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Category Archives: Debt and Judgment Collection

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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

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

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

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

Non-Dischargeable Tax Debt Not Special Class of Unsecured Creditors

Posted in Bankruptcy, Debt and Judgment Collection

In numerous previous posts, we have noted that the purpose of the Bankruptcy Code is to help the “honest but unfortunate debtor.”  Like gerrymandering, certain “creative” debtors have attempted to classify their non-dischargeable debt as a separate, special class of unsecured creditors.  In a recent case out of the Eighth Circuit, In re Copeland, the… 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

Jurisdiction After Settlement Agreements

Posted in Debt and Judgment Collection, Special Assets Litigation

In the midst of litigation, the lender and the borrower often reach a settlement and execute a settlement agreement.  Sometimes, the settlement agreement calls for the immediate resolution of the lawsuit, so the lender complies by dismissing the lawsuit.  But what happens if the borrower later breaches the settlement agreement?  The lawsuit was dismissed, so… 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

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

Case Update: Authority to Endorse Note and Mortgage IS Self-Authenticating

Posted in Banking Operations, Debt and Judgment Collection

In our August 29, 2013 post, we reported on a shift in the case law regarding the self-authentification of the authority to endorse a note and mortgage. Subsequently, however, the court in Bennett v. Deutsche Bank National Trust Company granted the bank’s motion for rehearing, and summarily reversed its previous decision. In the subsequent opinion… Continue Reading

Status as a Debtor not Enough to Confer Appellate Standing

Posted in Bankruptcy, Debt and Judgment Collection

“Standing” is a legal term of art that refers to a party’s ability to bring a cause of action, to intercede in one or to appeal the court’s judgment. To prove appellate standing in a bankruptcy proceeding, a party must show that “he was directly and adversely affected pecuniarily by the order of the bankruptcy… Continue Reading

Collecting Deficiency on Wholly-Unsecured Nonrecourse Loan (in Chapter 11)

Posted in Bankruptcy, Debt and Judgment Collection

Some of you who read the title of this post may have done a quick double-take, as it is well established that lenders may not collect a deficiency on a nonrecourse loan under state law. However, the Bankruptcy Code provides some relief to a holder of a wholly unsecured nonrecourse loan when the debtor files… Continue Reading

Detroit Judge Clears Way for Largest Municipal Bankruptcy in Country’s History

Posted in Debt and Judgment Collection

The oral summary of Bankruptcy Judge Steven Rhodes’s opinion lasted roughly ninety minutes, and the forthcoming written opinion is rumored to be over one hundred and forty pages in length. In making his decision the Detroit bankruptcy judge green-lighted the City’s hopeful recovery through Chapter 9 bankruptcy. The court noted that “this once-proud city cannot… Continue Reading