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Category Archives: Residential Real Estate Lending

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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

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

Recent Cases Support Foreclosing Lenders against Challenges to Standing

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

The Florida Second District Court of Appeals recently ruled on yet another challenge to a note holder’s standing to foreclose based on lack of ownership of the mortgage.  In OneWest Bank, F.S.B. v. Bauer (May 30, 2014), the Florida Second District Court of Appeals held that the holder of a note had standing to foreclose,… 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

New Ruling Permits Lenders to Require Flood Insurance Coverage in Excess of Loan Amount

Posted in Commercial Real Estate Lending, Residential Real Estate Lending

Recent events have been highlighted in the press, regarding the redrawing of federal flood hazard maps and proposed increases in premium rates for flood insurance for property owners within special flood hazard zones, which may have a significant impact on the cost of home ownership in Florida and other states which are subject to coastal… 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

Enforcing a Lost Promissory Note

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Dischargeability of Debts, Loan Sales and Syndications, Residential Foreclosure, Residential Real Estate Lending, Special Assets Litigation

In Florida, it is well established that the original promissory note must be surrendered to the court as a condition of its enforcement. What do you do when you cannot find the original promissory note? Florida Statutes 673.3091 sets out a procedure to follow in order to  “reestablish” a lost note and provides that a… Continue Reading

The Perils of Post-Judgment Pre-Sale Modifications

Posted in Banking Operations, Commercial Lending, Commercial Real Estate Lending, Debt and Judgment Collection, Loan Workouts, Residential Foreclosure, Residential Real Estate Lending, Special Assets Litigation

A reasonable workout often remains the prudent choice for defaulted commercial real estate loans even in the context of a pending (or nearly completed) foreclosure action. Thus, it is not surprising that we have seen a number of foreclosure cases where the bank and debtor entered into a modification agreement after obtaining a foreclosure judgment… Continue Reading

Documentary Stamp Tax on Renewal Loans – A Review of the Basics

Posted in Banking Operations, Commercial Real Estate Lending, Residential Real Estate Lending, State Tax Issues

With property values slowly increasing and borrowers beginning to see the light at the end of a long recession, the demand for renewal loans is slowly building. To that end, let’s briefly review a few of the key rules concerning documentary stamp taxes as they apply to renewal loans. Generally, in Florida, a written promise… Continue Reading

Transfers of Real Property for Estate Planning and Other Purposes and Their Effect on the Mortgage Lender

Posted in Commercial Real Estate Lending, Residential Real Estate Lending

I receive frequent inquiries from bank clients who are concerned because their mortgage borrower has requested permission to transfer the collateral real property to another entity. These requests commonly are made for estate planning purposes (though other reasons are often cited) and may involve transferring the property to other entities such as a trust. The… Continue Reading

Residential Lending and the Ability to Repay Rule

Posted in Residential Real Estate Lending

On January 10, 2013 the Consumer Financial Protection Bureau issued a rule imposing new requirements on residential mortgage lenders. The “Ability-to-Repay” rule was created to help implement certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act in an effort to enhance the reliability of residential mortgages by ensuring that underwriting standards address… Continue Reading

Documentary Stamp Tax: a Quick Review of the Basics

Posted in Commercial Lending, Commercial Real Estate Lending, Residential Real Estate Lending, State Tax Issues

Happy new year to our blog readers! In 2013, we are all hoping for an improved economy and, with it, an increase in the volume of commercial and consumer loans. Remember that Florida has certain transactional taxes for which lenders are the responsible collecting parties including documentary stamp taxes. In case you are new to… Continue Reading