Tag Archive for: HOA

Note Worthy Foreclosure Cases March 2016

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I am extremely sad to announce that Hon. Cynthia Cox has transferred from Civil/ Foreclosure to Criminal/Mental Health in the 19th Circuit.   She was extremely helpful and knowledge. The foreclosure attorneys will greatly miss her insight and case law update. Good Luck Judge Cox in your new courtroom.

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 some 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 in tact.

Pinellas, Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your foreclosure defense today.

Note Worthy Foreclosure Cases March 2016 

Ortiz v. PNC, Case No. 4D15-242 (4th DCA 3/30/16 substituted for 3/9/16 opinion) The combination of evidence (original note filed in same condition as attached copy to complaint) is sufficient to establish the Bank had actual possession of note at time of filing and had standing. Substantial compliance with conditions precedent is all that is required in foreclosures (Paragraph 22). 

Knowles v. BNY, Case No. 4D15-630 (4th DCA 3/30/16) No standing where there is no evidence that the Note was transferred into the trust prior to filing and involuntary dismissal ordered.   See also Jelic. 

Alexandre v. Scribner Village HOA, Case No. 4D15-1514 (4th DCA 3/30/16) BK petition automatically stays any further f/c action and error to enforce FJ when stay in place.   Sale should have been set aside.

Catalina v. FNMA, Case No. 15-0271 (3d DCA 3/30/16) Associations are not entitled to interest, late fees, atty fees and costs of collection under the safe harbor protection of 720.3085(2)(c) and only assessments and common HOA expenses.

Alekseyev Shapiro v. US Bank, Case No. 4D14-2668 (4th DCA 3/23/16) Trial court loses jurisdiction to vacate a “voidable” final judgment after 1 year under Rule 1.540.

Firth, Case No. 5D15-3301 (5th DCA 3/21/16) Entry of default FJ without trial when damages are unliquidated (liability only) is error – defaulted party entitled to receive notice of trial on damages. Default as to liability is not a final order.

Cornerstone v. Painted Post, Case No. 4D15-1907 (4th DCA 3/16/16)   Simply failing to make payments in Florida is not sufficient minimum contact with Florida to assert personal jurisdiction.

Geweye v. Ventures Trust, Case No. 2D14-4668 (2nd DCA 3/16/16) Original Note indorsed in blank and Assignment of mortgage (which did not assign interest in Note) did not establish standing on date of filing.   An order of substitution does not create standing.

Lentz v. Community, Case No. 3D14-0726 (3d DCA 3/9/16)   SJ reversed for Court to enforce the parties’ mediation agreement.   Although Courts cannot force banks to offer modifications, Florida’s policy is to promote settlement after the Bank attempted to alter an illusory MSA. 

Chase v. Greenwood, Case No. 5D15-832 (5th DCA 3/2/16) Failing to appear at hearing due to inadvertent secretarial error = excusable neglect and dismissal reversed per Brogdon.

Miller v. BNY, Case No. 4D15-36 (4th DCA 3/2/16)   Failure to send proper notice of acceleration is complete dismissal (as to both acceleration and past due amounts – see Holt v. Calchas substituted opinion @ 155/499).

 

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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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

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]