Litigation

Establishing standing—the legal basis of a plaintiff’s right to bring suit—to enforce a promissory note is a critical aspect of any foreclosure action. Florida case law requires that the party seeking to foreclose have standing at the time the lawsuit is filed. This can be problematic for lenders who own notes which have been sold… Continue Reading

Discovery of Loss-Share Payments in Litigation: Public Policy

Posted in FDIC Related Issues, Special Assets Litigation

Financial institutions seeking to challenge discovery relating to Loss-Share Agreements and payments from the FDIC should be able to do so on the grounds of relevance, as we previously discussed. A second argument against such discovery is based on the public policy underlying Loss-Share Agreements. Reducing a creditor’s claim based on the amount that it… Continue Reading