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

Category Archives: Debt and Judgment Collection

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Courts continue to examine statute of limitations for installment loans:

Posted in Debt and Judgment Collection

Florida courts continue to grapple with various issues related to the statute of limitations for installment loans and whether a previously dismissed foreclosure action bars suit on subsequent defaults. As we have previously discussed, in U.S. Bank National Association v. Bartram, Florida’s Fifth District Court of Appeal decided that the dismissal of a previous foreclosure… Continue Reading

Third DCA Agrees That Paragraph 22 Notice Provisions Require Only Substantial Compliance

Posted in Debt and Judgment Collection, Residential Foreclosure

In many residential mortgage foreclosures, paragraph 22 of the mortgage provides certain notice provisions with which a lender must comply before it can bring the foreclosure action. As we have previously posted, in 2014, Florida’s Second District Court of Appeal issued an opinion determining that a lender’s substantial, rather than strict, compliance with paragraph 22… Continue Reading

Debt collectors violate the FDCPA by filing a time-barred proof of claim in a bankruptcy case—or do they?

Posted in Debt and Judgment Collection

The Fair Debt Collection Practices Act (the “FDCPA”), codified at 15 U.S.C. §§ 1692–1692p, is a consumer protection statute intended to curtail false, deceptive, or unfair debt collection practices. The FDCPA regulates the conduct of “debt collectors,”[1] and provides consumers with a civil cause of action against those debt collectors who violate it.[2] Among the… 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

The Lifespan of Money Judgments, Judgment Liens on Real Property and Judgment Lien Certificates on Personal Property

Posted in Debt and Judgment Collection

Creditors and debtors should be aware of the lifespan of money judgments, as well as judgment liens on real and personal property. This blog is intended to address, under Florida law, judgments liens on real property, judgment liens on personal property, and the lifespan of the judgment itself. First, by recording a certified copy of… Continue Reading

Can a Bank be Neither a Creditor nor a Debt Collector under the FDCPA?

Posted in Debt and Judgment Collection

Banks that meet the statutory definition of “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”) are prohibited from engaging in abusive consumer debt collection practices. Excluded from the debt collector classification are those banks that qualify as “creditors” under the FDCPA. But what if a bank that acquires a debt and seeks to… Continue Reading

Does Res Judicata Bar a Subsequent Foreclosure Action?

Posted in Debt and Judgment Collection, Residential Foreclosure

While lenders frequently prevail at foreclosure trials, there are certainly occasions where they do not. In those instances, is the lender precluded from pursuing a subsequent foreclosure action by the doctrine of res judicata? In Singleton v. Greymar Associates, the Florida Supreme Court addressed this issue, holding that when a lender loses a foreclosure action,… Continue Reading


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

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

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

Garnishing Non-Cash Proceeds from Sale of a Homestead

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

Cash proceeds obtained from the sale of a homestead property receive protection from creditors’ claims, provided the funds are not commingled with other assets and are intended in good faith to be reinvested in a new homestead.  In essence, courts treat the proceeds as a provisional homestead, temporarily protecting the proceeds from levy until they… 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

Acceleration and Florida’s Five-Year Statute of Limitations

Posted in Debt and Judgment Collection, Special Assets Litigation

Florida’s Third District Court of Appeal recently filed an opinion that illuminates when a lender’s acceleration of debt triggers the five-year statute of limitations.  In Snow v. Wells Fargo Bank, N.A., 2015 WL 160326 (Fla. 3d DCA Jan. 14, 2015), the court considered the argument of borrowers who appealed a foreclosure judgment on the basis… 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

Authenticating Loan Records From Prior Lenders

Posted in Debt and Judgment Collection, Special Assets Litigation

In special assets litigation, a bank offers into evidence its own loan records as well as the records of other lenders who previously serviced the loan.  However, Florida courts treat these records as inadmissible hearsay until the lender demonstrates that the records satisfy the business records exception to the hearsay rule.  A recent decision, Holt… 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

Garnishment in Florida: Serving Writs of Garnishment on Third Party Bank Accounts

Posted in Debt and Judgment Collection

In a previous article, we provided an overview of the basic procedures judgment creditors must follow when serving writs of garnishment on banks and the obligations of financial institutions that are served with writs.  We also suggested that complications may arise when judgment creditors pursue bank accounts that include more than one party as the… Continue Reading

Writs of Garnishment in Florida: An Overview

Posted in Debt and Judgment Collection

Writs of garnishment provide judgment creditors (i.e., the party in whose favor the judgment was entered) access to money that belongs to debtors but is possessed or controlled by third parties, typically financial institutions.  Chapter 77 of the Florida Statutes details the State’s procedures for properly obtaining and executing writs of garnishment, and Florida courts… 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

Written Document Retention and Destruction Policy Saves the Day (Again)

Posted in Debt and Judgment Collection

As we mentioned in our previous posts regarding document preservation, establishing a written document retention and destruction policy is essential to any company, large or small.  As with the Pradaxa case out of the Southern District of Illinois, a recent case out of the Northern District of New York, Research Foundation of SUNY v. Nektar… Continue Reading

Complying with the Florida Consumer Collection Practice Act

Posted in Debt and Judgment Collection

In addition to ensuring compliance with the federal Fair Debt Collection Practices Act (FDCPA), lenders should take precautions to limit its exposure to claims under the Florida Consumer Collection Practices Act (FCCPA).  For example, lenders should:   Ensure that loan accounting systems accurately track the terms of loan modifications, forbearance agreements, and other loan documents… Continue Reading

Detroit Bankruptcy Update: Settlements and Feasibility

Posted in Bankruptcy, Debt and Judgment Collection

In Detroit’s ongoing restructuring effort, the city cleared a major hurdle last week by settling with its largest adversary, Syncora Guarantee, a New York based bond insurer.  The settlement was negotiated just a week into the bankruptcy trial and was so significant that Judge Steven Rhodes adjourned the trial for two days to allow the… Continue Reading