201911.19
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UPDATE RE: BANKRUPTCY SURRENDER – DEBTOR’S SURRENDER IN BANKRUPTCY MOOTED APPEAL OF FORECLOSURE JUDGMENT

Earlier this month the Second DCA dismissed an appeal of a final summary judgment of foreclosure based on the statement of intentions the debtor/mortgagor (“Lewis”) filed in his chapter 7 bankruptcy proceedings. Lewis v. Innova Inv. Group, LLC. In Lewis the mortgagor appealed the bank’s final judgment of foreclosure and then the day before the…

201910.24
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MORTGAGE STATEMENT WITH CLEAR DISCLAIMER SENT AFTER MORTGAGE DEBT DISCHARGED IN BANKRUPTCY DID NOT VIOLATE § 524 OF THE BANKRUPTCY CODE

The Eleventh Circuit recently affirmed the bankruptcy court’s denial of a sanction motion filed by debtor/mortgagor, Arlene Roth (“Roth” or “the Debtor”), against her mortgage company, Nationstar Mortgage, LLC (“Nationstar”). In re Roth. In her sanction motion Roth asserted Nationstar violated 11 U.S.C. § 524 by sending her monthly mortgage statements after a bankruptcy court…

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…