201708.08
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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….

201706.02
1

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….

201706.02
2

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…

201705.02
1

BANK STATEMENT DISCLAIMERS REGARDING BANKRUPTCY SUFFICIENT TO AVOID VIOLATION OF FDCPA & FCCPA

In an unpublished opinion, the Southern District Court of Florida recently affirmed the dismissal of several claims brought by a borrower, Gayle Helman (“Helman”) against her bank, Bank of America, N.A. (“BANA” or “the Bank”) Helman v. Bank of America, 2017 WL 1350278  (SD Fla April 12, 2017). Helman alleged the Bank wrongfully pursued collection…

201704.03
1

FLORIDA COURTS SIMPLIFY FORECLOSURE OF NON-BORROWER’S INTEREST

The Second District Court of Appeals (“Second DCA”) recently issued an interesting opinion about the limited rights of a non-borrower in a foreclosure case. The case is Pealer v. Wilminton Trust Nat’l Ass’n,[i]. In Pealer, third-party purchasers, Bonnie and William Pealer (“the Pealers”), acquired title to the subject property at a homeowner’s association (“HOA”) foreclosure…

201703.03
1

THE LIS PENDENS “EFFECT” IN THE CONTEXT OF A FORECLOSURE

The Fourth DCA recently reversed itself on rehearing in the matter of Ober v. Town of Lauderdale-By-The-Sea in a decision that favorably impacts the foreclosure industry. Ober, 2017 Fla. App. LEXIS 789 (Fla. 4th DCA Jan. 25, 2017). In Ober, the Court interpreted and applied Fla. Stat. § 48.23, commonly referred to as the lis…