In Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., the Second District Court of Appeal reversed a 2011 final judgment entered in favor of Kipps Colony II Condominium Association, Inc. ("Association"). See Nos. 2D14-858, 2D14-4436, 2015 WL 8321268 (Fla. 2d DCA Dec. 9, 2015). Though Bank of America had been defaulted in the Association's claim of lien foreclosure action, the appellate court found the trial court erred in denying Bank of America's Florida Rule of Civil Procedure 1.540(b) motion. Judge Black delivered the opinion of the court finding that the ...
In Surloff v. Regions Bank, et al., No. 4D14-842, 2015 WL 7275207 (Fla. 4th DCA Nov. 18, 2015), the Fourth District Court of Appeal of Florida was faced with the issue of whether Regions Bank (the "Bank") had any duty or "special relationship" with its client that would subject the Bank to liability for its client's suicide. The issue arose after the trial court granted the Bank's motion to dismiss Plaintiff Cheri Surloff's (as personal representative of the Estate of Arthur B. Surloff) (the "Plaintiff") claims of negligent undertaking and negligent infliction of emotional ...
In Ensler v. Aurora Loan Servs., LLC, the Fourth District Court of Appeal of Florida was faced with the issue of whether a prior mortgage loan servicer's documents could be introduced into evidence when the current servicer testified the prior servicer's records were "accurate" because "[t]hey're a reputable big company and we trust them and they trust us." At trial, Plaintiff sought to introduce the following documents into evidence (through the testimony of the current servicer): the breach letter, payment history, and power of attorney. All of these documents were authored ...
On November 23, 2015, in the first appellate decision of its kind, the District Court for the Southern District of Florida affirmed a bankruptcy court order to compel chapter 7 debtors to surrender real property by directing the debtors to cease all foreclosure defense. The decision in Failla v. Citibank, N.A. (In re Failla), case no. 15-80328, marks the first decision from a federal appellate court to address the question of whether a bankruptcy court may enter an order directing a debtor to cease defending a mortgage foreclosure suit pending in state court. On December 19, 2014, Judge ...
Speaking to a November 16 Money Laundering conference jointly sponsored by the American Banking and Bar Associations, Deputy AG Sally Yates unveiled revisions to the Department of Justice's U.S. Attorneys' Manual ("USAM"). The revisions implement the new focus on individual wrongdoing in the corporate criminal context first announced September 9 in the "Yates Memo." The revisions principally involve (1) the Filip Factors, (2) extend the Yates Memo to civil investigations, and (3) address coordination in parallel proceedings.
In BCML Holding LLC v. Wilmington Trust, N.A., the purchaser of a property at an association foreclosure sale for unpaid assessments contended that the first mortgage was void ab initio because title to the property wasn't acquired until after the first mortgage was signed. The Third District Court of Appeal held the after-acquired title doctrine applies to a non-party to the original mortgage who is a subsequent purchase of the property. On July 11, 2007, Gonzalo and Daniela Malesich ("Malesich") executed a note and purchase money mortgage which conveyed an interest in a ...
On November 4, 2015, the Federal Trade Commission (FTC) and other law enforcement authorities announced the first coordinated federal-state enforcement initiative targeting deceptive and abusive debt collection practices. The national initiative, named Operation Collection Protection, encompasses 30 new enforcement actions by federal, state, and local law enforcement authorities against collectors. The cases announced today bring the total number of actions taken so far this year to 115 by more than 70 law enforcement partners participating in the initiative. As part of ...
In Gensel v. Performant Technologies, Inc., No. 13-C-1196, 2015 WL 6158072, (E.D. Wisc. Oct. 20, 2015), the U.S. District Court for the Eastern District of Wisconsin granted Performant Technologies, Inc.'s ("Performant") motion to continue the stay pending judicial review of the FCC's July 10 Order. Plaintiff filed suit against Performant alleging violations of the TCPA based on several calls she received from Performant on her cell phone. Plaintiff's cell phone provider assigned her a number that was previously assigned a person who defaulted on a student loan. Performant ...
The ownership of the promissory note by a subsidiary corporation of the Plaintiff cannot alone establish standing to foreclose. In HSBC Bank USA, N.A. v. Ryan Kahan, et al., the Court granted the borrowers' motion for involuntary dismissal or directed verdict due to (1) Plaintiff's failure to establish standing at the commencement of the action; and (2) Plaintiff's inability to establish a prima facie case of foreclosure due to its failure to provide any testimony as to Plaintiff's damages. On October 8, 2012, Plaintiff HSBC Bank USA, N.A. ("HSBC Bank") commenced this residential ...
In Danehy v. Time Warner Cable Enterprise LLC, No. 5:14-cv-133, 2015 WL 5534285 (E.D.N.C. Sep. 18, 2015), the United States District Court for the Eastern District of North Carolina adopted the magistrate's findings that a caller's good-faith belief of consent is a complete defense under the Telephone Consumer Protection Act ("TCPA"). The defendant in Danehy, a cable company, had been asked by one of its customers to perform a service visit. The customer had provided a cell phone number to the defendant as one of his contact numbers. Unbeknownst to the defendant, the cell phone ...
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