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Decision Underscores Need for Specificity when Drafting Releases

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By:  Edward L. Kelly and Karl R. Gruss Many settlement agreements contain mutual releases by the parties of claims against each other.  For institutional lenders, workouts of defaulted loans often result in the execution of such agreements by the parties.  When drafting any release language, lenders would be wise to include language restricting the effect… Continue Reading

Replevin: A Remedy for Creditors

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The Right of Replevin and What May Be Taken Tracing its roots back to the common law, replevin is not a novel concept. While the cause of action is simple—allowing for the recovery of personal property that is wrongfully detained—replevin can be confusing for some creditors. This article is a brief glance at the nuances… Continue Reading

Foreclosing First Mortgagees Not Liable for Additional Fees and Costs Incurred by HOA

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As we have previously discussed , although section 720.3085(2)(b), Florida Statutes, generally makes a subsequent owner of real property liable for all unpaid homeowners’ association assessments that came due under the previous owner, first mortgagees who acquire title through foreclosure may take advantage of a “safe harbor” under section 720.3085(2)(c), Florida Statutes, which limits the… Continue Reading

Fourth DCA Reaffirms that a Mortgagee Must Only Substantially Comply With Conditions Precedent to Foreclosure

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Often times, mortgages contain certain “conditions precedent” to foreclosure that require mortgagees to take certain acts before they may commence an action to foreclose on their collateral. The simplest example of a mortgagee’s condition precedent is a requirement that a mortgagee send a notice of default and right to cure before filing a foreclosure action…. Continue Reading

Urban Land Institute Report Answers: What Markets are Poised for Growth in 2016?

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With the real estate markets in large cities such as San Francisco, Washington, D.C. and New York City saturated with domestic and foreign capital, driving market prices beyond the reach of many developers and lenders, investors naturally look for alternative markets that offer lower capital thresholds to entry but project strong future returns. The question… Continue Reading

Fourth District: Non-Consumers May Sue Under FDUTPA

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Florida’s Fourth District Court of Appeals has paved the way for individuals and businesses to bring claims for violations under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). FDUTPA is the primary consumer protection statute in Florida. Laid out in Section 501.201 et seq., Florida Statutes, FDUTPA prohibits unfair, unconscionable, or deceptive methods of… Continue Reading

Depositions: “Invoking the Rule” To Exclude Persons From Attending Depositions

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Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony of other witnesses.  Although witness sequestration during trial is routine, Florida law is less clear on whether attorneys can utilize this procedure during a… Continue Reading

CMBS – Risky Business?

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Commercial Mortgage-Backed Securities (CMBS) loans are on the rise and many familiar with the market are concerned with the relaxed underwriting standards.  Interestingly, looser underwriting standards and increased loan volume are not the only issues.  Lenders are also encountering statutory and legislative developments that may limit recourse remedies in these loans and  the combination of… Continue Reading

Equitable Subrogation: Protecting Lien Position in a Foreclosure Action

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The doctrine of subrogation enables a party discharging another’s debt to step into the shoes of the creditor who held the discharged debt.  Subrogation plays a significant role in the mortgage context, as the concept acts as an exception to a state’s recording statute, enabling one creditor to replace another creditor and obtain the latter’s… Continue Reading

Foreclosing Lender Forced to File a Separate Action on Association Assessments

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Foreclosing mortgagees often wait until after a foreclosure judgment and certificate of title are issued to determine the extent of liability to a homeowners or condominium association for past due assessments.  But what if there is a dispute as to the amounts owed to the association after the mortgagee takes title to the property?  Can… Continue Reading

Social Media and Spoliation

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As we discussed in our previous post regarding the Christou case, social media is discoverable – and consequently subject to a litigation hold.  From an evidentiary standpoint, social media is not without its shortcomings, and it is important to understand that social media is vulnerable to irretrievable loss, through the acts of the account holder… Continue Reading

Eleventh Circuit Doubles Down on Lien Stripping

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When the Fourth Circuit handed down its opinion in the case of In re Davis,[1] which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand debtor’s ability to escape from underwater junior mortgages.  Before the June 18th opinion in In re Scantling,[2] bankruptcy courts within the Eleventh… 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

The Spoliation of Text Messages

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In the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course of litigation. As with any other Electronically Stored Information (“ESI”), text messages are subject to a litigation hold, and, as a consequence, if… Continue Reading

Gross Negligence Enough for Adverse Inference Instruction

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In 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued five landmark decisions, which have since shaped the landscape of electronic discovery and document preservation. In her Zublake decisions, Judge Scheindlin held that potential litigants have an affirmative duty that requires a party anticipating litigation to refrain… Continue Reading

“Saving Everything” No Defense to Spoliation Argument

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As we discussed in our previous spoliation post, parties are required to place a litigation hold on all documents once litigation could be reasonably anticipated. Although there are certain definite “trigger events”, such as the receipt of a demand letter or the filing of a civil complaint, many courts have looked beyond these definite events… Continue Reading

Litigation Hold Extends to Third Party Independent Agents

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Insurance and financial institutions understand the importance of data preservation, but from time to time – usually in the throes of complex litigation – the specific requirements of federal and state data preservation laws need to be examined more closely. As the new year begins, we take a look back at the major data preservation… Continue Reading

Florida Bans Texting While Driving

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You may be wondering why an article about the new Florida statute banning texting while driving is being featured on a banking law blog. Admittedly, texting does not have much to do with banking, but the new law should be of interest to anyone who has ever felt the temptation to type a quick text… Continue Reading

Welcome to the Florida Banking Law Blog!

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Rogers Towers, P.A. welcomes you to its Florida Banking Law Blog! A product of the firm’s Banking and Financial Services Practice Group, the blog will serve as a convenient way for us to share our expertise in banking-related legal issues. We represent banks and other providers of financial services in a broad range of matters throughout… Continue Reading