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Category Archives: Legal Rulings

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Third District Court of Appeal Withdraws Decision Applying the Statute of Limitations to Mortgage Foreclosures

Posted in Legal Rulings, Special Assets Litigation

Florida’s Third District Court of Appeal (DCA), sitting en banc, recently withdrew an unpopular decision applying the statute of limitations defense to mortgage foreclosures. As previously discussed on this blog, the Third DCA’s prior opinion in Deutsche Bank Trust Co. Am. v. Beauvais took the unique position that the dismissal of a foreclosure action without… Continue Reading


Posted in Banking Operations, Legal Rulings

The Truth in Lending Act (“TILA”) requires lenders to make certain disclosures to borrowers about the terms of residential mortgages. For example, TILA requires a lender to provide a payoff balance to a borrower within seven business days of a written request. See 15 U.S.C. § 1639g. An original “creditor” who fails to comply with… Continue Reading

Fourth DCA Rules an Allonge Does Not Need to be Physically Attached to a Promissory Note

Posted in Foreclosure, Legal Rulings, Special Assets Litigation

To establish standing to enforce a promissory note, a lender must prove that it is the rightful holder of the negotiable instrument. Typically, this entails producing the original note together with all allonges endorsing the note to subsequent holders. Under Florida’s Uniform Commercial Code (“UCC”), an allonge must be “affixed” to the note such that… Continue Reading

Do you know where your debtor’s original promissory note is located?

Posted in Banking Operations, Legal Rulings

In August 2013, we discussed the requirements for enforcing a lost promissory note. The same year, the Florida legislature passed Section 702.015, Florida Statutes, requiring that the holder of a promissory note file an affidavit or certification regarding the location of the note at the time it files a complaint. Importantly, section 702.015 requires that… Continue Reading

When Homestead Is at Issue, Even Ethically Questionable Conduct Receives Protection

Posted in Legal Rulings

An equitable lien may provide a Florida creditor relief in scenarios where Florida’s broad homestead protections would otherwise bar the forced sale of homestead property. But a string of cases following the 1993 decision of the Florida Supreme Court in the case of Palm Beach Savings & Loan Association v. Fishbein presents a misleading picture… Continue Reading

Can a Borrower Extinguish My Junior Lien By Purchasing and Foreclosing a Senior Lien?

Posted in Legal Rulings

Through the economic turmoil of the late 2000s, borrowers came up with creative (and at times, inequitable) ways to protect their investments. One such method—the borrower’s indirectly purchasing and foreclosing a senior lien to rid the investment of junior liens—was recently rejected by Florida’s Third District Court of Appeal. In CDC Builders v. Biltmore-Sevilla Debt… Continue Reading

What’s the Statute of Limitations in Florida for a Securities Claim subject to an Arbitration Provision?

Posted in Legal Rulings

Securities claims subject to arbitration proceedings are subject to the same statute of limitations as any other judicial action. In holding that section 95.011, Florida Statutes, applies to arbitration proceedings, the Florida Supreme Court effectively cut the time investors have to file a claim by up to two-thirds. Using statutory interpretation, the Florida Supreme Court… Continue Reading

Deficiency Actions Require Consumer Debt Protections

Posted in Legal Rulings

Deficiency actions arising under a mortgage note secured by Florida real estate used for personal, family or household purposes are subject to many of the same consumer protection regulations as other consumer debt. Last April, in an unrecorded case, Baggett v. Law Offices of Consuegra, P.L. No.3:14-cv-1014-J-32PDB 2015 WL 1707479 (M.D. Fla. April 15, 2015),… Continue Reading

FDUTPA Exemptions Do Not Extend to Bank Subsidiaries

Posted in Legal Rulings

FDUTPA is the primary consumer protection statute in Florida, prohibiting unfair, unconscionable, or deceptive methods of competition, practices, or acts in the conduct of commerce. According to the express terms of the statute, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) does not apply to banks or savings and loan associations regulated by federal… Continue Reading

Supreme Court: Fair Housing Act Discrimination Claims Do Not Require Proof of Intent

Posted in Legal Rulings, Residential Real Estate Lending

Parties claiming a violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., need not prove intentional discrimination to prevail, according to a recent ruling handed down by the United States Supreme Court. So long as a claimant can show that a practice or policy results in a disproportionately negative effect on… Continue Reading

Bert Harris Act – Amendment to Law Clarifies Availability of Relief

Posted in Legal Rulings

When a State or local government law, regulation or ordinance in Florida decreases the value of the land at which it is directed, the affected landowner can invoke the Bert J. Harris, Jr., Private Property Rights Protection Act (the “Bert Harris Act”), § 70.001, Florida Statutes, to obtain compensation for the actual loss to the… Continue Reading