Case Law Update

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Roman v. Wells Fargo , Case No. 5D13-2479 (5th DCA 8/1/14) Fact that borrower does not receive notice is not a material issue of fact.   Express language of mortgage only required bank to mail notice, not that borrower receive. 

Wagner v. BOA , Case No. 2D12-6131 (2d DCA 7/18/14)   No evidence to support damages for property inspections and costs/fees reversed.  Damages must be supported by competent, substantial evidence.  Inspections not included in payment history and affidavit not sufficient for fees and costs when the Defendant is entitled to a  evidentiary hearing thereon.

Lafrance v. US Bank , Case No. 4D13-102; 2014 Fla. App. Lexis 10526 (4th DCA 7/9/14)   An undated endorsement fails to support Plaintiff’s standing on the date of filing if not sworn in complaint, affidavit or with testimony.  None of the affidavits filed assert that Plaintiff was owner or holder at the time the complaint was filed and SJ reversed and unendorsed copy was attached to complaint.

Olivera v. BOA, Case No. 2D13-629 (2d DCA 7/11/14)   Proper party with standing is holder of the note and mortgage or holder’s representation and must be established at time of filing.  Holder is a person in possession payable to bearer or person id’d in possession.   SJ denied when affidavit didn’t establish when endorsements were made or when Plaintiff or predecessor became holder and the assignment post-dated complaint.

Ryan v. Wells Fargo , Case No. 4D13-2155 (4th DCA 7/23/14)  At trial, Bank offered original note with no endorsement although a copy of the Note with an endorsement had been filed in the Court file 2 yrs after filing and witness did not know if Bank owned loan upon filing, so Plaintiff lacked standing and case dismissed.

Boyd v. Wells Fargo , Case No. 4D13-208 (4th DCA 8/6/14) FJ reversed without documentation to establish Plaintiff’s standing at the time of filing of complaint.

Arcilia v. BAC , Case No. 2D13-2366 (2d DCA 8/6/14)  1.540 motion for relief from FJ for a mistake, inadvertence, surprise or excusable neglect must be filed within 1 year and cannot be granted without opposing party opportunity to be heard at an evidentiary hearing.

Gann v. BAC, Case No. 2D12-6271 (2d DCA 8/15/14)   Count 1 of Complaint for FCCPA dismissed in error by going beyond the 4 corners.  FCCPA applies to debt collectors and any person (including banks collecting a mortgage loan).  ot be granted without opposing party opportunity to be heard at an evidentiary hearing.

Iberia v. RHN Invs, Ltd , Case No. 4D14-1330 (4th DCA 7/30/14)   Borrower paid off the debt but did not have an affirmative claim for relief when Plaintiff filed its voluntary dismissal.  Court loses jurisdiction to determine attorney’s fees upon VD.

Mathews v. Branch Banking , Case No. 2D13-4065; 2014 Fla. App. Lexis 8629; 39 Fla. L. Weekly D 1199; 2014 WL 2536831 (2nd DCA 6/6/14)   After sale and disbursement, Clerk holds surplus funds for 60 days pending order.  A subordinate lienholder must file its claim within 60 days of the sale to claim surplus funds, filing an answer and AD prior not sufficient.   45.031(7)(b) is clear and unambiguous requiring any person claiming a right “must file a claim.”

Pineda v. Wells Fargo , Case No. 3D13-2968 (3d DCA 7/23/14) Fla. State 45.032(2) creates rebuttable presumption that property owner (Defendant) receives all surplus funds after payment of subordinate lienholders who have timely filed a claim.   There was no basis for third-party purchaser to share in the surplus, even if they wanted to apply toward 1st mortgage debt.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Agile Assur Group, Ltd v Palmer

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Foreclosure Manual
Agile Assur. Group, Ltd. v. Palmer, — So. 3d —-, 2014 WL 2151971 (Fla. 2d DCA 2014).
Contracts must be read in their entirety, and doing so can require the word “may” be  interpreted as mandatory instead of permissive. A contract clause may require the contract not be interpreted against its drafter, and such provision is given effect.
 This  is the first case in Florida to require that ambiguities in a contract be interpreted neutrally (meaning not against the drafter of the contract) even if the drafter created the ambiguous contract. This is bad news for the Defendant.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

Order 11th Cir – Lodge v. Kondaur – stay violation that causes emotional harm can be “actual” damages under 362(k)

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Consumer debtors claimed violation of the bankruptcy stay based on a “Notice of Sale” that was published in a local newspaper, and in letters that they received from law firms.  The sale was canceled but debtors did not learn that until later.

Although two separate motions for relief from stay were filed by two different “creditors”, the motions were never ruled on and the stay remained in effect throughout the bankruptcy proceedings.  After discharge, the debtors sued seeking  damages under § 362(k) for their emotional distress.

The First, Seventh, and Ninth Circuits have ruled that emotional damages are encompassed within the  “actual” damages provision in § 362(k).  The Fifth Circuit has indicated agreement with this determination.

The Ninth Circuit set up a test for courts to apply when considering whether a plaintiff can recover damages for emotional distress:

1. the plaintiff suffered “significant harm,” as opposed to “[f]leeting or trivial anxiety or distress”;

2. that significant harm is “clearly establish[ed]”; and

3. there is “a causal connection between that significant harm and the violation of the automatic stay (as distinct, for instance, from the anxiety and pressures inherent in the bankruptcy process).”

The Ninth Circuit explained that the second part of the test can be covered by corroborating medical evidence or non-expert testimony (family members, friends, or co-workers) about the manifestations of the anguish.

Lodge v. Kondaur Capital Corp., — F.3d —-, 2014 WL 1813298 (11th Cir. May 8, 2014)

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net

CLARK ET UX. v. RAMEKER, TRUSTEE, ET AL Decided June 12, 2014

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The U.S. Supreme Court has now found that funds in an inherited IRA account are not exempt funds. This decision could have far-reaching and significant impact on people with large sums of inheritance monies held in IRA accounts. In fact, the impact could be financially devastating.

“ Three legal characteristics of inherited IRAs provide objec­tive evidence that they do not contain such funds. First, the holder of an inherited IRA may never invest additional money in the account. 26 U. S. C. §219(d)(4). Second, holders of inherited IRAs are required to withdraw money from the accounts, no matter how far they are from retirement. §§408(a)(6), 401(a)(9)(B). Finally, the holder of an inherited IRA may withdraw the entire balance of the account at any time—and use it for any purpose—without penalty. Pp. 4–6.”

 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: calh@gate.net