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Banking & Financial Services E-Note - April 2017

In an article published in the Winter/Spring 2017 issue of Thomson Reuter’s Real Estate Finance Journal, Samantha Alves Orender provides guidance on how debtors who misuse collateral may be at risk of losing the benefit of...more

11th Circuit Clarifies FDCPA/FCCPA Issues Re Periodic Mortgage Statements After Bankruptcy

In Helman v. Bank of America, 15-13672, 2017 WL 1350728 (11th Cir. April 12, 2017) the Eleventh Circuit Court of Appeal clarified important issues regarding the use of periodic mortgage statements after a bankruptcy...more

Banking & Financial Services E-Note - March 2017

In an article published in the April 2017 issue of The Journal of Bankruptcy Law, Jonathan Sykes and Correy Karbiener provide insight on whether § 546(e) of the Bankruptcy Code protects transfers made to repay commercial...more

Florida Supreme Court Refuses to Reconsider Landmark 2016 Ruling on Statute of Limitations for Mortgage Foreclosure

On March 16, 2017, the Florida Supreme Court denied motions for rehearing and/or clarification filed by petitioners Lewis Brook Bartram, the Plantation at Ponte Vedra, and Gideon M.G. Gratsiani. All three petitioners...more

Banking & Financial Services E-Note - November 2016

Employers across the country can now exhale. On Tuesday, November 22, 2016, a Texas federal court entered a nationwide injunction blocking the U.S. Department of Labor’s (“DOL”) new federal overtime rules from taking effect...more

Florida Supreme Court Issues Landmark ruling on Statute of Limitations for Foreclosure: Bartram Affirmed.

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...more

Bankruptcy Petition Costs Litigant Right to Appeal State Court

Learning the interplay between state rules of judicial procedure and federal bankruptcy law can be a daunting undertaking, but the pitfalls of failing to do so can be severe. A recent example of the importance of being...more

Florida’s Third DCA Reverses Course on Statute of Limitations for Mortgage Foreclosure

Florida’s Third District Court of Appeal retreated from one of its most unpopular opinions this morning. The Third DCA surprised many with its original ruling in Deutsche Bank Trust Company Americas v. Beauvais¸ 3D14-575 when...more

11th Circuit Holds Assignee Cannot Be Liable For Failure to Provide Payoff Statement Under TILA

On March 1, 2016, the Eleventh Circuit Court of Appeal held that the assignee of a loan cannot be liable for the failure to provide a payoff statement as required by the Truth in Lending Act, 15 USC 1639g. The case is Evanto...more

Did the Fourth Circuit Just Create a Cause of Action for “Unconscionable Inducement” Under West Virginia Law?

In McFarland v. Wells Fargo Bank, N.A., 14-2126 (4th Cir. Jan. 15, 2016), the Fourth Circuit Court of Appeals examined the argument that a loan was substantively unconscionable because it vastly exceeded the worth of the...more

Ninth Circuit Affirms Denial of TCPA Class Cert. On Predominance/Ascertainability Grounds

On January 12, 2016, the Ninth Circuit affirmed the denial of class cert. in a Telephone Consumer Protection Act (TCPA), 47 USC 227 action on  predominance and superiority grounds in the case Paul Gannon v. Network Telephone...more

Florida’s 5th DCA Joins 2d and 3d, Expressly Adopts Substantial Compliance Standard

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...more

Appellate Court Refuses to Vacate Voluntary Dismissal Undertaken With Mistaken Belief Claim Was Time-Barred

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...more

Errant Clerk’s Default Must be Set Aside Regardless of Excusable Neglect, Due Diligence, Meritorious Defenses

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,...more

Banking & Financial Services E-Note - January 2016

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...more

M.D. Fla. Holds Bankruptcy Code Preempts FDCPA For Filing Time Barred Proofs of Claim

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...more

Florida’s Fifth DCA Echoes Prior Ruling – Must Introduce Additional Evidence that Required Notice Was Actually Sent

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...more

2nd 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 court under the Fair Debt...more

Circuit Court Affirms Bankruptcy Order Requiring Creditor to Reimburse Trustee for Maintaining Collateral

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 reimburse the trustee for...more

Florida Appellate Court Holds that Fla. Stat. 559.715 Notice of Assignment Provision is Not a Condition Precedent to Foreclosure

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...more

Florida Appellate Court Rejects Defense of Oral Loan Modification Defense on Statute of Frauds Grounds

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...more

Florida Appellate Courts Reject New Title Holder’s Efforts to Intervene In Foreclosure Where Title Taken After Lis Pendens...

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 will convey title, or...more

Florida Court Reverses Dismissal After Trial Judge Improperly Excludes Bank’s Trial Witness, Dismisses Case

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...more

Florida’s Fourth DCA Provides Clarity on Proofs Required to Enforce Promissory Note Specially Indorsed to Another

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...more

Banking & Financial Services E-Note - December 2015

In an article published by Financial Advisor on December 8, 2015, Burr & Forman Associate Rhett Owens discusses a proposed rule change from the U.S. Department of Labor (DOL) regarding variable annuities (VAs) that’s set to...more

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