FL App Ct 3rd DCA Holds Foreclosure SOL Triggered By Acceleration, Not Merely By Notice of Default With Reference to Future Acceleration

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The Third District Court of Appeal, State of Florida, held that a re-filed foreclosure action was not barred by Florida’s five year statute of limitations, because the statute of limitations was triggered by a notice of default.

The Appellate Court held that the statute of limitations was triggered by the foreclosure complaint, not the mortgagee’s notice of default, because the mortgagee exercised its acceleration option and notified the borrower by filing its foreclosure complaint -the foreclosure complaint explicitly provided that the sums due and owing were accelerated, but the notice of default only sought to collect the amount necessary to cure the default and did not constitute an automatic acceleration.

The statute of limitations on a mortgage foreclosure action in Florida does not commence until a default in payment of the final installment due, unless the mortgage contains an acceleration clause. Locke v. State Farm Fire and Cas. Co., 509 So. 2d 61375 (Fla. 1st DCA 1987).

Under Florida law, when an acceleration clause is absolute, the entire indebtedness becomes due immediately upon default, requiring neither notice of default nor some further action to accelerate the debt.  Baader v. Walker, 153 So. 2d 51 (Fla. 2d DCA 1963). By contrast, where the acceleration clause is optional, it is not automatic or self-executing, but requires the lender to exercise this option and to give notice to the borrower that it has done so.  See Campbell v. Werner, 232 So. 2d 252, 254 n. 1 (Fla. 3d DCA 1970).

When the borrower defaults on a payment under a note containing an optional acceleration clause, the lender can exercise its option to accelerate all future payments, making the entire debt immediately due and payable- the statute of limitation commences, when the lender exercises the acceleration option and notifies the borrower of this exercise. See Greene, 733 So. 2d at 1115; Monte v. Tipton, 612 So. 2d 714 (Fla. 2d DCA 1993).

The Appellate Court held that the notice of default did not accelerate the debt nor did it “apprise the maker of the fact that the option to accelerate has been exercised.”  Central Home Trust, 392 So. 2d at 933.  The communication served as a notice of default, notice of borrowers’ right to cure, and notice that the mortgagee intended, at some unspecified future date, to accelerate the debt if borrowers failed to cure the default as set forth in the notice.

Under the terms of the mortgage, a tender by borrowers of the default amount would cure the default and prevent mortgagee from accelerating the debt. Yelen v. Bankers Trust Co., 476 So. 2d 767 (Fla. 3d DCA 1985). The payment demanded by the notice of default was merely the specific amount necessary to bring the loan current.

http://www.3dca.flcourts.org/Opinions/3D14-1547.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

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Happy Thanksgiving

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Thanksgiving Day is a national holiday celebrated in Canada and the United States as a day of giving thanks for the blessing of the harvest and of the preceding year. It is celebrated on the second Monday of October in Canada and on the fourth Thursday of November in the United States. Thanksgiving has its historical roots in religious and cultural traditions and has long been celebrated in a secular manner as well.

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

FL App Ct Requires Evidence of Adequate Protection Against Other Claimants to Lost Note, Vacates Foreclosure on Lost Note

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The 5th DCA of the State of Florida,  held that a mortgagee was not entitled to final judgment of foreclosure where the mortgagee failed to introduce any evidence of adequate protection for its lost note at trial, as required under Fla. Stat. 673.3091.

The Court followed the 3rd DCA  decision in Guerrero v. Chase Home Fin., LLC, 83 So. 3d 970, 974 (Fla. 3d DCA 2012) and reversed the lower court’s granting of final judgment of foreclosure in favor of the mortgagee and against the borrower, and remanded the matter for establishment of the lost note and mortgage.

A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2014/101314/5D14-78.op.pdf.

Fla. Stat. 673.3091 governs the enforcement of lost, destroyed or stolen instruments, and provides in pertinent part:

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 [proof of signatures and status as holder in due course] applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

Fla. Stat. 702.11(1) explains the concept of adequate protection, and provides in pertinent part:

(1) In connection with a mortgage foreclosure, the following constitute reasonable means of providing adequate protection under s. 673.3091, if so found by the court:

(a) A written indemnification agreement by a person reasonably believed sufficiently solvent to honor such an obligation;

(b) A surety bond;

(c) A letter of credit issued by a financial institution;

(d) A deposit of cash collateral with the clerk of the court; or

(e) Such other security as the court may deem appropriate under the circumstances.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

4th DCA FL App Ct Reverses Trial Court’s Ruling Allowing Mortgagee to Correct Foreclosure w/ Wrong Legal Description

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Fourth District District Court of Appeals of the State of Florida, entered a final summary judgment of foreclosure that had been entered with the incorrect legal description was a “voidable,” not “void” judgment and, as a result, was subject to the one year time limit for motions to vacate the judgment.

The Court held, that the mortgagee filed its motion to vacate the judgment more than three years after it was entered, the trial court erred in granting the mortgagee’s motion to vacate.

A copy of the Court’s opinion is available at:  http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-4066.op.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

HAMP does not Create Private Cause of Action

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The Eleventh Circuit Court of Appeals  recently held that the Home Affordable Modification Program (“HAMP”) does not create a private cause of action.  

the parties had a temporary modification in place, and athough the two parties agreed to a temporary modification, the lender then indicated that it would not extend a permanent loan modification to the borrower.     

The borrower sued, alleging that the lender had not complied with its obligations under HAMP. The borrower alleged breach of contract and promissory estoppel, among other claims, in connection with his HAMP allegations. 
HAMP does not expressly create a private right of action for borrowers, the Eleventh Circuit began its analysis by reviewing the relevant factors to determine whether HAMP might create an implied right of action: (1) whether the plaintiff is one of the class for whose “especial benefit” the statute was enacted; (2) whether there is any indication of legislative intent for or against the creation of a private right of action; (3) whether an implied remedy for the plaintiff is consistent with the purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law. 
After consideration of those factors, the Eleventh Circuit held that “it is clear that no private right of action exists” under HAMP. 
The Court found the purpose of the Emergency Economic Stabilization Act of 2008 and HAMP, was to “restore liquidity and stability to the financial system of the United States.”  12 U.S.C. Sec. 5201(1).  Further, the Court found no evidence of legislative intent to create a private right of action. 
http://www.ca11.uscourts.gov/opinions/ops/201115166.pdf

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

 

11th Cir Compels Arbitration in Overdraft Fee Putative Class Action, Severs Allegedly Unconscionable Fee Shifting Provision from Arbitration Provision

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The Eleventh Circuit Appeals held in a putative class action that:  (1) the Federal Arbitration Act did not preempt South Carolina law regarding the contract defense of unconscionability; (2) a fee-shifting provision in a bank’s deposit account agreement containing a separate mandatory arbitration provision was unconscionable and thus unenforceable; (3) the fee-shifting provision was severable from the arbitration provision; and  (4) the mandatory arbitration provision was thus enforceable.
A bank depositor filed a putative class action against Bank,  regarding charged overdraft fees on checking accounts.
 
The district court denied Banks’  motion to compel arbitration, ruling that the arbitration agreement was unconscionable and thus unenforceable under South Carolina law.  Bank appealed the ruling.
The bank appealed twice!   In light of the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S CT. 1740 (2011)(“Concepcion”), the Eleventh Circuit remanded with instructions to compel arbitration, ruling that, severed from the unconscionable Fee-Shifting Provision, the mandatory arbitration provision was enforceable.
 
The Eleventh Circuit noted that the FAA did not preempt “‘generally applicable contract defenses’ provided by state law ‘such as fraud, duress, or unconscionability’”  See Concepcion, 131 S.Ct. at 1746. South Carolina’s test for unconscionability applied equally to arbitration as well as other agreements.  See, e.g., Community State Bank v. Strong, 651 F.3d 1241, 1267 (11th Cir. 2011).
 
Concluding that the terms of the Fee-Shifting Provision were unconscionable under South Carolina law, the Eleventh Circuit ruled that the Fee-Shifting Provision was unenforceable. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)(losing parties normally not entitled to recover costs and fees). 
  
http://www.ca11.uscourts.gov/opinions/ops/201114318.pdf

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: [email protected]

 

Pinellas County Violates Bankruptcy Stay

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The Sixth Circuit modified the foreclosure procedure on August 15, 2015 by Administrative Order.   If you have a Bankruptcy client who has had a prior bankruptcy in the same foreclosure suit, the Judges will not stop the foreclosure sale-  even if the bankruptcies were more then a year apart and the Stay is valid.

The rationale behind this is that a “void sale” can be set aside later.   However,  you will need to pay a fee of $53.00 to reopen the case to file your Motion to Set Aside the Sale, and you only have 10 days to file the Motion after the sale!  If the bank buys the property and you have notified the bank’s counsel, your client may be safe.

If, a third party with no knowledge of the bankruptcy buys the property,  is your client out of luck? Does the filing of the Suggestion of bankruptcy in the Court record constitute constructive notice on the Third Party Purchaser?  What about the Fact that a Valid Stay Was Enforced?   One of my colleagues has taken this issue to our Tampa Middle District Bankruptcy Judges- stay tune!

Side Note

Apparently, the Clerk’s Office in Seminole County tried a similar move through their internal procedures.  A Motion For Sanction was filed against the Clerk’s office.

Motion for Sanctions – Seminole County Clerk

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

 

HAPPY VETERAN’S DAY

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Veterans Day is an official United States federal holiday that is observed annually on November 11, honoring people who have served in the U.S. Armed Forces, also known as veterans.

 

 

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

FL App Ct Holds Res Judicata Does Not Bar New Foreclosure Action Based on New Defaults

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The Fourth District Court of Appeal of the State of Florida,held that res judicata does not render a mortgage unenforceable or preclude a subsequent foreclosure action based on a default not alleged in the prior action.

The mortgage and note was sold and assigned to another entity (“Lender”).  Borrower defaulted on the note and failed to pay homeowner association fees assessed by her homeowner association (“HOA”).

Lender’s predecessor in interest filed suit to foreclose in August 2007, alleging a default in the payment due on April 1, 2007.  The complaint named HOA as a co-defendant because of its potential junior lien interest. The First Foreclosure by Lender was eventually dismissed.

Between the dismissal of the first foreclosure action and the Lender’s filing of its second foreclosure action, HOA obtained title to the subject property by foreclosing its own homeowner association lien and purchasing the property at the court-ordered foreclosure sale.

HOA  filed a motion for final summary judgment, arguing that the involuntary dismissal of Lender’s first foreclosure action operated as an adjudication on the merits pursuant to Florida Rule of Civil Procedure 1.420(b), and thus, Lender was barred from re-litigating the claim.  The trial court agreed and granted HOA’s motion.

HOA to quiet title on the basis of res judicata and sought a court order removing Lender’s mortgage as an encumbrance on the property.  The trial court also granted judgment on HOA’s quiet title in favor of HOA.

The Appellate Court in this case agreed with Lender that despite an adjudication on the merits in a prior action to foreclose a mortgage, res judicata did not render the mortgage unenforceable by precluding enforcement actions on subsequent defaults

Courts have  previously held that res judicata does not bar the later foreclosure action, because a new default — based on a different act or date of default not alleged in the dismissed action — creates a new cause of action that is not barred by res judicata.  See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1008 (Fla. 2004); Star Funding Solutions, LLC v. Krondes, 101 So. 3d 403, 403 (Fla. 4th DCA 2012).

The Court turned to HOA’s quiet title claim.  The Court reasoned that because each payment default created a basis for a subsequent foreclosure, the note and mortgaged remained a valid and enforceable lien against the property, and did not, as a matter of law, constitute a cloud on the property supporting a quiet title claim.  See Kaan v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1274 (S.D. Fla. 2013).

Accordingly the Appellate Court reversed.

http://www.4dca.org/opinions/Sept.%202014/09-24-14/4D13-1992.op.pdf

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

6th Cir Holds Mortgagee Did Not Breach Settlement w/ Borrower By Disclosing Cancelled Indebtedness to IRS

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The U.S. Court of Appeals for the Sixth Circuit  reversed  a  summary judgment in favor of a mortgagor where the plain language of a settlement agreement ( in a breach of contract claim) did not prohibit a lender from reporting its transaction with the Internal Revenue Service (IRS).

http://scholar.google.com/scholar_case?q=mccluskey+v+century+bank+sixth+circuit&hl=en&as_sdt=400006&as_ylo=2015&case=5477080525693672075&scilh=0

The Sixth Circuit concluded the Settlement Order said nothing about how each party would treat the transaction for tax purposes nor about how each party would report the transaction to  the IRS.  The Lender  was allowed to issue the 1099.

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761, Phone: (727) 410-2705 email: [email protected]