RECENT FORECLOSURE DEFENSE TREND – – CLAIMING THE BOARDING PROCESS IS A LEGAL FICTION – – HAS LED TO CRIMINAL CONTEMPT CHARGES Recently, several Florida circuit courts have addressed the onboarding procedures of mortgage loan servicers[i]. Courts are more closely scrutinizing a servicer’s boarding procedures to determine whether documentary evidence created by a prior servicer,…


Florida Safe Harbor Provision Limits Association Assessments Due From Subsequent Non-Mortgage Holder Purchaser

The Fourth District Court of Appeals (“Fourth DCA”) recently affirmed the lower Court’s holding which extended the safe harbor protection provided under the Florida Homeowners Association statute[i], to a non-mortgagee/non-mortgage holder. [ii] The Homeowners Association statute addresses property assessments imposed by Florida homeowners’ associations. Under the pertinent provisions of this statute, if the associations’ governing…


Trial Payment Plan is not an Enforceable Contract

TRIAL PAYMENT PLAN IS NOT AN ENFORCEABLE CONTRACT WHERE LENDER PROVIDED ADEQUATE BASIS FOR DENIAL OF PERMANENT LOAN MODIFICATION UNDER 12 C.F.R. § 1024.41(d) The Middle District of the United States District Court recently rendered an order in an action filed by two mortgagors (the O’Steens) against Wells Fargo Bank (“Wells Fargo” or “the bank”)…


No Cramdown of Multi-Use Property

SHD recently obtained a court ruling which clarifies bankruptcy cramdown. The bankruptcy court for the Southern District of Florida (“the Court”) issued an opinion[i] wherein it held a chapter 11 bankruptcy plan could not modify a mortgagee’s lien on a debtor’s principal residence under the cramdown provisions of the bankruptcy code. In re: John R….


Florida Statute of Limitations Does Not Bar Foreclosure Based on a Default Occurring More Than Five Years Before Complaint Filed

In two recent decisions, the Florida Fifth District Court of Appeals (“Fifth DCA”) clarified its position regarding the circumstances under which the statute of limitations will not bar a foreclosure action despite a default date greater than five years from filing the complaint.  Ventures Tr. 2013-I-NH v. Johnson, (5th DCA June 30, 2017); Klebanoff v….