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Posts tagged as “Mortgage Law”

Florida Court Holds No Equitable Lien by Ratification as to Non-Signing Owners

Florida’s Third District Court of Appeal recently reversed a trial court’s mortgage foreclosure judgment against non-signatory co-owners, holding that ratification did not apply where the non-signatory owners received no benefit from the loan proceeds and did not authorize an attorney-in-fact to sign the mortgage on their behalf.  In so ruling, the Appellate Court rejected the mortgagee’s efforts to impose an equitable lien on the collateral property. A copy of the opinion in Wells Fargo Bank, N.A. v. Clavero, et al. is available at:  Link to Opinion. In October 2005, a mother and father, who had purchased their home more than 30 years…

Florida Court Confirms Substituted Foreclosure Plaintiff Must Prove Standing of Original Plaintiff

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…

MD Fla. Disagrees With, Distinguishes Beauvais in Fla. Foreclosure Statute of Limitations Case

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…

Florida Court Cuts Off Extensive Discovery Requests to Mortgagee as to Standing, Satisfaction of 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…

Fla. App. Ct. (3rd DCA) Applies ‘After Acquired Title’ Doctrine to Save Mortgage Loan

The Third District Court of Appeal of the State of Florida recently affirmed the entry of summary judgment in favor of a mortgagee and against the purchaser at a condominium association assessment foreclosure sale based on the after-acquired title doctrine. A copy of the opinion is available at: Link to Opinion. In July 2007, the borrowers obtained a mortgage loan secured by a condominium unit at a luxury building in Miami Beach. Although the mortgage contained the usual covenant that the borrowers owned legal title to and had the right to mortgage the property, the property was in fact owned…

Florida Appellate Court Confirms Mortgagee Need Only Prove FMV to Obtain Foreclosure Deficiency Judgment

The District Court of Appeal of Florida, Fifth District, recently reversed the denial of a motion for deficiency judgment in a foreclosure action, holding that the trial court erroneously required the mortgagee to introduce into evidence the final judgment of foreclosure previously entered in the same case to demonstrate the amount of debt owed. A copy of the opinion is available at:  Link to Opinion. The trial court granted summary judgment of foreclosure in favor of the mortgagee, specifically reserving jurisdiction to enter further orders, including deficiency judgments.  The borrower did not appeal the judgment of foreclosure. The mortgagee then…

Florida Appellate Court Holds Statute of Limitations Did Not Bar Re-Filed Foreclosure

The District Court of Appeal of the State of Florida for the First District recently held that the statute of limitations does not bar a second mortgage foreclosure action based on a subsequent default, regardless of whether the first case was dismissed with or without prejudice. A copy of the opinion is available at: Link to Opinion. The borrowers defaulted on their mortgage in February of 2007. In April of 2007, the plaintiff mortgagee’s predecessor in interest accelerated the note based on the February, 2007 breach and sued to foreclose the mortgage. The case was dismissed without prejudice in October…

9th Circ. Reverses Denial of Class Certification in RESPA Section 8 Action

The U.S. Court of Appeals for the Ninth Circuit recently held that the district court abused its discretion in denying a plaintiff’s motion to certify a class of home buyers alleging that a scheme involving a title insurer buying minority interests in title agencies in exchange for referral of future title insurance business violated the federal Real Estate Settlement Procedures Act (RESPA), affirming in part, vacating in part and remanding for further proceedings. In so ruling, the Court held that the Consumer Financial Protection Bureau’s position in its amicus brief was not entitled to Chevron deference, because the CFPB was…

Florida Court Rejects Mortgagee’s Attempt to Limit Liability for HOA Dues After Foreclosure

The Florida Second District Court of Appeal recently reversed a trial court’s order in a mortgage foreclosure action limiting the liability of a loan servicer who acquired title by foreclosure for past-due condominium assessments, holding that the trial court lacked subject matter jurisdiction because the specific issue of assessments was not litigated or adjudicated by the trial court. A copy of the opinion is available at:  Link to Opinion. The owner of a condominium unit failed to pay his mortgage loan, resulting in the loan servicer suing to foreclose the mortgage and obtaining title at the foreclosure sale as the…

Florida Court: ‘Substantial Compliance’ is Sufficient for Mortgage Notice of Default

The Florida Second District Court of Appeal recently upheld a mortgagee’s notice of default that substantially complied with the applicable provision of the mortgage, ruling that strict compliance is not required. A copy of the opinion is available at:  Link to Opinion. The borrowers obtained a mortgage in May 2007 and defaulted in November 2008. In December 2008, the mortgagee sent the borrowers a letter demanding that they cure the default within 30 days, providing the amount needed to reinstate the loan, and warning that failure to cure would result in acceleration and foreclosure. In February 2009, the mortgagee filed…

Ninth Circuit Rejects Claims of Escrow Errors Against Non-Servicer Assignee of Mortgage Loan

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a district court’s dismissal of a borrower’s claims for breach of contract and breach of fiduciary duty relating to alleged failures to properly disburse escrow amounts against a non-servicer assignee of a mortgage loan. In so ruling, the Court confirmed that Washington does not bar splitting the loan servicing duties from the right to receive payment under the note. A copy of the opinion is available at: Link to Opinion. The deed of trust between the borrower and the loan originator required the borrower to pay the hazard insurance…

First Circuit Holds Mortgagor Cannot Sue Mortgagee to Quiet Title in Title Theory State

The U.S. Court of Appeals for the First Circuit recently affirmed the dismissal of two mortgagors’ quiet title allegations against a mortgagee, holding that the plaintiff mortgagors could not assert a quiet title claim under Rhode Island law against the mortgagee defendants because Rhode Island is a title theory state, and the mortgagors’ equitable interest in title to the property at issue was not adverse to the mortgagee’s legal interest in title. A copy of the opinion is available at: Link to Opinion. The plaintiff mortgagors (one of whom is an attorney) claimed uncertainty as to which entity held an…