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Category Archives: Residential Foreclosure

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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

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

ARE JURY TRIAL WAIVER PROVISIONS NECESSARY FOR FORECLOSURES?

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

Mortgage Default Letters: R.I.P. Paragraph Twenty Two…Borrowers Will Miss You

Posted in Residential Foreclosure

In residential foreclosures, a notice of default letter, commonly found in paragraph 22 of most mortgages is a condition precedent to acceleration of the amount owed under the note and mortgage. Those familiar with residential mortgage foreclosures know that the failure to comply with paragraph 22 is a staple in every borrower’s affirmative defenses. Sometimes… 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

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

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

A New Case Interprets First Mortgagee’s Safe Harbor for Past Due Condominium Assessments

Posted in Residential Foreclosure

Florida Statute § 718.116(1)(b) limits a foreclosing first mortgagee’s liability for past due condominium assessments by providing that liability will be the lesser of twelve months of past due assessments or one percent of the original mortgage provided the association is named as a defendant in the lawsuit. Although the term “first mortgagee” is not… 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

The Third District Weighs-in on the Application of the Statute of Limitation Defense to Mortgage Foreclosures

Posted in Residential Foreclosure

Who would have imagined that a dismissal with prejudice would be better for a lender than a dismissal without prejudice? It is counterintuitive to say the least, but when it comes to the application of the statute of limitations defense raised in a subsequent foreclosure action, it seems that lenders (at least in the Third… Continue Reading

Creditors Beware: Married Couples Claiming Homestead Protection on Two Residences May Avoid a Forced Sale

Posted in Residential Foreclosure

Florida’s homestead exemption protects a married couple’s primary residence from forced sale to satisfy a judgment lien, but what happens when spouses retain two properties as their individual primary residences, claiming homestead protection on each?  The answer comes down to whether the spouses are “legitimately” separated, and creditors should take note of a recent decision… Continue Reading

The Business Records Exception to the Hearsay Rule

Posted in Banking Operations, Residential Foreclosure

When a bank assigns a mortgage to another bank, the assignor typically provides a loan payment history to the assignee as part of the transfer. If the assignee later brings suit to foreclose the mortgage, it is typical to seek foreclosure via a Motion for Summary Judgment.  In support of such a motion, we include… Continue Reading

Plaintiff Has the Burden To Prove Its Right to Enforce the Note Even If It Is Not Challenged By the Defendant In Its Pleadings

Posted in Residential Foreclosure

The legal right to enforce, by judicial proceeding, a promissory note and mortgage is referred to as “standing”.  This has been a hot topic in Florida foreclosure cases with courts holding that standing must exist when the suit is filed and, if it does not, the lack of standing is a defect that cannot be… 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

The FDIC’s Administrative Claims Process for Failed Banks

Posted in FDIC Related Issues, Residential Foreclosure, Special Assets Litigation

Enacted by Congress after the Savings and Loan Crisis of the 1980s, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) gives the FDIC sweeping authority to resolve the problems posed by a failed financial institution. This authority includes a mandatory administrative claims process to help the FDIC efficiently identify all claims against the receivership… 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

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

Georgia Non-Judicial Power of Sale Foreclosure – Overview of Procedures

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

Given our geographic proximity, it is not uncommon for Florida banks to do business in Georgia or with clients owning property in Georgia. This geographic proximity, however, does not lend itself to equivalence of foreclosure procedures. This is because, unlike Florida, Georgia recognizes non-judicial foreclosures. Indeed, power of sale foreclosures, as they are called, are… Continue Reading

What is an Allonge?

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

Given the importance of the allonge in establishing a bank’s standing in commercial foreclosure cases, you may be surprised that the term “allonge” is nowhere to be found in Florida’s Commercial Code. In one case, the court describes an allonge as “simply an elegant-sounding legal term for a supplemental attachment to a note in which endorsements… Continue Reading