Scott J. Kennelly

Scott J. Kennelly

Rogers Towers

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Rights of Creditors to Judicial Dissolution of Corporations

In certain instances, when a creditor has a claim against an insolvent corporation, it may be entitled to seek judicial dissolution of the entity in an effort to collect whatever assets the entity may hold. The Florida...more

5/20/2015 - Business Assets Corporate Dissolution Creditors Insolvency Judicial Dissolution

Depositions: “Invoking the Rule” To Exclude Persons From Attending Depositions

Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony of other...more

4/29/2015 - Depositions Rules of Civil Procedure Sequestration Witnesses

Lenders Still Struggle with Issue of Standing – a New Spate of Cases out of the Fourth DCA

We have written multiple blogs about standing to foreclose, but a new spate of recent cases out of Florida’s Fourth District Court of Appeals demonstrate that lenders still struggle with the issue of standing. On March 25,...more

4/8/2015 - Appeals Foreclosure Loan Documentation Mortgage Lenders Mortgages Standing

Bank of Manhattan v. FDIC

We have previously posted about some of the protections available under FIRREA to the FDIC as Receiver of a failed bank, including the FDIC’s power to enforce contracts of the failed bank under 12 U.S.C. § 1821. A recent...more

3/13/2015 - Banks FDIC FIRREA Insolvency Participation Agreements

Foreclosure Sales in Florida’s Federal Courts

Although typically foreclosure actions are brought in state court, lenders may occasionally find themselves pursuing foreclosure in federal court. Although the costs and procedures for conducting the foreclosure sale are...more

2/11/2015 - Foreclosure Jurisdiction Mortgage Lenders Mortgages Special Master

IBERIABANK v. Beneva

When an institution acquires a failed bank from the FDIC as Receiver and then faces litigation arising from the failed bank’s loans, FDIC “special powers” can often be asserted by the institution, as assignee of the FDIC as...more

1/16/2015 - Appeals Assignments Banks Commercial Leases Commercial Loans FDIC Lease Termination Receivership Secured Lenders Special Powers

Florida Deficiency Proceedings: Costs Recoverable Following Foreclosure

Following a foreclosure sale, a lender may seek to obtain a deficiency judgment against the borrower and guarantors for the difference between the amount of the debt (as listed in the foreclosure judgment) and the value of...more

12/9/2014 - Deficiency Judgments Foreclosure Litigation Fees & Costs Mortgage Lenders Secured Lenders

Usury in Florida: Exceptions to Civil Penalties

When a lender “willfully” charges interest in excess of statutory limits, civil usury penalties may apply. However, Florida’s usury statutes provide for two exceptions to the application of civil usury penalties. The...more

11/14/2014 - Interest Payments Lenders Usury

Discovery and Social Media

The advent of social media has brought about many changes in the world of litigation, not the least of which is the availability of information that previously would have been impossible to discover. It is hardly an...more

10/24/2014 - Discovery Facebook Foursquare Instagram Privacy Concerns Public Domain Social Media Twitter

Usury in Florida: Penalties

There are two “tiers” of penalties for violation of the Florida usury statutes, one civil and the other criminal, and both are severe. Civil penalties usually involve forfeiture of the entire interest charged (or contracted...more

10/8/2014 - Criminal Penalties Forfeiture Interest Rates Penalties Usury

Usury in Florida: Mistakes in Calculation

Because intent is a key element of usury, a lender may be able to successfully defend against a claim of usury if it can demonstrate that the interest was demanded, or in some cases even collected, through inadvertent error....more

9/4/2014 - Lenders Usury

Usury in Florida: Are Late Fees Usurious?

When borrowers default under the terms of their loans, lenders often, in accordance with the loan documents, can assess late fees against the borrower. When lenders assess late fees around the time of or after a loan matures...more

8/14/2014 - Borrowers Lenders Loans Usury

Statute of Limitations Issues in Foreclosure Actions

An important issue that arises for lenders when pursuing foreclosure actions is determining when the statute of limitations begins to run. Florida Statutes provide that a party has five years to foreclose a mortgage, but...more

7/23/2014 - Accelerated Payments Appeals Banks Foreclosure Mortgages Secured Lenders Statute of Limitations US Bank

FIRREA Protects Purchasing Banks Against Some Claims Disguised as Affirmative Defenses

As previously discussed on this blog, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process for claims against the assets of failed financial...more

6/11/2014 - Affirmative Defenses Banks FDIC FIRREA

A Potential Defense for Purchasing Banks Against Lender Liability Claims Based on the Actions of a Failed Bank

Previous posts discussed how the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process for claims against the assets of failed financial institutions. If a...more

5/13/2014 - Administrative Hearings Banks FDIC FIRREA JPMorgan Chase Lenders

Jurisdiction After Settlement Agreements

In the midst of litigation, the lender and the borrower often reach a settlement and execute a settlement agreement. Sometimes, the settlement agreement calls for the immediate resolution of the lawsuit, so the lender...more

5/7/2014

Claims Against Failed Banks Must Go Through the FDIC’s Administrative Claims Process

As described in a previous post, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) requires that anyone with a claim against a failed bank must file a claim with the FDIC within 90 days of being...more

4/14/2014 - Banks Claims Procedures FDIC FIRREA Fleet Credit

The FDIC’s Administrative Claims Process for Failed Banks

Enacted by Congress after the Savings and Loan Crisis of the 1980s, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) gives the FDIC sweeping authority to resolve the problems posed by a failed...more

3/28/2014 - Banks Claims Procedures FDIC FIRREA

Satisfaction of Judgments

In previous posts, we have given an overview of judgment liens, including what must be included in the underlying judgment, and have described how to obtain judgment liens on real property and personal property. If a creditor...more

2/13/2014 - Judgment Liens Liens

Question Certified to the Florida Supreme Court: Can Lenders Cure Standing Defects?

Establishing standing—the legal basis of a plaintiff’s right to bring suit—to enforce a promissory note is a critical aspect of any foreclosure action. Florida case law requires that the party seeking to foreclose have...more

11/22/2013 - Foreclosure Lenders Mortgages Promissory Notes Standing

Discovery of Loss-Share Payments in Litigation: Public Policy

Financial institutions seeking to challenge discovery relating to Loss-Share Agreements and payments from the FDIC should be able to do so on the grounds of relevance, as we previously discussed. A second argument against...more

9/26/2013 - Banks FDIC Loss-Share Agreements

FDIC Loss-Share Agreements: Branch Banking & Trust Company v. Kraz, LLC

There is a common misconception among borrowers that the application of Loss-Share Agreements may result in “windfalls” to institutions that acquire assets of failed banks from the FDIC. They reason that the acquiring...more

9/17/2013 - Banks Borrowers FDIC Loss Contingencies Reimbursements

Rogers Towers: Discovery of Loss-Share Payments in Litigation: Irrelevant

In foreclosure actions based on assets of a failed bank, borrowers sometimes attempt to discover whether and how much the FDIC has reimbursed the acquiring institution for its loss under the loan....more

9/10/2013 - Acquisitions Banks Borrowers FDIC Foreclosure Loss Mitigation Reimbursements

Rogers Towers: FDIC Loss-Share Agreements: Overview

Once a bank’s primary regulator has determined to close a bank, the Federal Deposit Insurance Corporation steps in to “resolve” it, usually by accepting appointment as the bank’s receiver....more

9/3/2013

Rogers Towers: Usury in Florida: Using the 365/360 Method to Calculate Interest

Many lending institutions use the 365/360 method of calculating interest on their loans. This method involves applying the ratio of the annual interest over a year of 360 days, multiplied by the outstanding principal balance,...more

8/6/2013 - Interest Rates Lenders Lending Principal Balance Usury

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