Header graphic for print
Florida Banking Law Blog Legal developments impacting banking, finance and loan enforcement in Florida

Category Archives: Banking Operations

Subscribe to Banking Operations RSS Feed

Do you know where your debtor’s original promissory note is located?

Posted in Banking Operations, Legal Rulings

In August 2013, we discussed the requirements for enforcing a lost promissory note. The same year, the Florida legislature passed Section 702.015, Florida Statutes, requiring that the holder of a promissory note file an affidavit or certification regarding the location of the note at the time it files a complaint. Importantly, section 702.015 requires that… Continue Reading

Banking Statute Can’t Be Used As A Shield Against Wrongdoing

Posted in Banking Operations

Rogers Towers, P.A. and the Florida Banking Law Blog have previously emphasized how provisions of Chapter 655 of the Florida Banking Code governing the creation and administration of checking and savings accounts in the names of multiple parties are primarily designed to protect banks in establishing and maintaining such accounts. The Florida legislature did not… Continue Reading

Your commercial real estate loan documents say you’re entitled to a receiver. What does that mean?

Posted in Banking Operations

A receiver is a person or entity that has been charged with custodial responsibility for the property of others. One type of receivership that we saw quite a bit in the past decade involved the FDIC, which was appointed as the receiver after the failure of various banks. As receiver, the FDIC was tasked with… Continue Reading

Documentary Stamp Tax on Payment Option Mortgages

Posted in Banking Operations, Debt and Judgment Collection

Florida Documentary Stamp Tax in the amount of 35 cents per $100.00 (or fraction thereof) is payable on the principal amount financed under a written obligation to pay money that is made, delivered, sold, transferred or assigned in Florida. Borrowers have used nonpayment and underpayment of documentary stamp tax as an affirmative defense in the… Continue Reading

Recent opinion a reminder of potential pitfalls related to loan modifications.

Posted in Banking Operations, Debt and Judgment Collection

A recent decision out of Florida’s Fifth District Court of Appeal emphasizes the mindfulness lenders must have when negotiating loan modifications. In Kuehlman v. Bank of America, the bank had offered the borrower a loan modification that required the borrower to execute the modification agreement and make payments by certain deadlines. The borrower submitted the… Continue Reading

LAWSUIT CHALLENGING OPERATION CHOKE POINT PROCEEDS

Posted in Banking Operations

In a November 2014 post, this blog discussed how the Federal Deposit Insurance Corporation (“FDIC”) warned financial institutions they could be liable for facilitating illegal activities if their customers were involved in money laundering or consumer fraud. As part of an initiative known as Operation Choke Point, the FDIC issued guidance which advised banks to… Continue Reading

Time is Running Out for a 2015 Interest Rate Increase

Posted in Banking Operations

Despite indications from the Federal Reserve in as early as March that rates would be raised in 2015, the window for the Fed to hike interest rates this year is quickly closing. The Federal Open Market Committee (“FOMC”) makes decisions over monetary policy, including setting the benchmark interest rates. The FOMC meets eight times a… Continue Reading

Student Loan Servicers Fail to Comply With the Servicemembers Civil Relief Act

Posted in Banking Operations

As detailed in a previous post, the Servicemembers Civil Relief Act of 2003 (SCRA) protects members of the Army, Navy, Air Force, Marine Corps, and Coast Guard whose financial obligations and ability to participate in civil proceedings are materially affected by active-duty military service. The SCRA affects the rights of lenders on a range of… Continue Reading

The Role of the Department of Justice in Enforcing The Equal Credit Opportunity Act

Posted in Banking Operations

The ECOA has been the topic of numerous posts on this blog. It is the law which makes it illegal for a creditor to discriminate against a credit applicant on the basis of, among other factors, the applicant’s marital status, sex, race, religion, or age. To enforce and administer the ECOA, Congress authorized the Federal Reserve… Continue Reading

MILITARY LENDING ACT COVERS SOME BANKING PRODUCTS

Posted in Banking Operations

On July 22, 2015, the Department of Defense (DOD) issued its final rule implementing the Military Lending Act (MLA).  Enacted in 2006, the MLA seeks to protect active-duty military members and their dependents from predatory lending in high-cost consumer credit transactions.  The DOD exercises rule-making authority to delineate which types of transactions are covered by… Continue Reading

The CFPB’s Final Rule Postpones the Effective Date of the TILA/RESPA Integrated Disclosures (“TRID”) Rule until October 3, 2015

Posted in Banking Operations

It’s official – TRID will take effect on October 3, 2015. As we have previously discussed, ever since the Dodd-Frank Act mandated new, regime-changing, mortgage disclosures, the banking industry has been diligently preparing for the day that the Consumer Financial Protection Bureau (CFPB) implements a Truth-in-Lending Act (TILA)/Real Estate Settlement Procedures Act (RESPA) Integrated Mortgage… Continue Reading

When is your Final Deficiency Judgment Really Final?

Posted in Banking Operations

Florida 1st DCA Distinguishes Between Amending a Final Judgment under Florida Rule of Civil Procedure 1.540(a) and 1.540(b) as to Mistakes In Lorant v. Whitney National Bank, decided February 24, 2015, Florida’s First District Court of Appeal considered whether Florida’s Rules of Civil Procedure provide for the ability to correct “clerical mistakes” nearly three years… Continue Reading

STOP THE PRESSES – The CFPB Proposes Delaying the Effective Date of the TILA/RESPA Integrated Disclosures Rule until October 1, 2015

Posted in Banking Operations

The banking industry has spent the last two years preparing for the Consumer Financial Protection Bureau’s implementation of the Truth-in-Lending Act (TILA)/Real Estate Settlement Procedures Act (RESPA) Integrated Mortgage Disclosures Rule – referred to by the acronym “TRID.” (78 FR 79730). TRID was scheduled to become effective on August 1, 2015 by implementing significant changes… Continue Reading

Can a Debtor Satisfy a Claim Merely by Writing Satisfied on a Payment?

Posted in Banking Operations, Commercial Lending, Debt and Judgment Collection, Special Assets Litigation

Questions sometimes arise from creditors regarding the effect of a debtor sending to a bank or other creditor a check for less than the creditor’s claim that purports to be in “full satisfaction” of the creditor’s claim against the debtor. This potentially dangerous issue is governed by § 673.3111, Florida Statues, in Florida’s version of… Continue Reading

The Inadvertent Error Defense to Violations of the Equal Credit Opportunity Act

Posted in Banking Operations

The Equal Credit Opportunity Act (the “ECOA”) prohibits creditors from discriminating against credit applicants based on race, religion, sex, national origin, marital status, and age among other things.  Penalties for violations of the ECOA were discussed in a previous blog post, where we also mentioned that not every failure to comply with the ECOA results… Continue Reading

Overview of the Servicemembers Civil Relief Act

Posted in Banking Operations

The Servicemembers Civil Relief Act of 2003 (SCRA) protects members of the Army, Navy, Air Force, Marine Corps, and Coast Guard whose financial obligations and ability to participate in civil proceedings are materially affected by their active duty military service.  As the successor to the Soldiers’ and Sailors’ Civil Relief Act of 1940, the SCRA… 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

The Equal Credit Opportunity Act: Overview of Damages for Violations

Posted in Banking Operations

As previously discussed on this blog, the Equal Credit Opportunity Act (the “ECOA”) prohibits creditors from discriminating against credit applicants based on race, religion, sex, national origin, marital status, and age among other things. But what happens when a lender violates the ECOA? What penalties will a lender be subject to for noncompliance? Enforcement and penalties… 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

Marriage Equality and The Equal Credit Opportunity Act

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Dischargeability of Debts, Residential Foreclosure, Residential Real Estate Lending, Special Assets Litigation

On January 1, 2015, United States District Judge Hinkle issued an Order  ruling that all Florida counties are to start issuing marriage licenses to same-sex couples as of January 6, 2015. The implications of this ruling are significant for same-sex couples, and their creditors as well. There are various legal aspects to consider as Florida law… 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

Operation Choke Point

Posted in Banking Operations, Commercial Lending, FDIC Related Issues

As part of a coordinated, multi-agency initiative known as “Operation Choke Point,” the Federal Deposit Insurance Corporation (FDIC) has warned financial institutions that they might be liable for maintaining banking relationships with certain “high risk” businesses and customers.  Specifically, the FDIC expressed concern about relationships between banks and payment processors who use their deposit accounts… 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