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….


The United States Supreme Court Finds Bankruptcy Claims Filed by Debt Collector on Stale Debt Do Not Violate the Fair Debt Collection Practices Act

The Supreme Court recently overturned a decision by the United States Court of Appeals for the Eleventh Circuit finding a debt collector can file a claim in a bankruptcy proceeding even though, due to the age of the debt and the relevant statute of limitations, the debt is no longer collectible (“stale”). Midland Funding v….


Fifth DCA Calculates Five-Year Statute of Limitations Period for Foreclosure Actions from Default Date, Not Acceleration Date

The Fifth District Court of Appeals recently affirmed a lower court’s dismissal, with prejudice, of a foreclosure action finding the bank filed the action outside the five-year statute of limitation period established by § 95.11(2)(c) of the Florida Statutes. Ventures Trust 2013-I-NH v. Johnson, No. 5D16-1020, 2017 Fla. App. LEXIS 7176 (Fla 5th DCA May…