On May 26, 2022, the Eleventh Circuit issued an opinion reversing the Southern District of Florida’s denial of the appellant’s motion to compel arbitration, therein finding that the district court erred in failing to apply the arbitration agreement’s delegation clause, as agreed to by the parties. The appellate court answered the alliterative tongue-twister of “whether an arbitrator should arbitrate arbitrability” in the affirmative.
In Attix v. Carrington Mortgage Services LLC, –– F.4th ––, 2022 WL 1682237 (11th Cir. May 26, 2022), the plaintiff filed a ...
In an order issued today, Judge Dalton of the Middle District of Florida held that in a non-bankruptcy context, allegations that collection of a mortgage debt is barred by the statute of limitations do not form a "plausible basis" for claims under the Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act, or the Declaratory Judgment Act.
In Garrison v. Caliber Home Loans, Inc., Case No. 6:16-cv-978-Orl-37DCI (Order, Jan. 10, 2017), the plaintiff brought counts under five consumer protection laws, including the FDCPA and FCCPA, as well as for a ...
The Second District Court of Appeal has become the first appellate court in Florida to hold that Florida Statute § 559.715, part of the Florida Consumer Collection Practices Act, Chapter 559, et seq. ("FCCPA"), does not apply to the note holder in a mortgage foreclosure proceeding. Deutsche Bank Nat. Trust Co. v. Hagstrom, 2D14-5254, 2016 WL 3926852, at *1 (Fla. 2d DCA 2016). In many instances, the Hagstrom holding will eviscerate a § 559.715 affirmative defense, which historically has been a popular and often effective defense to foreclosure, due in large part to the lack of case law ...
For years, counsel for borrowers have successfully argued that the bank failed to meet conditions precedent required under Section 559.715 of Florida's Consumer Collection Practices Act ("FCCPA"). Procedurally, this argument has been raised in the borrower's answer to the mortgage foreclosure complaint. Rather than simply alleging it as a well-pled affirmative defense, the borrower generally denies that the lender complied with all conditions precedent required to bring a mortgage foreclosure action. The borrowers' strategy is to then move for summary judgment denying ...