FL Trial Court Rules Mortgage Loan Owner’s Liability for Unpaid Condo Assessments Not Limited by Fla Safe Harbor, Where Foreclosure Judgment Was Entered in Servicer’s Name

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A Broward County  Judge- 17th Circuit of Florida held that a mortgage loan owner’s liability to a condominium association for unpaid assessments was not limited by Florida’s safe harbor provision at Fla. Stat. § 718.116(1)(b).  The safe harbor did not apply where the loan owner was not the first mortgagee of record at the time of foreclosure but rather was assigned the right to bid at the foreclosure sale by the loan’s servicer, ( the plaintiff and mortgagee of record) .

Section 718.116(1)(b) limits “the liability of a first mortgagee or its successors or assignees who acquire title to a [condominium] unit by foreclosure or by deed in lieu of foreclosure for unpaid assessments that became due before the mortgagee’s acquisition of title to the lesser of: (a) the [unpaid assessments] which accrued or came due during the 12 months immediately preceding [acquisition of title]; or (b) one percent of the original mortgage debt[.]” § 718.116(1)(b), Fla. Stat.

To be entitled to limited liability under the Florida safe harbor, “a party must establish: (1) it was a first mortgagee; (2) it acquired title to the condominium unit through foreclosure; and (3) the condominium association was joined as a defendant in the foreclosure action[.]”

The court held, in order to be entitled to the safe harbor, “[t]he key is who had rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or assignee.” Bermuda Dunes Private Residences v. Bank of Am., 133 So. 3d 609, 615 (Fla. 5th DCA 2014).

A post-judgment assignment of a foreclosure judgment is insufficient to confer the protection of the safe harbor as a matter of Florida law. Bay Holdings, Inc. et al. v. 2000 Island Boulevard Condo. Ass’n, 895 So. 2d 1197 (Fla. 3d DCA 2005).

Fannie Mae v Park Place at Pompano Condo. Ass’n (17th Jud Cir)

 

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

 

2nd Cir Confirms Defendant May Remove State Action to Fed Ct Before Being Served With Process

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The U.S. Court of Appeals for the Second Circuit held that a defendant may remove a state court action to federal court before being formally served with process.

http://media.ca1.uscourts.gov/pdf.opinions/13-2543P-01A.pdf

Under 28 U.S.C. § 1446(b)(1), a defendant may remove a pending action from state to federal court at two points in time – i.e., the shorter of either within 30 days after receiving the initial pleading or, alternatively, within 30 days after being served with a summons.  This forum shopping may be useful depending on your local circuit.

 

 

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

Note Worthy Foreclosure Cases for August 2015

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There are many recent changes to foreclosure case law that effect  consumers.    in an effort to keep you informed of what you may see in your foreclosure defense case, I have listed the very case synopses here.  Many  of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis  could not be improved upon so I posted hers.  Pinellas , Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your foreclosure defense today.

Voce v. Wachovia, Case No. 4D15-34 (4th DCA 8/26/15) Borrowers moved to vacate FJ due to the failure of the Bank to offer modification and  claimed disclose settlement was extrinsic fraud per 1.540(b). For Florida Statute  1.540(b) fraud motion must be within one year and the motion was untimely at three years later! Additionally, the motion was without merit because it  must prove borrowers were prevented from participating to allege extrinsic fraud and  they had no rights nor were they the  intended beneficiary or party to settlement between  the State and Bank. 

Deutsche v. Stone, Case No. 4D14-2514 (4th DCA 8/26/15) Court may not involuntarily dismiss a case before plaintiff rests its case.

Vercosa v. Fields, Case No. 4D14-4724 (4th DCA 8/26/15) When damages are unliquidated, a defaulting party is entitled to notice and an opportunity to be heard.   When the notice is mailed to the wrong address or lists the wrong courtroom (or the location is later changed), the final judgment is void and should be vacated/set aside.   

Fiorito v. Chase, Case No. 4D13-2813 (4th DCA 8/26/15) Reversed and dismissed for lack of standing. Copy of note attached contained no endorsements or allonges and after the dismissal of  the lost note count in the complaint,  the original note  contained an undated blank endorsement,  but no testimony was presented as to the date the endorsement was placed on note. 

Nationstar v. Brown, Case No. 1D14-4381 (1st DCA 8/24/15) A subsequent and separate default creates a new and independent right to accelerate payment in a subsequent foreclosure action and it is  irrelevant that acceleration was sought in an earlier foreclosure action or that dismissal with prejudice  was granted and  is not time barred under 95.11.   See Singleton v. Greymar.  

Fowler v. TD Bank, Case No. 5D14-4134 (5th DCA 8/21/15) Affidavit that rental properties never intended to be encumbered and conflict in street address and legal descriptions creates an ambiguity and question of material fact that should not have been decided on SJ.

BOA v. Enclave, Case No. 2D14-3643 (2d DCA 8/21/15) BOA sought enforcement of FJ of 718.116 safe harbor.   Assn estopped from taking a position contrary to which it affirmatively took in the f/c proceeding –its answer of entitlement to only lesser of 6 mos or 1% was a waiver of any other claim.

Grand Cent v. Space Coast, Case No. 2D14-2740 (2d DCA 8/19/15) More than a year after FJ, Space Coast filed a motion to enforce FJ seeking entitlement to safe harbor for condo fees under 718.116(1)(b). Trial court lacked jurisdiction because assessments was neither litigated nor adjudicated and there was no reservation of jurisdiction to determine the assessments.   Trial courts lose jurisdiction after expiration of rehearing or new trial or 1.540 unless reserved. “We would encourage courts to consider specific language reserving jurisdiction to address entitlement to and amount of any unpaid assessments.”  

Bayview v. Hambleton, Case No. 1D14-1703 (1st DCA 8/19/15) Condo association foreclosure proceeding, to which Bank was not a party, does not extinguish a bank’s superior interest and Bank owned and held the Note and thus  had standing.

Lamb v. Mortgage, Case No. 4D13-3125 (4th DCA 8/19/15) Aurora filed and Nationstar substituted  as Plaintiff upon assignment of mortgage (note not assigned). Original note was lost and copy endorsed to Aurora. No testimony about standing provided; only that Nationstar acquired Aurora, but nothing about this Note.   When seeking to enforce a note endorsed to another, standing is proven through assignment, proof of purchase of the debt or evidence of an effective transfer. 

Donado v. Pennymac, Case No. 4D13-1383 (4th DCA 8/19/15) Complaint dismissed without prejudice as defective when complaint was filed as not verified as required.   In 2010, it was Rule 1.110(b) but now Rule 1.115. 

Cardona v. Nationstar, Case No. 4D14-1609 (4th DCA 8/19/15) FJ reversed when bank’s witness testified about business records which were not introduced into evidence. Without the business records, the employee had no personal knowledge. 

Perez v. Deutsche, Case No. 4D13-4812 (4th DCA 8/19/15) Bank offered undated blank note and witness did not know when note was endorsed; PSA was insufficient to establish standing and there was no evidence of transfer prior to filing. FJ reversed lack of standing.

Bis v. US Bank, Case No. 4D13-3310 (4th DCA 8/19/15) Bank voluntarily dismissed foreclosure action and amount of the fee hearing not accompanied with transcript.   Rule 1.420(d) is unambiguous as to costs, which are to be assessed upon voluntary dismissal. 

Fed Home v. Beekman, Case No. 4D13-4086 (4th DCA 8/19/15) Borrower had not complied with trial modification payment plan and then tried to force bank into a modification at trial.   Trial court erred by forcing a modification offer or imposed a new contract on the parties – it was outside the scope of the pleadings and was not tried by consent.   

Citation Way Condo v. Wells Fargo, Case No. 4D14-2667 (4DCA 8/19/15) Distinguishable from Sienna Ridge requiring independent action for unpaid condo assessment because it was raised in the foreclosure action and FNMA and Wells had direct relationship as its servicer. 

TD Bank v. Graubard, Case No. 5D14-1505 (5th DCA 8/14/15) A deficiency is a continuation of the foreclosure proceeding and no additional proof of debt is necessary. Bank only has to prove and introduce evidence that property’s FMV on date of sale was less than total amount of FJ. Court does not have to take judicial notice of orders it entered in the case. 

Boumarate v. HSBC, Case No. 5D14-1379 (5th DCA 8/14/15) Bank has to prove more than mere possession for lost note; but that it was entitled to enforce note at the time of loss. 

Tanner v. Bayview, Case No. 5D14-3746 (5th DCA 8/14/15)   Third persons whose rights or interests are adversely affected have standing to contest a foreclosure action and Plaintiff to present its case at trial.   Consent FJ thus improper and not binding on junior lienors. 

Assil v. Aurora Loan, Case No. 4D14-2257 (4th DCA 8/12/15)   Bank failed to prove standing as nonholder in possession by relying on a letter notifying of transfer of servicing rights; not a servicing agreement that proved Aurora had the right to enforce when it filed the action and had claimed Note was lost in first complaint, with 3 amendments of varying allegations.

Onewest v. Cummings, Case No. 2D14-2397 (2d DCA 8/12/15) Dismissal reversed, Bank had standing.   A plaintiff who is not original lender may establish standing by submitting note with blank or special endorsement, assignment or affidavit proving status as holder at time the complaint was filed. 

Balch v. Lasalle Bank, Case No. 4D14-2057 (4th DCA 8/4/15 on rehearing) Standing not proven through an assignment executed after complaint was filed and by MERS who was not even a party to the PSA and there was no evidence indicating when the indorsement was placed on the note. 

Citi v. Turner, Case No. 1D14-1137 (1st DCA 8/4/15) The plain language of the mortgage unambiguously gave the bank a security interest in the entire property, the Court erred in concluding bank not entitled to foreclosure ½ interest.   Contracts must be interpreted and enforced in accordance with their meaning and in rational manner.

Snowden v. Wells Fargo, Case No. 1D14-2529 (1st DCA 8/4/15) Without a transcript, appellate courts presume the trial court’s judgment was based on evidence adduced at the hearing.

 

 

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

 

Note Worthy Foreclosure Cases In Florida July 2015

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There are many recent changes to foreclosure case law that effect  consumers.    in an effort to keep you informed of what you may see in your foreclosure defense case, I have listed the very case synopses here.  Many  of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis  could not be improved upon so I posted hers.  Pinellas , Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your Foreclosure Defense Needs.

For other districts : http://www.flcourts.org/florida-courts/district-court-appeal.stml

Schmidt v. Deutsche Bank,Case No. 5D14-1616 (5th DCA 7/31/15) Bank failed to prove standing, no evidence it  was holder  at time of filing. Assignment was dated 18  days after foreclosure suit  was filed.

Yefim v. Wachovia, Case No. 5D13-3468 (5th DCA 7/31/15) Defective default notice of 28 days (v. 30) not material breach and distinguishable from Samaroo.

Vasilevskiy v. Wachovia, Case No. 5D13-3468 (5th DCA 7/31/15) Purpose of notice provision is to allow borrower to cure the default. In this case, the defective letter (dated 28 days v. 30 days after written to cure) was not material or prejudicial because borrowers never attempt to cure in the following 4 years. The shortage of 2 days was insignificant – breach was not material. 

Martins v. PNC, Case No. 5D13-3604 (5th DCA 7/31/15) Error to enter SJ when there are material disputed issues of fact, affidavit is legally insufficient and/or good faith discovery still in progress.   However, if the non-moving party does not act diligently in completing discovery or uses discovery to thwart or delay, SJ is proper (when borrowers made no efforts for 7 months prior to SJ hearing). Titles do not shed light on trustworthiness or documents or competence of affiant to testify about matters or records therein.

Messina v. Deutsche, Case No. 5D14-1616 (5th DCA 7/31/15) When Bank files a lost note count and then later claims it had possession of the Note on the date of filing without any personal knowledge as to the date the Bank actually obtained possession and assignment dated after filing, the Bank lacks standing. 

James Perry v. CRSJ, Case No. 3D14-2510 (3d DCA 7/29/15) Lien terminated five years after its maturity date since extension must be recorded to extend time to file foreclosure action. 

Snyder v. JP Morgan, Case No. 4D13-4036 (4th DCA 7/29/15) Involuntary dismissal should have been granted when Bank failed to prove it had possession of note upon filing and lack standing to enforce the note.

DeSousa v. JP, Case 4D14-4638 (4th DCA 7/29/15) Generally, intervention is not allowed post-judgment and a purchaser can protect itself by checking the public records for liens and lis pendens. 

Greentree v. Milam, Case No. 2D14-660 (2d DCA 7/29/15)   Contractual condition precedent evaluated for substantial compliance or performance. When default letter (paragraph 22) is nearly equivalent or varies only in immaterial respects, letter substantially complies.

Wells v. Robinson, Case No. 5D14-2819 (5th DCA 7/24/15)   Bank failed to prove who lost the note or who had right to enforce note when it was  lost. Court properly dismissed for failure to reestablish lost note.   Dismissal does not preclude new action based on different dates of default.

Kenney v. HSBC, Case No. 4D13-4165 (4th DCA 7/22/15)  Unendorsed note attached to complaint. The assignment was later backdated and the note introduced at trial had a blank endorsement and there was no testimony as to the date the endorsement was placed on the Note.

Chappelle v. South Fla. Guard, Case No. 4D13-2613 (4th DCA 7/22/15) judge must consider the 6 Kozel factors and must make a finding that the conduct was equivalent to willfulness or deliberate disregard before entry of judicial default or sanctions.

St. Clair v. US Bank, Case No. 2D14-211 (2d DCA 7/17/15) Bank failed to demonstrate it had standing when it relied on possession of the note, a pooling servicing agreement, default notice letter and fee payment schedule as nonholder in possession with rights of holder.  Mere possession is inadequate and the Bank failed to provide evidence it had acquired the loan from Lenders Direct (PSA was with SLS).   ** case brief by Judge Cynthia Cox****

Central v. Amtrust, Case No. 5D14-1511 (5th DCA 7/17/15) without reservation in FJ  court lacks jurisdiction to alter, modify, or vacate judgment or rule on post-judgment condo  assessments §718.116.

Smith v. Reverse Mtg, Case No. 3D13-2261 (3d DCA 7/15/15) Condition precedent not met in reverse mortgage foreclosure upon death of husband, as wife was co-borrower under the mortgage, although she didn’t sign note.  ** case brief by Judge Cynthia Cox****

Peuguero v. Bank of America, Case No. 4D13-3210 (4th DCA 7/15/15) Testimony was sufficient to prove the endorsement was executed prior to filing and to admit payment history per Cayea.

Kelly v. BNY Mellon, Case 1D13-2778 (1st DCA 7/14/15)   Undated blank endorsement on Note insufficient to prove standing without evidence that it occurred prior to filing which was not provided at trial.

Blue Infiniti v. Wilson, Case Nos. 4D14-813, 14-887 (4th DCA 7/8/15)  voluntary dismissal does not make defendant prevailing party- must prevail on significant issues,  re in Padow … when Plaintiff obtained most of what it sought before it voluntarily dismissed defendant is not prevailing party.  A full evidentiary hearing is required for 57.105 good faith issue with detailed findings.

TD Bank v. Graubard, Case No. 5D14-1505 (5th DCA 7/2/15)   Claim for deficiency is continuation of the original foreclosure suit and reintroduction of final judgment of f/c is not necessary to establish right to deficiency in same case.

Wright v. JP Morgan, Case No. 4D14-545 (4th DCA 7/1/15)   No evidence note and mortgage transferred from Chase to JP Morgan Chase.   A parent and its subsidiary are separate and distinct legal entities.  Parent company cannot exercise rights of its subsidiary without proof of transfer or servicing agreement.   Notice of servicing transfer is not competent evidence when never authenticated and admitted. 

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

 

 

2nd Circuit- Servicing Notice Not Exempt from FDCPA

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A case which may change how you proceed in your foreclosure defense recently came out.  I have listed a brief synopsis of it below.   So discuss how this may apply to your case contact us for your free consultation.

The mortgage servicer argued that because the purpose of the servicing transfer notice was to provide transfer-of-servicing information in order to comply with the federal Real Estate Settlement Procedures Act (RESPA), not to collect the debt, it had no obligation to provide the information required by the FDCPA.

The Second Circuit side-stepped the issue, “concluding that an attempt to collect a debt—which we believe the Letter was—qualifies as a communication ‘in connection with the collection of any debt.’” They also held that viewed objectively it was an attempt to collect since it (a) referred to the consumer’s particular debt;  (b) instructed him to send payments to the new servicer at a particular address;  (c) contained boilerplate language expressly stating that “this is an attempt to  collect upon a debt” specifically referencing the FDCPA; and, (d) warned that he must dispute the debt’s validity within 30 days after receiving the letter or the debt would be assumed to be valid.

http://www.ca2.uscourts.gov/decisions/isysquery/32503ca2-ffec-4f95-9eaf-f244781216b8/1/doc/14-191_opn.pdf

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

Parent Company Lacks Standing to Foreclose

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The 4th DCA decided on July 1, 2015  that a Final Judgment of foreclosure be reversed due to lack of standing, where  the whole owned subsidiary  rights to n the note could not be enforced by the parent company    Wright v. JPMorgan Chase Bank N.A., 4th DCA Case No. 4D14-565 (July 1, 2015).  The Court held that absent evidence that the loan was purchased by JPM, it could not enforce the note. JPM did not introduce any purchase agreement or other evidence that it had acquired the note.  The Court also cited   Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 872 So 2d. 333,336 (Fla. 2nd DCA 2004) and  Federated Title Insurers, Inc. v. Ward, 538 So. 2d 890,891 (Fla. 4th DCA 1989).

 

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

No More Lien Stripping in Chapter 7

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Today, the Supreme Court decided the case of Bank of America, N.A. v. Caulkett.  The Court held, unanimously that a debtor in chapter 7 cannot void a junior mortgage lien pursuant to Section 506(d)( lien strip).   SCOTUS reinforced Dewsnup in holding that, the junior lien claims are secured by a lien and allowed under Section 502, that claim cannot be voided, however, when you add the effect of Section 1322(b)(2), the results might well be different, as they were in Nobleman ( you can strip in 13)sup ct decision no more lien strip in 7 6-1-15

http://www.housingwire.com/articles/34051-supreme-court-rejects-2nd-lien-stripping-in-chapter-7-bankruptcies#.VWygK_5o9U8.facebook

 

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

Bankruptcy Court Denies Creditor’s Request to Compel Debtor to Surrender Property

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In re Trussel

2015 WL 1058253 (Bankr. M.D. Fla. March 5, 2015) (Jennemann, J.)

Secured creditor was not entitled to injunctive relief compelling debtor to surrender the property and cease asserting affirmative defenses in the foreclosure action. Evidence presented did not support the argument that debtor failed to comply with his duties under section 521 regarding the statement of intentions. Debtor attempted to reaffirm the debt, but could not reach an agreement with the creditor. The creditor’s desire to “short-circuit” the debtor’s legitimate defenses was not grounds for the relief the creditor requested.

http://www.flmb.uscourts.gov/newsletter/volume5_issue1.pdf

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

4th DCA FL Holds UCC Article 9 – Not Recording Statute

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The Court ruled: Because section 702.01 does not apply as between HSBC and LaSalle Bank, HSBC’s earlier perfection of its security interest in a note arising from the Perez-FGMC transaction establishes its priority over LaSalle. We therefore reverse the final judgment and remand to the circuit court for the entry of a final judgment in favor of HSBC.  Priority  between two assignees of notes  of the same mortgage is determined by by  Article 9 of the Uniform Commercial Code and not the recording statute applicable to assignments of mortgage.

http://www.4dca.org/opinions/May%202015/05-06-15/4D13-3193.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

5th DCA Florida Improper Notice Not Defense to Foreclosure

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ADIEL GOREL AND FLCA TROPICAL HOLDINGS, LLC, v THE BANK OF NEW YORK MELLON

Failure to provide at least 30 days to cure the default  in  notice of default and right to cure did not prejudice the borrower, was not a valid defense to the foreclosure.

The Court ruled: Bank’s default letter set a cure date twenty-nine days later, not thirty or more as required. We agree with Bank that the defective notice did not prejudice Mr. Gorel, as he made no attempt to cure the default. Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract. Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1248-49 (Fla. 5th DCA 2012) (holding breach of condition precedent must be material, meaning one causing prejudice, to constitute defense to enforcement of contract).

http://www.5dca.org/Opinions/Opin2015/050415/5D13-3272.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