201810.30
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STATUTE OF LIMITATIONS | Key Points

In Pedersen, the Eleventh Circuit of the United States Court of Appeals recognized and enforced the following Florida precedents regarding the applicability of the statute of limitations to foreclosure actions: (1) In Florida, acceleration of the loan, which triggers the running of the statute of limitations, is marked by the filing of the foreclosure complaint;…

201810.30
0

BANKRUPTCY COURT DISMISSES CHAPTER 13 | Key Points

Last week the Bankruptcy Court for the Middle District of Florida dismissed a Chapter 13 bankruptcy proceeding brought by a debtor (“Johnson”) in an effort to “repay his mortgage debt.” In re Johnson, Case No.: 3:18-bk-659-JAF (Fla. Mid. Dist. October 1, 2018). Johnson had previously received a discharge of his debt in a Chapter 7…

201810.30
0

BANKRUPTCY COURT DISMISSES CHAPTER 13 CASE BASED ON DEBTOR’S PRIOR SURRENDER OF PROPERTY IN CHAPTER 7 CASE

The Bankruptcy Court for the Middle District of Florida dismissed a Chapter 13 bankruptcy proceeding brought by a debtor (“Johnson”) in an effort to “repay his mortgage debt.” In re Johnson. In Johnson, the Debtor and his wife defaulted on their mortgage and Charles Schwab Bank (“Schwab”) initiated foreclosure proceedings. Thereafter, the Johnsons petitioned for…

201809.14
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FLORIDA COURTS SHIFT ON STATUTE OF LIMITATIONS | Key Points

In Gonzalez v. Federal National Mortgage Association, the Third DCA affirmed a final judgment of foreclosure in favor of FNMA and refused to apply the five-year statute of limitations to limit the judgment amount. The Court’s refusal to reduce the judgment amount to those amounts due within the five-year limitations period was in direct conflict…

201809.14
1

FLORIDA COURTS SHIFT ON STATUTE OF LIMITATIONS LENDERS ARE NOT REQUIRED TO REDUCE “SUMS DUE UNDER THE NOTE”

The Third DCA affirmed a Fannie Mae foreclosure judgment and issued a written opinion for the limited purpose of discussing[i] the borrowers’ statute of limitations defense. Gonzalez v. Federal National Mortgage Association. In Gonzalez, the borrowers defaulted by failing to make their June 2007 mortgage payment. The bank sent the required demand notice and initiated…

201808.07
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FLORIDA DCA FURTHER CLARIFIES BANK’S EVIDENTIARY | KEY POINTS

On July 13, 2018, the Second DCA issued its second opinion in less than three months addressing the evidentiary requirements a bank must meet to prove compliance with the notice provisions of the mortgage, a condition precedent to foreclosing. Soule v. U.S. Bank National Association, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through…

201808.07
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FLORIDA DCA FURTHER CLARIFIES BANK’S EVIDENTIARY BURDEN FOR PROVING SATISFACTION OF CONDITIONS PRECEDENT

The Second DCA recently granted rehearing on appeal so it could re-evaluate the evidentiary requirements a bank must meet to prove compliance with the notice provisions of the mortgage. Soule v. U.S. Bank National Association, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1. Initially, in Soule, the Second DCA affirmed…

201808.07
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FLORIDA BANKRUPTCY COURT DENIES CONFIRMATION FINDING | KEY POINTS

The Southern District of Florida (Federal Bankruptcy Court) issued a memorandum opinion addressing two debtors’ proposed chapter 13 plans, both of which included a balloon payment to their respective mortgagees in the final month of the plan. In re: Dora Benedicto, Case No. 15-28671-BKC-RAM, In re: Claudia Del Carmen Gonzalez, Case No. 14-20339-BKC-LMI. The Court…

201808.07
0

FLORIDA BANKRUPTCY COURT DENIES CONFIRMATION FINDING NON-CONSENSUAL BALLOON PAYMENT IN PLAN VIOLATED THE “EQUAL MONTHLY PAYMENTS” REQUIREMENT OF THE BANKRUPTCY CODE

The Southern District of Florida (Federal Bankruptcy Court) issued a memorandum opinion addressing two debtors’ proposed chapter 13 plans, both of which included a balloon payment to their respective mortgagees in the final month of the plan. In re: Dora Benedicto, and In re: Claudia Del Carmen Gonzalez. The Court, limiting its opinion to an…