Bankruptcy Court Order Compelling Surrender of Property Upheld on Appeal
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...
View ArticleBusiness Records Hearsay Exception Applicable Only When Proper Foundation is...
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...
View ArticleFederal Court Awards Sanctions Against the Filer of Improper Rule 11 Motion
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...
View ArticleLender Not Liable for Client’s Suicide
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...
View ArticleThe Priority of Interests in Real Estate
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...
View ArticleSupreme Court Reaffirms Arbitration Class-Waivers
The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal...
View ArticleBurr Scores Significant Appellate Victory in Florida
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...
View ArticleFlorida’s Fourth DCA Provides Clarity on Proofs Required to Enforce...
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...
View ArticleFlorida Court Reverses Dismissal After Trial Judge Improperly Excludes Bank’s...
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...
View ArticleCommentary on Elsman: Copy of Note Attached to Complaint May Evidence...
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...
View ArticleFlorida Appellate Courts Reject New Title Holder’s Efforts to Intervene In...
As the foreclosure crisis dies down, lenders are seeing more creative tactics employed to stall foreclosures. One tactic is that during the pendency of the first lien holder’s foreclosure, the borrower...
View ArticleLenders Are Not Necessarily Required to Send a Duplicative Pre-suit Notice in...
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...
View ArticleFlorida Appellate Court Rejects Defense of Oral Loan Modification Defense on...
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...
View ArticleFlorida Appellate Court Holds that Fla. Stat. 559.715 Notice of Assignment...
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...
View ArticleSupreme Court Holds Unaccepted Settlement Offer to Satisfy Named Plaintiff’s...
The writing was on the wall following Justice Elena Kagan’s dissent in Genesis Healthcare Corp. v. v. Symczyk, 133 S. Ct. 1523 (2013), wherein Justice Kagan blasted the view that an unaccepted offer of...
View ArticleFlorida’s Second DCA Reverses Dismissal of Foreclosure in Favor of Borrowers...
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“)....
View ArticleCircuit Court Affirms Bankruptcy Order Requiring Creditor to Reimburse...
In the case of Domistyle, Inc., 14-41463 (5th Cir. Dec. 29, 2015), the United States Court of Appeal for the Fifth Circuit affirmed an order of the bankruptcy court requiring a secured creditor to...
View Article2nd Circuit Rules Bankruptcy Code Does Not Preclude FDCPA Suit in District Court
In Garfield v. Ocwen Loan Servicing, LLC, 15-527 (2d Cir. Jan. 4, 2016), the Second Circuit Court of Appeals examined whether a debtor who has been discharged in a bankruptcy can sue in a district...
View ArticleFlorida’s Fifth DCA Echoes Prior Ruling – Must Introduce Additional Evidence...
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...
View ArticleM.D. Fla. Holds Bankruptcy Code Preempts FDCPA For Filing Time Barred Proofs...
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...
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