201909.26
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REQUIREMENTS FOR FORECLOSING A MODIFIED LOAN IN FLORIDA

In 2016 the Fourth DCA reversed a mortgagee’s final judgment of foreclosure and dismissed the case due to the mortgagee’s failure to introduce the written loan modification into evidence at trial. Rattigan v. Central Mortgage Co., 199 So. 3d 966 (Fla. 4th DCA 2016). In Rattigan, the original note “capped the principal amount that could…

201907.31
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FLORIDA COURTS DISAGREE ON LIABILITY FOR CONDOMINIUM ASSESSMENTS

The First DCA rendered an opinion this month wherein it certified conflict with the Third DCA over a condominium unit owner’s liability for association assessments and liens pursuant to § 718.116(1)(a), Fla. Stat., which pertains to a. Coastal Creek Condo. Ass’n, Inc. v. Fla Tr. Services LLC, 1D18-1457, 2019 WL 3114229, at *1 (Fla. 1st…

201906.20
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US SUPREME COURT FINDS BANK NOT SUBJECT TO CIVIL CONTEMPT IF THERE IS A “FAIR GROUND OF DOUBT” AS TO WHETHER BANK’S CONDUCT WAS LAWFUL UNDER BANKRUPTCY DISCHARGE ORDER

On June 3, 2019, the United States Supreme Court (“USSC”) granted certiorari relief and weighed in on “the criteria for determining when a court may hold a creditor in civil contempt for attempting to collect a debt that a discharge order has immunized from collection.” Taggart v. Lorenzen. Taggart involved a debtor, Bradley Taggart, and…

201906.20
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COURT ORDERS NEW TRIAL FINDING PARTIAL PAYMENT HISTORY ESTABLISHED PRIMA FACIE CASE ON FORECLOSURE DAMAGES

This month the Fourth DCA reversed the trial court’s order of dismissal of a foreclosure initiated by Deutsche Bank, as Trustee of a mortgage backed trust, (“the Bank”) finding the Bank’s failure to “enter into evidence the entire payment history…” did not constitute a basis for dismissal contrary to the trial court’s holding. Deutsche Bank…

201905.22
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DCA HOLDS BANK, NOT BORROWER, ENTITLED TO DESIGNATE ITS CORPORATE REPRESENTATIVE FOR PURPOSE OF DEPOSITION

Last week the Fifth DCA granted certiorari relief to US Bank quashing (essentially reversing) a circuit court’s order compelling the bank to produce a specific person for an out-of-state deposition in a residential foreclosure action. U.S. Bank Nat’l Ass’n as Tr. for Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Arm Tr., Mortgage…

201905.22
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DCA FINDS BANK SATISFIED CONDITIONS PRECEDENT AND CLARIFIES BANK IS NOT OBLIGATED TO PROVIDE MULTIPLE DEMAND NOTICES

The Fourth DCA reversed an involuntary dismissal of a Pinellas County, Florida mortgage foreclosure action finding the bank did in fact satisfy conditions precedent contrary to the trial court’s finding otherwise. HSBC Bank USA, N.A. as Tr. for Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-3 v. Leone. In Leone, the bank first…

201904.23
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UPDATE: FLORIDA SUPREME COURT ABANDONS PRIOR OPINION IN GLASS V. NATIONSTAR NULLIFYING ATTORNEY FEE AWARD TO BORROWER

In January we discussed in detail the Florida Supreme Court’s opinion in Glass v. Nationstar Mortgage, LLC. In that case, the Court reviewed the Fourth DCA’s decision to deny prevailing party attorneys’ fees to a borrower who obtained dismissal of a foreclosure action based on a successful lack of standing argument. The Fourth DCA concluded…

201904.23
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COURT RULING PROVIDES COSTLY LESSON ON BEST PRACTICES FOR LENDERS TO BRIDGE THE GAP BETWEEN DEFAULT AND SETTLEMENT

Last month the United States Court of Appeals for the Eleventh Circuit issued a sixty-page opinion which addressed claims brought by borrowers, Johnnie and Adrian Marchisio (“the Borrowers”), against Servicer Mortgage Services, LLC (“Servicer”) for various statutory and contractual violations committed by Servicer while servicing the Marchisio’s first and second mortgages. Marchisio v. Servicer Mortgage…