201901.23
0

NEW PRECEDENT ESTABLISHED IN FLORIDA THAT STATUTE OF LIMITATIONS DOES NOT LIMIT DAMAGES IF BANK PROVES CONTINUING STATE OF DEFAULT

Last month the Fifth DCA receded from its two prior opinions wherein it held the statute of limitations prevented a lender from recovering damages in a foreclosure action “for defaults that occurred more than five years prior to the filing date of the lawsuit.” Grant v. Citizens Bank, N.A. In Grant, the borrower (“Grant”) defaulted…

201901.07
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THE FLORIDA SUPREME COURT FINDS BASIS FOR ATTORNEY FEE AWARD IN FAVOR OF MORTGAGOR DESPITE BANK’S OSTENSIBLE LACK OF STANDING

The Florida Supreme Court issued a written opinion on January 4, 2019 which addressed a mortgagor’s entitlement to prevailing party attorney’s fees in the context of an unsuccessful foreclosure action. Glass v. Nationstar Mort. LLC. Nationstar held a reverse mortgage and initiated foreclosure proceedings “due to non-payment of taxes and/or insurance on the property.” After…

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
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 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
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…

201807.09
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FLORIDA COURT REVERSES JUDGMENT QUIETING TITLE AGAINST BANK & FINDS MORTGAGEE HOLDS VALID & FORECLOSABLE LIEN

The Fourth District Court of Appeals recently published an opinion wherein the DCA reversed a circuit court’s summary judgment in favor of an owner (non-mortgagor) based on a quiet title action affecting property situated in St. Lucie County, Florida. Avelo Mortg., Ltd. Liab. Co. v. Vero Ventures, Ltd. Liab. Co.[1] In Vero Ventures, the owner…

201806.08
1

THE “PROTECTING TENANTS AT FORECLOSURE ACT” OF 2009 HAS BEEN RESTORED EFFECTIVE JUNE 24, 2018

On May 24, 2018, President Trump signed a bill into law called the “Economic Growth, Regulatory Relief, and Consumer Protection Act” (hereinafter “Consumer Protection Act”). Public Law No. 115-174 Title III, Consumer Protection Act, § 304. Among other things, the Consumer Protection Act restored “the notification requirements and other protections related to the eviction of…

201805.07
0

JUDGMENT REVERSED BECAUSE WITNESS LACKED FIRSTHAND KNOWLEDGE OF ROUTINE BUSINESS PRACTICE FOR MAILING LETTERS

The Second DCA reversed a bank’s final judgment of foreclosure and remanded the case for an order of involuntary dismissal finding the bank’s evidence was insufficient to prove it satisfied conditions precedent. Spencer v. Ditech Fin., No. 2D16-4817, 2018 Fla. App. LEXIS 4541 (2d DCA Apr. 4, 2018). In Spencer, the bank, EverHome Mortgage Company[i] (“EverHome”…