The District Court of Appeal of the State of Florida, Fifth District, recently reversed the entry of a judgment in favor of two borrowers in a foreclosure action, and confirmed that a current servicer does not need to present testimony from an employee of a prior servicer in order to admit the business records of the prior servicer into evidence at trial. A copy of the opinion is available at: Link to Opinion. The borrowers obtained their mortgage loan in 2006. They defaulted, and the prior servicer brought a foreclosure action in 2009. At that time, the borrowers sent a…
Posts published by “Maurice Wutscher LLP”
The attorneys of Maurice Wutscher are seasoned business lawyers with substantial experience in business law, financial services litigation and regulatory compliance. They represent consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. They have defended scores of putative class actions, have substantial experience in federal appellate court litigation and bring substantial trial and complex bankruptcy experience. They are leaders and influencers in their highly specialized area of law. They serve in leadership positions in industry associations and regularly publish and speak before national audiences.
The District Court of Appeal of Florida, Second District, recently reversed a final judgment of foreclosure where a substituted plaintiff failed to prove the original plaintiff had standing when suit was filed. In so ruling, the Appellate Court confirmed that it is not enough for a plaintiff to prove standing when the case is tried, it must also prove standing when the complaint was filed. A copy of the opinion is available at: Link to Opinion. A mortgagee initiated a residential foreclosure action after borrowers defaulted, and the borrowers responded that the mortgagee lacked standing. An assignee was then substituted…
The Court of Appeal of the State of Florida, Fifth District, recently affirmed the dismissal of a check payee’s claims against the drawee bank for charging a fee to cash the check in person, holding that while section 655.85, Florida Statutes, prohibits the bank from charging such a fee, it does not create a private cause of action. However, the Court also held that federal law did not preempt the state “anti-check cashing fee” statute, even as applied to an out-of-state insured state bank. A copy of the opinion is available at: Link to Opinion. The payee of a check…
The Court of Appeal for the Third District of the State of Florida recently held that the trial court had subject matter jurisdiction to hear a common law action to recover a deficiency judgment after an earlier residential mortgage foreclosure action in the same court was already completed. The Court reasoned that the applicable statute expressly provided for such a common law action, and although the foreclosure judgment reserved jurisdiction to adjudicate any claim seeking a deficiency, it neither granted nor denied it. A copy of the opinion is available at: Link to Opinion. A mortgage loan servicer obtained a…
The U.S. District Court for the Middle District of Florida recently confirmed that Florida’s statute of limitations did not bar a mortgagee from filing a new foreclosure action based on non-payment or other kinds of defaults within the past five years, even where the prior foreclosure action was dismissed without prejudice and acceleration of the mortgage occurred more than five years prior to the second foreclosure action. In so ruling, the Court dismissed an amended complaint for declaratory judgment seeking to invalidate a mortgage. A copy of the opinion is available at: Link to Opinion. A property owner sought a…
The Second District Court of Appeal of the State of Florida recently affirmed an award of attorney’s fees and costs to two borrowers, even though the borrowers moved for fees and costs more than 30 days after the mortgagee filed a notice of voluntary dismissal that was expressly made conditional upon the parties “agreeing to pay their own attorneys’ fees and costs.” In so ruling, the Appellate Court confirmed that a conditional notice of voluntarily dismissal was ineffective to commence the 30-day period within which to move for attorney’s fees and costs under Florida law. A copy of the opinion…
The Illinois Appellate Court, First District, recently reversed a trial court’s ruling that lack of standing in a mortgage foreclosure case was not an affirmative defense. The Court further remanded the case to allow the borrowers to take discovery, which the Court held was improperly denied by the trial judge. A copy of the opinion is available at: Link to Opinion. A mortgagee filed a foreclosure action, alleging that the borrowers failed to make payments when due. In response, the borrowers filed an answer, which included affirmative defenses of alleged lack of standing and alleged lack of capacity to sue.…
The U.S. Court of Appeals for the Second Circuit recently held that identity theft claims under New York’s Fair Credit Reporting Act based on a bank’s alleged vicarious liability for identity theft supposedly perpetrated by its employees are not preempted by the federal Fair Credit Reporting Act (FCRA). However, to the extent that the claims could arguably be read to include the theory that the bank was liable because it furnished false information to consumer reporting agencies, the Court held that such claims are preempted under the FCRA because they plainly concern the bank’s legal responsibilities as a furnisher. A…
The Appellate Division of the Circuit Court of the 15th Judicial Circuit in Palm Beach County, Fla. recently held that a first mortgagee who took title by foreclosure was not liable for homeowner’s association assessments coming due before it acquired title because the association’s declaration of restrictive covenants absolved a first mortgagee from liability for assessments coming due before it acquires title. A copy of the opinion is available at: Link to Opinion. An individual purchased real property in a subdivision that was subject to a recorded declaration of covenants, restrictions, conditions and easements. The homeowner defaulted on her mortgage…
The District Court of Appeal of Florida, First District, recently denied a property owner’s effort to appeal the trial court’s order limiting the property owner’s extensive discovery requests to a mortgagee relating to standing and satisfaction of mortgage. In so ruling, the Appellate Court concluded that the trial court’s order limiting discovery did not effectively eviscerate the property owner’s affirmative defenses. A copy of the opinion is available at: Link to Opinion. A property owner propounded broad discovery requests related to the defenses that the mortgagee lacked standing to foreclose; and that all mortgages on the property had been satisfied…
The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression, recently held that section 1328(f) of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which bars so-called “Chapter 20” debtors from receiving a discharge at the conclusion of their Chapter 13 reorganization if they received a Chapter 7 discharge within four years of filing the petition for Chapter 13 relief, does not prevent a debtor from voiding a secured creditor’s lien under section 506(d) of the Bankruptcy Code. A copy of the opinion is available at: Link to Opinion. In 2007, husband and wife…
The U.S. District Court for the Middle District of Florida recently denied a motion to dismiss an amended complaint alleging that a time-share association violated the Florida Consumer Collection Practices Act (FCCPA) and the federal Telephone Consumer Protection Act (TCPA), holding that: A debtor need not use any precise language or magic word to notify a debt collector that the debtor is represented by legal counsel with respect to a debt; A voicemail message merely asking the debtor to return the call to discuss the debt was a debt collection communication; and Declaratory relief may be available under the TCPA.…