Consumer Finance Litigation

On April 1, 2020, Florida’s Third District Court of Appeal released its opinion in the case 78D Team, LLC v. U.S. Bank, N.A., etc., 3D 19-1708 (Fla. 3d DCA April 1, 2020). In this appeal, Burr successfully defended an appeal that challenged a payments order under Florida Statute 701.10(2), which permits trial courts in Florida to enter an order requiring monthly mortgage payments be made in foreclosure actions that do not involve owner occupied residential real estate. If payments are not made following such an order, the trial court can order the eviction of the property’s ...

On April 18, 2019, the Florida Supreme Court issued a surprise ruling withdrawing its January 4, 2019 opinion in Nationstar Mortgage LLC v. Glass. The Florida Supreme Court’s opinion, which reversed the Fourth District Court of Appeal ruling in a case of the same name, 219 So. 3d 896, discussed when a defendant in foreclosure can recover attorney’s fees under the attorney’s fee provisions found in loan documents after the defendant prevails on a standing defense.

Originally, the Fourth District Court of Appeal held that the borrower who prevails on standing by arguing the ...

The Florida Supreme Court released an opinion in Glass v. Nationstar, SC17-1387 with widespread implications in contract litigation, and mortgage foreclosure litigation in particular, as it relates to attorney's fee entitlement. In Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) the Fourth District Court of Appeal held that where a borrower prevails on the issue of standing, the borrower cannot utilize the attorney's fee provisions of the note and mortgage to secure prevailing party attorney's fees. The rationale for this decision seemed simple, if the ...

Florida's Fourth District Court of Appeal continued to broadly apply the holding in Nationstar Mortgage LLC v. Glass, 219 So. 3d 896, 898 (Fla. 4th DCA 2017), review granted, SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018) in a recent appeal handled by Burr & Forman.

In Wells Fargo Bank v. Moccia, a foreclosure action was dismissed based upon evidence that the borrower had entered into a deed-in-lieu of foreclosure agreement with the prior servicer. The order of dismissal reserved jurisdiction to enforce the deed-in-lieu agreement. The borrower then moved for attorney's fees ...

On October 31, 2018, Florida's Second District Court of Appeal recently distinguished two of its prior opinions and held that a foreclosure plaintiff does not lose its standing as a holder of a negotiable instrument if it surrenders a promissory note to the clerk of court for purposes of obtaining a foreclosure judgment, and later re-files the action without retaking possession of the note from the clerk.

Two prior opinions from the Second District Court of Appeal, Partridge v. Nationstar Mortgage, LLC, 224 So. 3d 839 (Fla. 2d DCA 2017) and Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d ...

In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit's opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter "ACA"], vacated the Federal Communications Commission's ("FCC") 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system ("ATDS").

The plaintiff, Wilfredo Gonzalez ("Plaintiff"), alleged that Ocwen Loan Servicing, LLC ("Ocwen") used an ATDS to place approximately 500 calls to his ...

In Ferrer v. Bayview Loan Servicing, LLC, No. 15-20877-Civ-Scola, 2018 WL 582584 (S.D. Fla. Jan. 26, 2018), the Southern District of Florida determined that a telephone dialing system that was incapable of predictively dialing, storing, or independently producing telephone numbers and could not place a call without human input was not an automatic telephone dialing system ("ATDS") within the meaning of the Telephone Consumer Protection Act ("TCPA").

Plaintiff Maria Ferrer ("Plaintiff") filed suit against Bayview Loan Servicing, LLC and other defendants ("Bayview ...

Today, Florida's Fifth DCA and Second DCA issued two seminal opinions; Klebanoff v. Bank of N.Y. Mellon, and Huntington National Bank v. Watters, which clarify the cloud of uncertainty that had engulfed the statute of limitations issue in Florida and provide a strong basis for lenders that are filing subsequent foreclosures of the same loan based on the same initial default date.

In Klebanoff, the Bank filed its foreclosure action in 2014 alleging that the Klebanoff's defaulted for failing to make the March 1, 2009 payment and all subsequent payments due thereafter. Klebanoff v. Bank ...

Third party purchaser lacks standing to participate in foreclosure proceeding, absent assertion of intention to redeem the property.
After the Second District Court of Appeal issued a per curiam affirmance of the entry of final judgment of foreclosure in favor of the bank, Judge Sleet issued a specially concurring opinion in which he concluded that because the appellant was a third party purchaser of the property who was not obligated on the note and mortgage, it was "questionable" whether she had standing to challenge the bank's foreclosure proceeding in the first place. Pealer v ...

On November 18, 2016, the United States District Court for the Middle District of Florida held that the communication of an unequivocal and non-coercive settlement offer does not violate the Fair Debt Collection Practices Act (the "FDCPA"). Vazquez v. Prof'l Bureau of Collections of Maryland, Inc., -- F. Supp. 3d --, 2016 WL 6822480, at *2 (M.D. Fla. Nov. 18, 2016). In Vazquez, the plaintiff alleged that a debt collector violated section 1692c(c) of the FDCPA by sending a communication offering to settle a debt (the "Settlement Offer") after the plaintiff disputed the debt. Id. at *1 ...

The Florida Supreme Court today affirmed Bartram v. U.S. Bank National Association in a virtually unanimous decision. The decision resolves a long standing controversy regarding the effect (if any) of a prior unsuccessful foreclosure action with regards to Florida's statute of limitations for mortgage foreclosure. The Court's opinion in case number SC14-1265, which was joined by all the justices with the exception of Justice Lewis (who concurred in result only and authored a short opinion of his own) and contains several important holdings. The vast majority of the opinion is ...

Florida's 4th District Court of Appeal sent the real property and mortgage world into a frenzy this week after issuing its opinion in Ober v. Town of Lauderdale-By-The-Sea, dramatically weakening the protections of Florida's lis pendens statute. It held that a lien placed on a property after the foreclosure judgment which arises from an action occurring post-judgment, is not extinguished by Florida Statute §48.23. The term most commonly used in emails and articles drafted by attorneys to describe the impact of this decision on the lis pendens statute is "eviscerate". This type of ...

The Second District Court of Appeal has become the first appellate court in Florida to hold that Florida Statute § 559.715, part of the Florida Consumer Collection Practices Act, Chapter 559, et seq. ("FCCPA"), does not apply to the note holder in a mortgage foreclosure proceeding. Deutsche Bank Nat. Trust Co. v. Hagstrom, 2D14-5254, 2016 WL 3926852, at *1 (Fla. 2d DCA 2016). In many instances, the Hagstrom holding will eviscerate a § 559.715 affirmative defense, which historically has been a popular and often effective defense to foreclosure, due in large part to the lack of case law ...

The Fourth District Court of Appeal recently affirmed its prior decision in Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274 (4th DCA 2013). Wells Fargo Bank, N.A. v. Hilary A. Williamson, Case No. 4D15-285, 2016 WL 3745477 (Fla. 4th DCA 2016). It concluded, once again, that a borrower is in the best position to know their own financial information. Therefore, if a borrower executes their loan application including false information, that borrower is precluded from raising fraud as an affirmative defense in a subsequent action absent unique circumstances. See Shahar v. Green ...

In a recent opinion, the Second District Court of Appeal explained its approval of agency relationship to establish that a plaintiff is entitled to foreclose as "holder" of the original note under Florida Statute Section 673.3011(1). Phan v. Deutsche Bank Nat'l Trust Co., Case No. 2D14-3364, 2016 WL 746400 (Fla. 2d DCA Feb. 26, 2016). Recounting the relevant facts of this case, Deutsche Bank initiated a foreclosure action against Ms. Ngoc Phan on April 28, 2009, alleging she failed to make the loan payments on her Pinellas County home since January 1, 2009. Ms. Phan denied the Bank's ...

The brief era of confusion amongst Florida trial judges regarding the standard for judging compliance with conditions precedent in residential mortgage foreclosures is hopefully coming to a close. Despite a rash of written opinions from Florida trial judges adopting a strict compliance standard for contractual conditions precedent, Florida's Fifth District Court of Appeal joined the Second and the Third District Court of Appeal in adopting a substantial compliance standard in Bank of New York Mellon, etc. v. Donna D. Johnson, 5D14-3626 (Fla. 5th DCA Jan. 29, 2016). The opinion ...

In Cottrell as Trustee v. Taylor, Bean & Whitaker Mortgage Corp., 41 Fla. L. Weekly D141f, 2D14-5885 (Fla. 2d DCA Jan. 8, 2016), Florida's Second District Court of Appeal examined the applicability of Rule 1.540(b) to notices of voluntary dismissal undertaken with the mistaken belief the plaintiff's claim was time-barred. In Cottrell, fraud was not alleged as the basis to set aside the dismissal. Instead, it was mistake. See Fla. R. Civ. P. 1.540(b)(1). The bank alleged that it dismissed its case based on advice of counsel that the claim was time-barred. However, subsequent to the ...

In Stuart-Findlay v. Bank of America, N.A., 2010CA014370, 41 Fla. L. Weekly D207a (Fla. 4th DCA 2014), Florida's Fourth District Court of Appeal held that a clerk's default entered in error should have been set aside, regardless of the defendant's alleged failure to demonstrate excusable neglect, meritorious defenses, or due diligence. The facts of the case were not in dispute. At the time the clerk's default was entered, the defendant had served various papers in the action. As a result, pursuant to Fla. R. Civ. P. 1.500 the Court, and not the Clerk, was the proper party to enter a ...

In Castellanos v. Midland Funding, LLC, 15-CV-559 (M.D. Fla. Jan. 4, 2016) the United States District Judge John Steele joined with several of his Middle District of Florida colleagues and held that the Bankruptcy Code preempts the FDCPA with respect to filing time-barred proofs of claim. In Crawford v. LVNV Funding, LLC, the Eleventh Circuit held that filing a time-barred proof of claim in bankruptcy court violated the FDCPA. 758 F.3d 1254, 1262 (11th Cir. 2014) cert. denied, 135 S. Ct. 1844 (2015). To the contrary, the Bankruptcy Code permits creditors to file proofs of claim without ...

In Helton v. Bank of America, 5D14-2632 (Fla. 5th DCA Jan. 22, 2016), Florida's Fifth Circuit Court of Appeal echoed its opinion in Webster v. Chase Home Finance, LLC, 155 So. 3d 1219, 1220 (Fla. 5th DCA 2015) that oral testimony unsubstantiated by corresponding business records, that required foreclosure notice was actually sent, is insufficient. In reversing on hearsay grounds, the Fifth DCA observed that the witness did not purport to testify from personal knowledge that the notice was sent but rather that the lenders business records reflected it was sent. However, those records ...

In a split two-one decision, Florida's Second District Court of Appeal affirmed the decision reached below and held that Fla. Stat. 559.715's notice of assignment provision does not create a condition precedent to foreclosure. The case is Brindise v. U.S. Bank, N.A., 2D14-3316, 2016 Fla. App. LEXIS 653 (Fla. 2d DCA Jan. 20, 2015). The Second DCA further certified the following question to the Florida Supreme Court as a matter of great public importance: "IS THE PROVISION OF WRITTEN NOTICE OF ASSIGNMENT UNDER SECTION 559.715 A CONDITION PRECEDENT TO THE INSTITUTION OF A FORECLOSURE ...

For years, counsel for borrowers have successfully argued that the bank failed to meet conditions precedent required under Section 559.715 of Florida's Consumer Collection Practices Act ("FCCPA"). Procedurally, this argument has been raised in the borrower's answer to the mortgage foreclosure complaint. Rather than simply alleging it as a well-pled affirmative defense, the borrower generally denies that the lender complied with all conditions precedent required to bring a mortgage foreclosure action. The borrowers' strategy is to then move for summary judgment denying ...

In Cowen Loan Servicing, LLC v. Jean Marie Delvar, 4D14-763, 2015 WL 8347300 (Fla. 4th DCA Dec. 9, 2015) the borrower alleged that he had been offered a loan modification and accepted and relied on that offer by making loan payments in accordance with the offered terms. The trial judge found that this was sufficient to state a defense to foreclosure on promissory estoppel principals and entered an order reforming the mortgage to reflect the alleged new terms. Ocwen appealed the judgment of the trial court. In reversing the trial court, the Fourth District Court of Appeal held that the ...

In the case of Sill v. JPMorgan Chase Bank National Association, Michael Sill appealed a final judgment of foreclosure entered in favor of JPMorgan Chase Bank ("Chase"), in which he asserted three issues. 4D14-1014, 2016 WL 67256 (Fla. 4th DCA Jan. 6, 2016). Of note, is Mr. Sill's third contention arguing that Chase was required to send a new notice of default after it voluntarily dismissed the first suit and before it filed the second suit. The Fourth DCA affirmed on all issues, but it wrote an opinion to address the sole issue of whether a new notice of default was required to be sent by ...

With its recently-issued opinion in Elsman v. HSBC Bank USA as Trustee for MLMI 2006-AF1, slip op. 5D14-1753, 41 Fla. L. Weekly D57b, 2015 WL 9491875 (Dec. 31, 2015), the Fifth DCA has added to a growing body of case law regarding what is required to evidence a plaintiff's standing to foreclose a mortgage. In Elsman, the plaintiff asserted standing as holder of the promissory note at issue but failed to attach an endorsed copy of the promissory note at issue to its complaint or to present any alternate evidence of its status as holder. Because the plaintiff, HSBC Bank USA, as Trustee for MLMI ...

In OneWest Bank, FSB v. Gino Alessio, et al., 4D14-1444 (Fla. 4th DCA Jan. 6, 2014), the Fourth District Court of Appeal reversed a trial judge's order dismissing a foreclosure after the defendant improperly used a motion in limine to exclude the bank's sole witness and procured dismissal of the action. While the trial court's order was ostensibly a sanction for violating the pre-trial order's requirements regarding witness and exhibit lists, the Fourth District Court of Appeal reversed because the trial court failed to consider the factors set forth in the Florida Supreme Court's ...

In Bank of New York Mellon Trust Company v. Dennis M. Conley, 4D14-2430 (Fla. 4th DCA Jan. 6, 2016), Florida's Fourth District Court of Appeal clarified the methods by which a foreclosure plaintiff can seek to enforce a note indorsed to another party. Specifically, the court held that, "[w]here a bank is seeking to enforce a note which his specially indorsed to another, the bank is a nonholder in possession." The court went on to hold that in order to prove standing as a non-holder the plaintiff must provide proof of an effective transfer, purchase of the debt, or a valid assignment. In ...

In Deutsche Bank Nat'l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida's Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on the ground that Plaintiff failed to specifically name its corporate representative that would testify at trial. Burr & Forman LLP attorneys Brendan A. Sweeney, Esq. and Douglas J. Stamm, Esq. represented Plaintiff/Appellant Deutsche Bank National Trust Company on behalf of LSF MRA Pass-Through Trust ("Deutsche Bank") at the trial and appellate level. On ...

In Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., the Second District Court of Appeal reversed a 2011 final judgment entered in favor of Kipps Colony II Condominium Association, Inc. ("Association"). See Nos. 2D14-858, 2D14-4436, 2015 WL 8321268 (Fla. 2d DCA Dec. 9, 2015). Though Bank of America had been defaulted in the Association's claim of lien foreclosure action, the appellate court found the trial court erred in denying Bank of America's Florida Rule of Civil Procedure 1.540(b) motion. Judge Black delivered the opinion of the court finding that the ...

In Surloff v. Regions Bank, et al., No. 4D14-842, 2015 WL 7275207 (Fla. 4th DCA Nov. 18, 2015), the Fourth District Court of Appeal of Florida was faced with the issue of whether Regions Bank (the "Bank") had any duty or "special relationship" with its client that would subject the Bank to liability for its client's suicide. The issue arose after the trial court granted the Bank's motion to dismiss Plaintiff Cheri Surloff's (as personal representative of the Estate of Arthur B. Surloff) (the "Plaintiff") claims of negligent undertaking and negligent infliction of emotional ...

Be careful what you wish for. That was the message Middle District of Florida Judge Carlos Mendoza delivered in Claudet v. First Federal Credit Control, Inc., 14-CV-2068 (M.D. Fla. Nov. 17, 2015) to the filer of an improper motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The Court awarded attorney's fees AGAINST the filer of the improper Rule 11 motion, finding it was filed for an improper purpose (to harass opposing counsel) and certainly not the outcome the filer had in mind. More interestingly, the Court did so without any motion from the non-movant.

In Ensler v. Aurora Loan Servs., LLC, the Fourth District Court of Appeal of Florida was faced with the issue of whether a prior mortgage loan servicer's documents could be introduced into evidence when the current servicer testified the prior servicer's records were "accurate" because "[t]hey're a reputable big company and we trust them and they trust us." At trial, Plaintiff sought to introduce the following documents into evidence (through the testimony of the current servicer): the breach letter, payment history, and power of attorney. All of these documents were authored ...

On November 23, 2015, in the first appellate decision of its kind, the District Court for the Southern District of Florida affirmed a bankruptcy court order to compel chapter 7 debtors to surrender real property by directing the debtors to cease all foreclosure defense. The decision in Failla v. Citibank, N.A. (In re Failla), case no. 15-80328, marks the first decision from a federal appellate court to address the question of whether a bankruptcy court may enter an order directing a debtor to cease defending a mortgage foreclosure suit pending in state court. On December 19, 2014, Judge ...

In Hicks v. Wells Fargo, 5D14-1748, Florida's Fifth District Court of Appeal issued the first appellate opinion to pass on the proper method of pleading a re-filed foreclosure where a prior foreclosure effort was dismissed and certain defaults are now outside the five year statute of limitations for mortgage foreclosure. The facts of the case were as follows: a foreclosure complaint was filed in September 8, 2006 premised on the borrowers' alleged failure to make the June 1, 2006 payment. The complaint was voluntarily dismissed in 2008. A new notice of default was sent in 2011 ...

In Wells Fargo Bank v. Lauri Mailloux, 2D14-5116 (Fla. 2d DCA October 30, 2015), the Second District Court of Appeal held that the inclusion of language purporting to render a notice of voluntary dismissal conditional upon an agreement between the parties which did not exist served to invalidate entirely the effect of the notice. Specifically, the Plaintiff is the case dismissed its foreclosure " expressly … conditional upon Plaintiff and the Defendants agreeing to pay their own attorneys' fees and costs." Unfortunately, as the Plaintiff stipulated for purposes of appeal, no ...

In Russell v. Nationstar Mortgage, LLC, No. 14-61977-CIV, 2015 WL 5029346, at 5 (S.D. Fla. Aug. 26, 2015), United States District Court Judge Beth Bloom issued litigious borrowers their latest setback in a large scale litigation campaign being conducted by a South Florida consumer law firm. The case is one of many filed by Loan Lawyers, LCC, on behalf of their clients alleging violations of regulations promulgated pursuant to Real Estate Settlement Procedures Act (RESPA) known as Regulation X (Reg X). Many of the cases have the same facts: Loan Lawyers sends a letter requesting a ...

On August 11, 2015, the Federal Communications Commission (FCC) fined Travel Club Marketing, Inc. and its owner $2.96 million dollars for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, et seq. The TCPA prohibits, amongst other things, the use of an automated telephone dialing system or pre-recorded voice to make telephone calls to a cellular telephone without prior express consent. The Florida based telemarketing firm is alleged to have made 185 such calls to more than 142 cellular telephone numbers, many of which were listed on the National Do ...

With its decision up on re-hearing, Florida's Third District Court of Appeal may be rethinking its decision in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014). In Beauvais, the court held that only a dismissal with prejudice will allow a cause of action for mortgage foreclosure to accrue after a failed foreclosure effort is dismissed. The effect of the decision was to render numerous foreclosures time-barred where a prior dismissal had been taken voluntarily, or otherwise without prejudice. The Third DCA acknowledged its ...

As Florida works through its foreclosure backlog, many of the cases remaining are those with complications, for example a lost promissory note. Such issues are not insurmountable, but do require an attention to detail. For example, in Boumarate v. HSBC Bank USA, N.A., 5D14-1379, 40 Fla. L. Weekly D1899a (Fla. 5th DCA August 14, 2015), Florida's Fifth District Court of Appeal provided guidance on the proof required by Florida's UCC provision for enforcing lost promissory notes. Specifically, Florida Statutes section 673.3091 provides that:

(1) A person not in possession of an ...

On July 29, 2015, Florida's Second District Court of Appeal held that substantial compliance, rather than strict compliance, is the legal standard for evaluating a foreclosing plaintiff's compliance with contractual conditions precedent to acceleration of mortgage debt (and in particular, the conditions identified in paragraph 22 of most standard residential first mortgages). Green Tree Servicing, Inc. v. Milam, 2015 WL 4549200, at 4-5, 2015 Fla. App. LEXIS 11324, at 9-11. The Milam decision built upon and clarified prior case law from Florida's Second and Fifth DCAs that ...

In Palm-Aire Vill. Private Homes Townhouse Park Bd., Inc. v. Epstein, No. COSO14-011561 (Fla. Cir. Ct. May 18, 2015), the Court was faced with the issue of whether the Homeowner successfully exercised his right of redemption pursuant to Fla. Stat. § 45.0315 even though a third-party purchaser at a foreclosure auction had tendered funds just before the Defendant did so. In this case, the property was sold at foreclosure auction on March 27, 2015 to a third-party purchaser. Three days later, the third-party purchaser tendered funds to the Clerk of Court at 9:39 a.m., but the Clerk refused ...

The UCC was supposed to make enforcing negotiable instruments a simpler, more streamlined process. It has proven anything but in Florida. Continuing a trend that now stretches back years, mortgage lenders have had an increasingly tough time proving standing to the satisfaction of Florida's District Courts of Appeal in the last few months. Florida's Fourth District Court of Appeal has long been the most vocal on the standing issue. See e.g. McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170 (Fla. 4^th DCA 2012). The last few months have been no different. One opinion of particular ...

In Arrasola v. MGP Motor Holdings, LLC, 3D15-381, 40 Fla. L. Weekly D1837b (Fla. 3d DCA August 5, 2015) the Florida Third District Court of Appeal was asked to resolve whether a court or an arbitrator should decide if an automobile purchase agreement containing an arbitration provision was abandoned or terminated by the parties and/or whether or not the arbitration provision itself was unconscionable. While it has become common place for arbitration agreements themselves to contain provisions which give questions of enforceability and arbitrability to the arbitrator, the ...

The opinion of Florida's Third District Court of Appeal in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) has been a lightning rod for criticism from federal courts in Florida. The opinion, which holds that only a dismissal with prejudice will serve to reset the statute of limitations for mortgage foreclosure following a failed foreclosure attempt, has already been rejected by three separate opinions of United States District Courts in Florida. See LNB-017-13, LLC v. HSBC Bank USA, No. 1:14-CV-24800-UU, 2015 WL 1546150 (S.D ...

Florida's Third District Court of Appeal shocked many court watchers with its opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) when it created a split of authority on Florida's statute of limitations for mortgage foreclosure. Before Beauvais, Florida's case law was consistent that a dismissal, be it with or without prejudice, permitted new non-time-barred causes of action for foreclosure to accrue based upon post-dismissal breaches of mortgage covenants. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d ...

In David L. Ham, Jr. v. Nationstar Mortgage, LLC, 1D14-4024 (Fla. 1st DCA May 12, 2015), the First District Court of Appeals ("First DCA") reversed the trial court's Final Judgment of Foreclosure in favor of Nationstar for failing to furnish competent and substantial evidence overcoming Borrower's standing defense, and that the original Plaintiff possessed the original note, indorsed in blank, at the inception of the lawsuit. Here, 123 Loan, LLC ("123 Loan") originated the subject loan in 2004, and allegedly assigned the note to Aurora Loan Services, LLC ("Aurora") at some unknown ...

In Gorel v. Bank of New York Mellon, 5D13-3272 (Fla. 5th DCA May 8, 2015) Florida's Fifth District Court of Appeal offered relief to increasingly popular arguments using minor defects in paragraph 22 notices of default as a defense to foreclosure. It has become popular among the foreclosure defense bar to point to minor variances between the language used in notices of default and the express language of paragraph 22, and assert that because the notices do not strictly conform word for word with paragraph 22, that foreclosure should be denied. These arguments have had some measure of ...

In Deutsche Bank Nat'l Trust Co. v. Adriana Avila-Gonzalez, 2015 WL 2089094 (Fla. 3d DCA May 6, 2015), the Florida Third District Court of Appeal reversed a trial court order that dismissed a foreclosure action with prejudice and cancelled the note and mortgage. Central to the Court's ruling was the determination that the Bank was negligent in asserting the note was lost, by pleadings and by affidavit, when the note was actually in the servicing agent's possession for the duration of the foreclosure action. Contrary to the trial court's ruling, the Court found the Bank's negligence did ...

In Russell v. Aurora Loan Services, LLC, 40 Fla. L. Weekly D967a (Fla. 2d DCA Apr. 24, 2015), Florida's Second District Court of Appeal added to the emerging line of case law regarding the proof required to establish standing in mortgage foreclosure actions. There, the Second DCA held that substituted party-plaintiff, Nationstar Mortgage, LLC, failed to establish at trial that either Nationstar or the original plaintiff, Aurora Loan Services, LLC, had standing as the servicer acting on behalf of the real party in interest to foreclose against borrower William Russell. As a result ...

In Colson v. State Farm Bank, F.S.B., Case No. 2D13-5526, Florida's Second District Court of Appeals just reversed a final judgment of foreclosure entered in favor of the plaintiff, finding that a "total lack of evidence as to damages" required reversal and remand for further proceedings. In February 2009, State Farm as the plaintiff initiated a mortgage foreclosure action against the Colsons. Through its sole witness, an employee of its servicer, State Farm introduced the following into evidence at the November 2013 trial: a power of attorney between State Farm and the servicer, a ...

In LNB-017-13, LLC v. HSBC Bank USA, N.A., 14-cv-24800-UU, 2015 WL 1546150 (S.D. Fla. April 7, 2015), Judge Ursula Ungaro revisited the familiar topic of the statute of limitations for mortgage foreclosure and previously dismissed foreclosure actions. In two prior opinions on the subject, Judge Ungaro dismissed efforts to quiet title to mortgages where the borrowers had alleged the expiration of the statute of limitations as grounds for removing valid mortgage liens from title. See Lopez v. HSBC Bank, N.A., 1:14-cv-20798-UU, 2014 WL 3361755, at 1 (S.D. Fla. Apr. 28, 2014); Torres ...

Imagine your company or client was sued for an alleged violation of the Florida Consumer Collections Practices Act ("FCCPA"). The plaintiff has an outstanding debt that is greater than the damages sought in the FCCPA action. Consequently, you want to know if you can counterclaim to setoff (or "offset") the damages sought in the FCCPA lawsuit from the underlying debt. Though the Eleventh Circuit does not provide steadfast answers, it sheds some light on the topic, albeit in a bankruptcy context. In Brook v. Chase Bank USA, N.A., 566 F. App'x 787 (11th Cir. 2014), the Eleventh Circuit ...

The Florida Third District Court of Appeal released an opinion which dramatically alters the landscape of foreclosure law in Florida. The opinion is Deutsche Bank Trust Company Americas, v. Harry Beauvais, et al., No. 3D14-575, and it rewrites much of what you thought you knew about the statute of limitations for mortgage foreclosure. Specifically, the opinion adopts an extremely narrow reading of the Fifth District Court of Appeal's ruling in Bartram v. U.S. Bank N.A., 140 So. 3d 1007 (Fla. 5th DCA 2014) and certifies conflict with the Fourth District Court of Appeal's ruling in ...

In May 2013, a ruling from the U.S. District Court for the Southern District of Florida caused great concern among creditors and debt collectors by taking an unprecedented stance against the supremacy of orders issued by the Federal Communications Commission ("FCC") regarding the Telephone Consumer Protect Act ("TCPA"). In Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013), Judge Robert N. Scola, Jr. granted partial summary judgment on the plaintiff's TCPA claims against the defendant, Gulf Coast, which had obtained the plaintiff's cell phone ...

In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...

In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...

In Evergrene Partners, Inc. v. Citibank, N.A., 39 Fla. L. Weekly D1342, 2014 WL 2862392 (Fla. 4th DCA June 25, 2014) Florida's Fourth District Court of Appeal affirmed dismissal of a complaint which sought to cancel a residential mortgage by alleging that the statute of limitations had run following dismissal of a failed foreclosure effort by the lender. This decision should have a dramatic effect on similar such claims statewide, and even nationally. It has become increasingly common for borrowers to seek to quiet title or cancellation of mortgages once the applicable statute of ...

In Ros v. Lasalle Bank, N.A., et al., 14-CIV-22112-BLOOM/VALLE (S.D. Fla. July 18, 2014) the Southern District of Florida became the first United States District Court to apply the holding in Evergrene Partners, Inc. v. Citibank, N.A., 39 Fla. L. Weekly D1342 (Fla. 4th DCA 2014) regarding efforts quiet title of a mortgage based upon the alleged expiration of the statute of limitations for mortgage foreclosure. As discussed in previous posts, after a failed foreclosure lawsuit occurs, it has become common for borrowers to file quiet title suits which allege that the applicable five ...

Burr & Forman LLP recently secured an important holding on an issue of first impression regarding the running of the statute of limitations in the FDCPA and FCCPA context. More specifically, in Gregory Crossman v. Asset Acceptance, LLC, 5:14-cv-00115-WTH-PRL, Judge Hodges, sitting in a Middle District of Florida trial court, held that inaction cannot form the basis of a continuing violations theory under the FDCPA or FCCPA, the delayed discovery doctrine does not apply to same, and the recording of a satisfaction of judgment, albeit untimely, renders a § 701.04, Florida Statutes ...

Chief Judge Karen S. Jennemann of the United States Bankruptcy Court for the Middle District of Florida, Orlando Division recently held in a soon-to-be published opinion that chapter 7 debtors who state an intention to surrender real property to the mortgagee must perform on that intention by not impeding or interfering with the state court foreclosure process. In the case, In re Plummer, - B.R. -, 2014 WL 1248039 (Bankr. M.D. Fla. March 25, 2014), the Bankruptcy Court also held that, while the statute is not a mere notice provision, surrender does not require a debtor to take any ...

In Alaimo v. HSBC Mortgage Services, Inc., 2014 WL 930787 (S.D. Fla. March 10, 2014) the Honorable Robert N. Scola extended his previous decision in Signori v. Fed. Nat'l Mortg. Assoc., 934 F.Supp.2d 1364, 1367 (S.D.Fla. 2013) holding that an assignee of a mortgage loan cannot be held liable for its servicer's violation of section 1641(f)(2) of the Truth in Lending Act ("TILA") or section 226.36(c)(1)(iii) or Regulation Z. Section 1641(f)(2) requires a servicer to identify and provide certain contact information for the owner or master servicer of a borrower's loan upon written ...

In Hunter v. Aurora Loan Services, LLC, Case No. 1D12-6071 (Fla. 1st DCA March 4, 2014), the First District Court of Appeals found that a lender must lay the necessary foundation under the business records exception to admit documentation from a prior servicer into evidence. Florida Statutes, § 90.803(6) states that the party seeking admission of hearsay under the business records exception must establish four things. First, that the record was made at or near the time of the event; second, that the record was made by or from information transmitted by a person with knowledge; third ...

In a case of first impression, the March 21, 2014 opinion U.S. Bank National Association, as Trustee for the GSAMP Trust 2006-NCI Mortgage Pass-Through Certificates, Series 2006-NCI v. Jose Busquets, Case No. 2D13-280, the Second District Court of Appeal upheld specific language in a residential mortgage foreclosure notice of default and intent to accelerate as compliant with the terms of the mortgage. This case represents the first appellate ruling in Florida addressing certain specific language in nearly ubiquitous "paragraph 22" notice of default and intent to accelerate ...

In Bermuda Dunes Private Residents, etc. v. Bank of America, 5D12-4218, 2014 WL 885720 (Fla. Dist. Ct. App. Mar. 7, 2014) Florida's Fifth District Court of Appeal issued an important opinion concerning the so-called "safe-harbor" for past due condominium assessments created by Fla. Stat. § 718.116(b) for those who acquire title to condominiums from the foreclosure of a first mortgage. The facts of the case were as follows: Bank of America held a first mortgage on a condominium, and assigned the mortgage to Federal Home Loan Mortgage Corporation ("Freddie Mac"). Freddie Mac then ...

In Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-CV-1459-ORL, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013), a class action brought under the Telephone Consumer Protection Act ("TCPA"), the Middle District of Florida held that the plaintiff failed to state a claim because he had admittedly provided his cell phone number to the defendants, an act constituting "express consent" to be autodialed. The plaintiff in Murphy alleged that he had provided his cell phone number to the defendants, three affiliated companies involved in the collection and distribution of blood plasma, in ...

In Shadrach Lewis v. Marinosci Law Group, P.C., No. 13-61676-CIV, 2013 WL 5789183 (S.D. Fla. Oct. 29, 2013), the Southern District of Florida denied a defendant's motion to dismiss and rendered an important decision regarding a notice provision contained in a foreclosure proceeding as being a potential violation of the Fair Debt Collection Practices Act ("FDCPA"). Specifically, the plaintiff alleged that the notice provision, as required by the FDCPA, was nevertheless a violation of 15 U.S.C. § 1692e generally as well as § 1692e(10), in particular, as the statement relating to ...

In Keim v. ADF MidAtlantic, LLC, 12-80577-CIV, 2013 WL 3717737 (S.D. Fla. 2013), the Southern District of Florida granted a motion to dismiss a TCPA class action complaint, holding that the defendants' Rule 68 offer of full potential relief to the named plaintiff rendered said plaintiff's individual claims moot and, in turn, that the Court lacked subject matter jurisdiction over the claims. The plaintiff in Keim filed a class action complaint for statutory damages and injunctive relief under the Telephone Consumer Protection Act (the "TCPA") for sending unsolicited commercial ...

In early 2010, the Florida Supreme Court amended Rule 1.110(b) of the Florida Rules of Civil Procedure to require that all residential foreclosure complaints be verified. The Rule requires a simple recitation:

Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

In City of Palm Bay v. Wells Fargo Bank, N.A., No. SC11-830 (Fla. May 16, 2013), the Supreme Court of Florida ruled that a municipal ordinance superiority provision is invalid as conflicting with state law. The certified question the Court considered was the following: Whether under Article VIII, section 2(b), Florida Constitution, section 166.021, Florida Statues and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement lien, created pursuant to a code enforcement board order and recorded in the public records of ...

In Mais v. Gulf Coast Collection Bureau, Inc., the United States District Court for the Southern District of Florida addressed the question of whether providing one's cell phone number during a hospital admission amounts to prior express consent under the TCPA to receive collection calls arising out of the hospital visit. __ F. Supp. 2d __, 2013 WL 1899616, at 11 (S.D. Fla. May 8, 2013). Under the particular facts of Mais, the court answered the question in the negative. During a hospital visit, the plaintiff's wife had provided the plaintiff's cell phone number to the hospital's ...

In Wells Fargo Bank v. Bohatka, et al., 38 Fla. L. Weekly D885a (Fla. 1st DCA April 22, 2013), the Florida First DCA reversed dismissal with prejudice of a residential foreclosure complaint. While the appellate court agreed that dismissal of the complaint was proper, it held that dismissal with prejudice was not. The trial court erred by going beyond the four corners of the complaint on the borrowers' motion to dismiss. In its foreclosure complaint, Wells Fargo alleged that it was the owner and holder of the subject promissory note and mortgage by virtue of an equitable transfer which ...

The Florida Fourth DCA opinion in Shahar v. Green Tree Servicing, 38 Fla. L. Weekly D563d (Fla. 4th DCA March 6, 2013) demonstrates the dangers of inadequately addressing each and every affirmative defense raised by a foreclosure defendant. In Shahar, the appellate court reversed the trial court's entry of summary judgment where the lender did not factually or legally refute the defendants' unclean hands defense. The defendants' Verified Amended Answer, Affirmative Defenses and Counterclaim included allegations that the lender had engaged in a variety of inequitable and ...

On March 7^th, the Florida Supreme Court held that the economic loss rule (the doctrine that an economic loss is not recoverable under a tort theory unless accompanied by physical property damage or personal injury) applies only to products liability cases, effectively eliminating use of the doctrine in consumer cases. Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Cos., Inc., 2013 WL 828003 (Fla. Mar. 7, 2013). In Tiara, a condominium association sued its insurance broker under both tort and contract theories for failing to inform the association that it was underinsured for ...

In Prevratil v. Deutsche Bank Nat'l Trust Co., 38 Fla. L. Weekly D569 (Fla. 2d DCA March 8, 2013), the Florida Second District Court of Appeal continue the trend of Florida Appellate Court reversals of over-zealous trial court judges reading more into the requirement in Rule 1.110(b) that foreclosure complaints be verified. Previously, Florida's appellate courts have held that the verification of a foreclosure complaint need not comply with Fla. Stat. 92.525 (requiring attestation that facts "true" without qualification as to the signors knowledge and belief), see Trucap ...

The Florida Supreme Court's opinion in Pino v. Bank of New York, 38 Fla. L. Weekly S78a (Fla. Feb. 7, 2013) is an important opinion concerning voluntary dismissal of actions where fraud on the Court has been alleged by the Defendant. In Pino, the Florida Supreme Court upheld the Fourth District Court of Appeal, and held that a trial court lacks jurisdiction to reinstate a dismissed action to award sanctions for fraud on the Court, except when the fraud, if proven, resulted in plaintiff securing affirmative relief to the detriment of the defendant, and upon obtaining that relief, the ...