Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.
In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...
On November 18, 2016, the United States District Court for the Middle District of Florida held that the communication of an unequivocal and non-coercive settlement offer does not violate the Fair Debt Collection Practices Act (the "FDCPA"). Vazquez v. Prof'l Bureau of Collections of Maryland, Inc., -- F. Supp. 3d --, 2016 WL 6822480, at *2 (M.D. Fla. Nov. 18, 2016). In Vazquez, the plaintiff alleged that a debt collector violated section 1692c(c) of the FDCPA by sending a communication offering to settle a debt (the "Settlement Offer") after the plaintiff disputed the debt. Id. at *1 ...
Florida's 4th District Court of Appeal sent the real property and mortgage world into a frenzy this week after issuing its opinion in Ober v. Town of Lauderdale-By-The-Sea, dramatically weakening the protections of Florida's lis pendens statute. It held that a lien placed on a property after the foreclosure judgment which arises from an action occurring post-judgment, is not extinguished by Florida Statute §48.23. The term most commonly used in emails and articles drafted by attorneys to describe the impact of this decision on the lis pendens statute is "eviscerate". This type of ...
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 ...
The Fourth District Court of Appeal recently affirmed its prior decision in Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274 (4th DCA 2013). Wells Fargo Bank, N.A. v. Hilary A. Williamson, Case No. 4D15-285, 2016 WL 3745477 (Fla. 4th DCA 2016). It concluded, once again, that a borrower is in the best position to know their own financial information. Therefore, if a borrower executes their loan application including false information, that borrower is precluded from raising fraud as an affirmative defense in a subsequent action absent unique circumstances. See Shahar v. Green ...
In a recent opinion, the Second District Court of Appeal explained its approval of agency relationship to establish that a plaintiff is entitled to foreclose as "holder" of the original note under Florida Statute Section 673.3011(1). Phan v. Deutsche Bank Nat'l Trust Co., Case No. 2D14-3364, 2016 WL 746400 (Fla. 2d DCA Feb. 26, 2016). Recounting the relevant facts of this case, Deutsche Bank initiated a foreclosure action against Ms. Ngoc Phan on April 28, 2009, alleging she failed to make the loan payments on her Pinellas County home since January 1, 2009. Ms. Phan denied the Bank's ...
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 ...
In the case of Sill v. JPMorgan Chase Bank National Association, Michael Sill appealed a final judgment of foreclosure entered in favor of JPMorgan Chase Bank ("Chase"), in which he asserted three issues. 4D14-1014, 2016 WL 67256 (Fla. 4th DCA Jan. 6, 2016). Of note, is Mr. Sill's third contention arguing that Chase was required to send a new notice of default after it voluntarily dismissed the first suit and before it filed the second suit. The Fourth DCA affirmed on all issues, but it wrote an opinion to address the sole issue of whether a new notice of default was required to be sent by ...
In Deutsche Bank Nat'l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida's Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on the ground that Plaintiff failed to specifically name its corporate representative that would testify at trial. Burr & Forman LLP attorneys Brendan A. Sweeney, Esq. and Douglas J. Stamm, Esq. represented Plaintiff/Appellant Deutsche Bank National Trust Company on behalf of LSF MRA Pass-Through Trust ("Deutsche Bank") at the trial and appellate level. On ...
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 ...
On July 29, 2015, Florida's Second District Court of Appeal held that substantial compliance, rather than strict compliance, is the legal standard for evaluating a foreclosing plaintiff's compliance with contractual conditions precedent to acceleration of mortgage debt (and in particular, the conditions identified in paragraph 22 of most standard residential first mortgages). Green Tree Servicing, Inc. v. Milam, 2015 WL 4549200, at 4-5, 2015 Fla. App. LEXIS 11324, at 9-11. The Milam decision built upon and clarified prior case law from Florida's Second and Fifth DCAs that ...
In Palm-Aire Vill. Private Homes Townhouse Park Bd., Inc. v. Epstein, No. COSO14-011561 (Fla. Cir. Ct. May 18, 2015), the Court was faced with the issue of whether the Homeowner successfully exercised his right of redemption pursuant to Fla. Stat. § 45.0315 even though a third-party purchaser at a foreclosure auction had tendered funds just before the Defendant did so. In this case, the property was sold at foreclosure auction on March 27, 2015 to a third-party purchaser. Three days later, the third-party purchaser tendered funds to the Clerk of Court at 9:39 a.m., but the Clerk refused ...
In David L. Ham, Jr. v. Nationstar Mortgage, LLC, 1D14-4024 (Fla. 1st DCA May 12, 2015), the First District Court of Appeals ("First DCA") reversed the trial court's Final Judgment of Foreclosure in favor of Nationstar for failing to furnish competent and substantial evidence overcoming Borrower's standing defense, and that the original Plaintiff possessed the original note, indorsed in blank, at the inception of the lawsuit. Here, 123 Loan, LLC ("123 Loan") originated the subject loan in 2004, and allegedly assigned the note to Aurora Loan Services, LLC ("Aurora") at some unknown ...
In Deutsche Bank Nat'l Trust Co. v. Adriana Avila-Gonzalez, 2015 WL 2089094 (Fla. 3d DCA May 6, 2015), the Florida Third District Court of Appeal reversed a trial court order that dismissed a foreclosure action with prejudice and cancelled the note and mortgage. Central to the Court's ruling was the determination that the Bank was negligent in asserting the note was lost, by pleadings and by affidavit, when the note was actually in the servicing agent's possession for the duration of the foreclosure action. Contrary to the trial court's ruling, the Court found the Bank's negligence did ...
In Russell v. Aurora Loan Services, LLC, 40 Fla. L. Weekly D967a (Fla. 2d DCA Apr. 24, 2015), Florida's Second District Court of Appeal added to the emerging line of case law regarding the proof required to establish standing in mortgage foreclosure actions. There, the Second DCA held that substituted party-plaintiff, Nationstar Mortgage, LLC, failed to establish at trial that either Nationstar or the original plaintiff, Aurora Loan Services, LLC, had standing as the servicer acting on behalf of the real party in interest to foreclose against borrower William Russell. As a result ...
In Colson v. State Farm Bank, F.S.B., Case No. 2D13-5526, Florida's Second District Court of Appeals just reversed a final judgment of foreclosure entered in favor of the plaintiff, finding that a "total lack of evidence as to damages" required reversal and remand for further proceedings. In February 2009, State Farm as the plaintiff initiated a mortgage foreclosure action against the Colsons. Through its sole witness, an employee of its servicer, State Farm introduced the following into evidence at the November 2013 trial: a power of attorney between State Farm and the servicer, a ...
Imagine your company or client was sued for an alleged violation of the Florida Consumer Collections Practices Act ("FCCPA"). The plaintiff has an outstanding debt that is greater than the damages sought in the FCCPA action. Consequently, you want to know if you can counterclaim to setoff (or "offset") the damages sought in the FCCPA lawsuit from the underlying debt. Though the Eleventh Circuit does not provide steadfast answers, it sheds some light on the topic, albeit in a bankruptcy context. In Brook v. Chase Bank USA, N.A., 566 F. App'x 787 (11th Cir. 2014), the Eleventh Circuit ...
Florida's Third District Court of Appeal issued an opinion[1] today that provides further guidance in determining the date of accrual of a cause of action in a subsequent mortgage foreclosure action and addresses the nature of contractual conditions precedent to acceleration of debt. In the case of Richard Hubert Snow, et al. vs. Wells Fargo Bank, N.A., as trustee, 3D14-1547, the court affirmed the final judgment of foreclosure and rejected appellants' argument that the action was barred by the statute of limitations. Burr & Forman LLP was appellate counsel for the appellee, Wells ...
In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...
In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...
Burr & Forman LLP recently secured an important holding on an issue of first impression regarding the running of the statute of limitations in the FDCPA and FCCPA context. More specifically, in Gregory Crossman v. Asset Acceptance, LLC, 5:14-cv-00115-WTH-PRL, Judge Hodges, sitting in a Middle District of Florida trial court, held that inaction cannot form the basis of a continuing violations theory under the FDCPA or FCCPA, the delayed discovery doctrine does not apply to same, and the recording of a satisfaction of judgment, albeit untimely, renders a § 701.04, Florida Statutes ...
Chief Judge Karen S. Jennemann of the United States Bankruptcy Court for the Middle District of Florida, Orlando Division recently held in a soon-to-be published opinion that chapter 7 debtors who state an intention to surrender real property to the mortgagee must perform on that intention by not impeding or interfering with the state court foreclosure process. In the case, In re Plummer, - B.R. -, 2014 WL 1248039 (Bankr. M.D. Fla. March 25, 2014), the Bankruptcy Court also held that, while the statute is not a mere notice provision, surrender does not require a debtor to take any ...
In Hunter v. Aurora Loan Services, LLC, Case No. 1D12-6071 (Fla. 1st DCA March 4, 2014), the First District Court of Appeals found that a lender must lay the necessary foundation under the business records exception to admit documentation from a prior servicer into evidence. Florida Statutes, § 90.803(6) states that the party seeking admission of hearsay under the business records exception must establish four things. First, that the record was made at or near the time of the event; second, that the record was made by or from information transmitted by a person with knowledge; third ...
In Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-CV-1459-ORL, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013), a class action brought under the Telephone Consumer Protection Act ("TCPA"), the Middle District of Florida held that the plaintiff failed to state a claim because he had admittedly provided his cell phone number to the defendants, an act constituting "express consent" to be autodialed. The plaintiff in Murphy alleged that he had provided his cell phone number to the defendants, three affiliated companies involved in the collection and distribution of blood plasma, in ...
In Shadrach Lewis v. Marinosci Law Group, P.C., No. 13-61676-CIV, 2013 WL 5789183 (S.D. Fla. Oct. 29, 2013), the Southern District of Florida denied a defendant's motion to dismiss and rendered an important decision regarding a notice provision contained in a foreclosure proceeding as being a potential violation of the Fair Debt Collection Practices Act ("FDCPA"). Specifically, the plaintiff alleged that the notice provision, as required by the FDCPA, was nevertheless a violation of 15 U.S.C. § 1692e generally as well as § 1692e(10), in particular, as the statement relating to ...
In Keim v. ADF MidAtlantic, LLC, 12-80577-CIV, 2013 WL 3717737 (S.D. Fla. 2013), the Southern District of Florida granted a motion to dismiss a TCPA class action complaint, holding that the defendants' Rule 68 offer of full potential relief to the named plaintiff rendered said plaintiff's individual claims moot and, in turn, that the Court lacked subject matter jurisdiction over the claims. The plaintiff in Keim filed a class action complaint for statutory damages and injunctive relief under the Telephone Consumer Protection Act (the "TCPA") for sending unsolicited commercial ...
In Mais v. Gulf Coast Collection Bureau, Inc., the United States District Court for the Southern District of Florida addressed the question of whether providing one's cell phone number during a hospital admission amounts to prior express consent under the TCPA to receive collection calls arising out of the hospital visit. __ F. Supp. 2d __, 2013 WL 1899616, at 11 (S.D. Fla. May 8, 2013). Under the particular facts of Mais, the court answered the question in the negative. During a hospital visit, the plaintiff's wife had provided the plaintiff's cell phone number to the hospital's ...
In Wells Fargo Bank v. Bohatka, et al., 38 Fla. L. Weekly D885a (Fla. 1st DCA April 22, 2013), the Florida First DCA reversed dismissal with prejudice of a residential foreclosure complaint. While the appellate court agreed that dismissal of the complaint was proper, it held that dismissal with prejudice was not. The trial court erred by going beyond the four corners of the complaint on the borrowers' motion to dismiss. In its foreclosure complaint, Wells Fargo alleged that it was the owner and holder of the subject promissory note and mortgage by virtue of an equitable transfer which ...
In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1283885, 11-CV-61936 (S.D. Fla. March 27, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida issued an important opinion concerning the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C § 227(b)(1)(A)(iii), in a case dealing with one of the more troubling trends in TCPA litigation - efforts to hold individual officers or stakeholders of TCPA defendants individually liable. In Mais, Jack W. Brown III ("Brown") was named a defendant in a putative TCPA class action. Brown was allegedly the ...
The Florida Fourth DCA opinion in Shahar v. Green Tree Servicing, 38 Fla. L. Weekly D563d (Fla. 4th DCA March 6, 2013) demonstrates the dangers of inadequately addressing each and every affirmative defense raised by a foreclosure defendant. In Shahar, the appellate court reversed the trial court's entry of summary judgment where the lender did not factually or legally refute the defendants' unclean hands defense. The defendants' Verified Amended Answer, Affirmative Defenses and Counterclaim included allegations that the lender had engaged in a variety of inequitable and ...
On March 7th, the Florida Supreme Court held that the economic loss rule (the doctrine that an economic loss is not recoverable under a tort theory unless accompanied by physical property damage or personal injury) applies only to products liability cases, effectively eliminating use of the doctrine in consumer cases. Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Cos., Inc., 2013 WL 828003 (Fla. Mar. 7, 2013). In Tiara, a condominium association sued its insurance broker under both tort and contract theories for failing to inform the association that it was underinsured for ...