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Category Archives: Banking Operations

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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

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