Category Archives: Florida

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Appellate Court Reverses Course on Lis Pendens Effect on Post Judgment Liens

UPDATE: On rehearing, the appellate court held that all liens placed on property between a final judgment of foreclosure and judicial sale are discharged by Florida statute. Specifically, the court recognized that the sale discharges all liens, whether recorded before final judgment or after, if the lienor does not intervene in the action within 30 days … Continue Reading

Servicers Beware: Courts Rule Non-Parties Cannot Invoke Jury Trial Waiver

In Florida, courts routinely enforce jury trial waiver provisions found in loan agreements, which are generally valid and enforceable. This is true even with respect to fair debt actions. However, because there is generally a fundamental right to a jury trial, waivers of this right are strictly construed. As such, federal courts in Florida have … Continue Reading

No Free Houses—Florida Supreme Court Approves Fifth DCA’s Bartram Decision and Extension of Singleton v. Greymar

The mortgage industry scored a significant victory last week when the Florida Supreme Court released its decision in Bartram v. U.S. Bank, N.A. broadly approving of the approach taken by the Fifth District Court of Appeal and other courts in addressing the application of the statute of limitations in the context of an action for … Continue Reading

Same Verse, Different Chapter: The Statute of Limitations Saga Continues in Florida

The Second District Court of Appeals joins the Third District in affirming a final judgment of foreclosure in favor of the bank in an action based on a breach date that falls outside the five-year statute of limitations under Florida Statute 95.11(2)(c), beginning the second chapter of the statute of limitations saga. The Second District … Continue Reading

Florida Appellate Court Rules Lis Pendens Does Not Bar Post Judgment Liens

In a recent decision issued by the Fourth District Court of Appeal, the court held that while a lis pendens may discharge liens that exist prior to entry of a final judgment of foreclosure, it does not affect those that accrue after the date on which the judgment is entered. In Ober v. Town-Of-Lauderdale-By-The-Sea, the … Continue Reading

Florida Appellate Court Bolsters Statutory HOA Safe Harbor

A significant opinion from the Florida Third District Court of Appeal further clarifies the extent of the Florida statutory homeowners association (HOA) “safe harbor.” In the end, entities that obtain title through judicial foreclosures are left satisfied while homeowners associations are left reeling from another nail in the safe harbor coffin. The Florida safe harbor … Continue Reading

Florida Court of Appeals Finds Notice of Assignment Not Condition Precedent to Foreclosure Suit

In January, the Florida Second District Court of Appeals—addressing an issue of first impression in the Florida district courts of appeal—held that providing written notice of assignment of a note described in Fla. Stat. § 559.715 is not a condition precedent to foreclosure. In Brindise v. U.S. Bank Nat’l Assoc., the noteholder acquired borrowers’ note by … Continue Reading

Servicer’s Loss Mitigation Letters Found Not to Be Attempts to Collect a Debt

A recent decision from Pasco County, Florida clarifies for lenders and servicers what constitutes an attempt to collect a debt when they are communicating with a debtor about loss mitigation. In Hurtubise v. P.N.C. Bank, N.A., the borrower, James Hurtubise, filed suit against his creditor, PNC Bank, alleging that the bank improperly contacted him to … Continue Reading

Post-Foreclosure Sale Tenant Protections Proposed in Florida

Florida Senate Bill 524 and House Bill 779 would provide certain protections to tenants after the foreclosure sale of residential property.  The bills, both of which were introduced on March 3, 2015, would add back certain tenant protections that previously existed under the federal Protecting Tenants at Foreclosure Act (PTFA), which sunset on December 31, … Continue Reading
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