Lady Bird Deeds In Florida

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A Lady Bird Deed, also known as an Enhanced Life Estate Deed, can be a useful estate planning tool for homeowners in Florida. Here are a few reasons why you may want to consider having a Lady Bird Deed for your homestead property:

  1. Avoiding Probate: When you pass away, your property typically has to go through the probate process before it can be distributed to your heirs. This process can be time-consuming, expensive, and can tie up your property for months or even years. A Lady Bird Deed can help you avoid probate by allowing your property to pass directly to your designated beneficiaries without going through probate.
  2. Retaining Control of Your Property: With a Lady Bird Deed, you retain control of your property during your lifetime. You can continue to use and enjoy your property, sell it, or mortgage it without the need for your beneficiaries’ permission.
  3. Medicaid Planning: If you require long-term care in the future and need to apply for Medicaid, a Lady Bird Deed can help you protect your property from being subject to Medicaid estate recovery. This means that your property would not be sold to pay back the government for any Medicaid benefits you received.
  4. Flexibility: Lady Bird Deeds offer flexibility and can be revoked or amended during your lifetime. This means that if your circumstances change, you can change the beneficiaries or revoke the deed altogether.
  5. Homestead Exemption: In Florida, homestead property is entitled to certain legal protections, such as exemptions from property taxes and creditor claims. A Lady Bird Deed can help ensure that these protections remain in place while allowing you to transfer the property to your designated beneficiaries.

In summary, a Lady Bird Deed can be a useful estate planning tool for Florida homeowners, allowing you to avoid probate, retain control of your property, protect your property from Medicaid estate recovery, and maintain your homestead protections. However, it is important to consult with a qualified estate planning attorney to determine whether a Lady Bird Deed is right for you and your specific circumstances.

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

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]

FL (2nd DCA) Reverses Foreclosure Judgment Due to Inadequate Proof of Amount Due, But Remands Without Involuntary Dismissal

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2nd DCA reversed a final judgment of foreclosure, holding that the mortgagee failed to properly establish the amount of its damages. the court, however, affirmed State Farm had established its standing as the holder of the note and mortgage, and the default of the mortgagor/borrower under the note.  The borrower failed to move for dismissal at the close of evidence, the proper remedy was reversal and remand, rather than involuntary dismissal.

Colson v. State Farm and Wachovia

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/April/April%2015,%202015/2D13-5526.pdf

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

Case Law Update PT II

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Unrue v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 4648205 (Fla. 5th DCA 2014).

 

A court must allow at least one attempt at amendment of a quiet title counterclaim to a mortgage foreclosure; Badgley v. SunTrust Mortg., Inc., 134 So.3d 559, 561 (Fla. 5th DCA 2014), is distinguished because the Badgley dismissal was of amended complaint.

 

 

 

Handel v. Nevel, — So.3d —-, 2014 WL 4627765 (Fla. 3d DCA 2014).

 

Failure to check emailed proposed orders which purportedly misstate a trial court ruling does not constitute excusable neglect under Rule of Procedure 1.540.

 

 

 

Ledo v. Seavie Resources, LLC, — So.3d —-, 2014 WL 4628549 (Fla. 3d DCA 2014).

 

Striking of pro se pleadings is examined under the Ham v. Dunmire, 891 So.2d 492/Mercer v. Raine, 443 So.2d 944 (Fla.1983), analysis instead of the Kozel factors. Consistently failing to respond to discovery despite repeated court orders to do so satisfies the Ham/Mercer requirement for striking pro se pleadings.

 

 

 

Pennington v. Ocwen Loan Servicing, LLC, — So.3d —-, 2014 WL 4629173 (Fla. 1st DCA 2014).

 

The assignment of a mortgage does not necessarily assign or transfer the note.

 

 

 

Sto Corp. v. Greenhut Const. Co., Inc., — So.3d —-, 2014 WL 4629200 (Fla. 1st DCA 2014).

 

Certiorari review is generally not available for orders striking pleadings for discovery violations unless the order results in a “cat out of the bag” scenario or effectively punishes a party in a manner that is not remediable by plenary appeal.

 

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

 

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: [email protected]

Wells Fargo Foreclosure Manual

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You can read the instruction manual provided to foreclosure counsel here:

http://apps.washingtonpost.com/g/documents/business/wells-fargo-foreclosure-manual/879/

This manual provides counsel instructions on how to proceed when documents needed for the foreclosure are missing. This manual was released by a New York Bankruptcy Attorney, Linda Tirelli.

 

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