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

Category Archives: Banking Operations

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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

Who Do You Trust?— New Ruling Highlights the Need for Care in Deciding How to Open Your Joint Bank Account

Posted in Banking Operations

Florida law recognizes, and most banks offer, multiple forms of account designation to meet the desires and needs of individual customers.  Keep in mind, however, that the standard demand deposit account agreement (whether checking or savings), is primarily, and understandably, designed to guide and instruct the bank with respect to the payment of checks drawn… 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

The Equal Credit Opportunity Act’s Safe Harbor for Assignees

Posted in Banking Operations

In a previous post, we considered whether guarantors are considered to be “applicants” under the Equal Credit Opportunity Act (the “ECOA”), and today, we will consider whether assignees who acquire debt would be subject to penalties under the ECOA. The question turns on whether assignees are considered to be “creditors” under the law. The ECOA… Continue Reading

Overview of the Florida Consumer Collection Practice Act

Posted in Banking Operations, Debt and Judgment Collection

As discussed in a prior post, the Florida Consumer Collection Practices Act (FCCPA) can apply to both debt collectors (like collection agencies) and lenders who seek to collect their own debts.  The FCCPA is broader than the federal Fair Debt Collections Practices Act (FDCPA), which only regulates the behavior of third-party “debt collectors.”  This is… Continue Reading

Do Guarantors Fall Under the Protection of the Equal Credit Opportunity Act?

Posted in Banking Operations

We have discussed the Equal Credit Opportunity Act(“ECOA”), which makes it unlawful for a creditor to discriminate against an applicant in any aspect of a credit transaction on the basis of, among other things, the applicant’s marital status, religion, sex, race, or age. The Federal Reserve Board has enacted regulations to implement this law. One… Continue Reading

Florida Consumer Collection Practices Act Applies to Anyone Collecting a Debt

Posted in Banking Operations, Debt and Judgment Collection

The Florida Consumer Collection Practices Act (“FCCPA”) prohibits anyone attempting to collect a debt from using certain types of abusive, deceptive, and misleading tactics.  In a recent decision, Florida’s Second District Court of Appeals ruled that the FCCPA applies not just to “debt collectors” but also to banks that send demand letters to borrowers whose… Continue Reading

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

Limits to the Duty to Preserve

Posted in Banking Operations, Commercial Lending, Debt and Judgment Collection

Although a suit against a particular officer of a corporation for sexual harassment would clearly trigger a litigation hold, what must counsel do about less obvious players in a more abstract dispute?  The recent case of AMC Technologies, LLC v. Cisco Systems, Inc., presents just such an issue. In AMC opinion, decided in the Northern… Continue Reading

U.S. Supreme Court Issues Bank Fraud Decision

Posted in Banking Operations

On June 23, 2014, the U.S. Supreme Court issued its decision in Laughlin v. United States which defined what type of fraudulent activity is punishable under the federal bank fraud statute.  Posing as a Mormon missionary, Kevin Loughrin went door-to-door in a Salt Lake City neighborhood and rummaged through mailboxes looking for checks.  He then… Continue Reading

Documenting a Borrower’s Intent to Apply for Joint Credit under the Equal Credit Opportunity Act

Posted in Banking Operations

The Equal Credit Opportunity Act (“ECOA”) was signed into law by Congress in 1974.  This law makes it unlawful for a creditor to discriminate against an applicant in any aspect of a credit transaction on the basis of, inter alia, the applicant’s marital status, religion, sex, race, or age.  Pub. L. No. 93-495, 15 U.S.C.A…. Continue Reading

The Business Records Exception to the Hearsay Rule

Posted in Banking Operations, Residential Foreclosure

When a bank assigns a mortgage to another bank, the assignor typically provides a loan payment history to the assignee as part of the transfer. If the assignee later brings suit to foreclose the mortgage, it is typical to seek foreclosure via a Motion for Summary Judgment.  In support of such a motion, we include… Continue Reading

“Substantial Compliance” With Notice Requirements Not Enough

Posted in Banking Operations, Commercial Lending, Residential Foreclosure

Florida’s Fifth District Court of Appeal recently emphasized the need for lenders to strictly comply with the notice requirements of a mortgage prior to foreclosure. In Samaroo v. Wells Fargo, the borrower appealed the circuit court’s entry of a summary final judgment of mortgage foreclosure. Finding that the bank failed to strictly comply with all… Continue Reading

Google Case Provides Spoliation Exception to Living Document Safeguard

Posted in Banking Operations

Google has come under scrutiny in the last few years over collecting information from users’ email accounts to provide targeted advertising for its paid clients. In a 2013 case filed in the Northern District of California, Keith Dunbar filed a class action lawsuit against the internet behemoth, alleging that Google had unlawfully and intentionally intercepted… Continue Reading

Obtaining a Deficiency Judgment in Georgia – Overview of Procedures

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Residential Foreclosure, Residential Real Estate Lending

A previous post discussed the non-judicial foreclosure procedure used in Georgia. This post discusses the steps that a Florida bank doing business in Georgia, or with clients owning property in Georgia, must take to obtain a deficiency judgment against the debtor. A power-of-sale foreclosure is truly non-judicial; the procedure does not contemplate any involvement of… Continue Reading