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

Category Archives: Commercial Lending

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Landlord Lien Waivers and Tenant Subordinations Explained

Posted in Commercial Lending

Commercial loan structures frequently call for either landlord lien waivers or tenant subordination agreements. In a situation where the collateral is real property that is already subject to a leasehold interest, the proper document will be a tenant subordination agreement. This document will contractually alter the priority of the interests in the collateral real property…. Continue Reading


Posted in Commercial Lending, Residential Real Estate Lending

October is here and so are the new TILA-RESPA Integrated Disclosure rules or TRID, for short. One aspect of the new rules is the disclosure of title insurance premiums in consumer real estate transactions. The new federal law will require that lender’s title insurance policies be disclosed at the full premium. In Florida, though, the… Continue Reading

Top 7 ways to Close on Time, Avoid Unnecessary Legal Fees, and Stress Less

Posted in Commercial Lending, Residential Real Estate Lending

I have too many friends who leave their offices late in the evening the day before or the day of a closing. They miss time with their kids, cocktail hours, dinner, daylight… and still the closings are delayed. It’s a problem that happens all too often with my friends and colleagues working in the banking… Continue Reading


Posted in Commercial Lending

Florida is a state with plenty of agribusiness and lenders frequently consider commercial loans to growers of farm products with the products themselves as collateral. Farm products are not “goods” under the UCC definition and they are subject to some unique rules effecting a lender’s ability to perfect a lien on them. In that regard,… Continue Reading

Supreme Court to Settle Equal Credit Opportunity Act’s Spouse-Guarantor Rule

Posted in Commercial Lending

The Supreme Court has agreed to address a split between circuits that emerged last summer centering on whether the Equal Credit Opportunity Act (the “ECOA”) permits financial institutions to require the spouse of a loan applicant to guaranty the loan. The Court will seek to answer two unresolved questions: 1.  Are “primarily and unconditionally liable”… 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

Correcting a Legal Description after Final Judgment of Foreclosure and Sale

Posted in Commercial Lending, Commercial Real Estate Lending, Residential Foreclosure, Residential Real Estate Lending

Including an accurate legal description (known as the “legal”) in a mortgage is of utmost importance to lenders; in the event of foreclosure, a purchaser (often the lender) cannot obtain clear title to the property unless it obtains a deed where the legal matches the property actually held by the original mortgagor prior to the… 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

Documentary Stamp Taxes: Enforcing a Promissory Note and Mortgage Prior to Payment

Posted in Commercial Lending, Commercial Real Estate Lending, Dischargeability of Debts, Residential Real Estate Lending

While failure to pay Florida’s documentary stamp taxes on a promissory note or mortgage can subject the offender to criminal and financial sanctions, the state’s courts of appeal are split when it comes to determining whether Florida law permits enforcement of a note or mortgage when those taxes remain unpaid.  The split centers on language… 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

Spouse-Guarantor Rule: A Split Between Federal Circuit Courts

Posted in Commercial Lending, Commercial Real Estate Lending

When a closely-held entity applies for a loan, the financial institution usually requires the entity’s owner(s) to guaranty the loan.  If the owner is married, the financial institution may also require the owner(s) spouse(s) to guaranty to improve the likelihood that loan will be repaid if the borrower defaults.  This seems like a logical credit… Continue Reading

Eleventh Circuit Concludes That Filing a Proof of Claim After the Expiration of Statute of Limitations On the Ability to Collect a Debt Violates the FDCPA

Posted in Bankruptcy, Commercial Lending

Recently, the Eleventh Circuit Court of Appeals (the “Court”) ruled whether filing a proof of claim in a chapter 13 bankruptcy case after the statute of limitations on the ability to collect the debt expires violates the FDCPA.  In Crawford v. LVNV Funding, LLC, et. al., Debtor was indebted to a furniture company.  A third-party… 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

Diligence in Hotel Lending

Posted in Commercial Lending

The hotel industry appears to be on an uptick, which is good news for lenders.  Hotel construction in May 2014 is up over 13% from the same time period in 2013.  Moreover, record high occupancy rates and low supply could continue to drive an influx of new rooms into 2015 and beyond.  As more lenders are… Continue Reading

Eleventh Circuit Rules Post-Confirmation Settlement Proceeds are Property of Chapter 13 Estate

Posted in Bankruptcy, Commercial Lending

A recent case out of the Eleventh Circuit Court of Appeals (the “Court”) concluded that proceeds stemming from a post-confirmation settlement agreement between a chapter 13 debtor and its mortgagor related to a violation of the automatic stay become property of the bankruptcy estate.  In Crouser v. BAC Home Loans Servicing, LP (In re Crouser),… Continue Reading

Guarantors Remain Liable Under Renewed Promissory Note, Even Absent Notice or Consent, Where the Modifications Are Not Adverse To the Guarantors’ Interests

Posted in Commercial Lending, Commercial Real Estate Lending

In a prior post, we discussed a grantor’s continuing liability under a promissory note that is renewed without his notice or consent where the guaranty is a continuing guaranty, meaning it contemplates revisions or extensions of time.  In this post, we discuss the additional argument that a guarantor remains liable for a renewed promissory note,… 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

Eleventh Circuit Holds Replacement Value – Applies to Surrender of Collateral in Chapter 13 Plan

Posted in Bankruptcy, Commercial Lending

On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of secured creditors. The issue in In re Brown, 13-13013, 2014 WL 1245266 (11th Cir. 2014) was whether §506(a)(2)’s valuation standard, which requires use of… Continue Reading

An Exception to the Fair Market Value Rule: Use the Foreclosure Sales Price for a Deficiency after a Third Party Purchaser

Posted in Commercial Lending, Debt and Judgment Collection, Residential Foreclosure, Special Assets Litigation

If the value of a foreclosed property is less than the loan amount, lenders may seek a deficiency judgment from borrowers and guarantors after the foreclosure sale. In most cases, the lender is the sole bidder at the sale and takes title to the collateral property, so the court must determine the fair market value… Continue Reading

Guarantors Are Liable For Renewal Promissory Notes Executed Without Notice or Consent Even After Revoking Guaranty

Posted in Commercial Lending, Commercial Real Estate Lending, Residential Foreclosure, Residential Real Estate Lending

Promissory notes are often renewed and extended without the express written consent of, or even notice to, the guarantors of the note.  A guarantor, faced with changing circumstances and wishing to cut off his liability under a promissory note that has been renewed and extended beyond its initial maturity date, may decide to revoke or… Continue Reading

Recent Decision Caps Secured Creditor’s Credit Bid in §363 Sale to Purchase Price of Acquired Debt

Posted in Bankruptcy, Commercial Lending

It is well-settled that secured creditors are ordinarily entitled to credit bid their allowed secured claim in a sale pursuant to § 363 of the Bankruptcy Code (the “Code”). In Radlax Gateway Hotel, LLC v. Amalgamated Bank, 132 S.Ct. 205 (2012), the Supreme Court acknowledged that bankruptcy courts have the power to prohibit a secured… Continue Reading