Scott J. Kennelly

Scott J. Kennelly

Rogers Towers

Contact  |  View Bio  |  RSS

Latest Publications

Share:

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

Rogers Towers: Usury in Florida: The Limited Application of the Savings Clause

A usury savings clause is a provision in a loan document that attempts to negate any other provisions therein that might result in the extraction of an illegal interest rate....more

7/30/2013 - Interest Rates Lenders Loans Usury

Rogers Towers: Fair Debt Collection Practices Act (FDCPA): Ceasing Communications with a Debtor's Attorney?

The Fair Debt Collection Practices Act (FDCPA) gives a debtor the right to notify a debt collector that he or she wishes the debt collector to cease communication with respect to the debt, with some exceptions....more

7/18/2013 - Debt Debt Collection Debt Collectors Debtors FDCPA

Rogers Towers: Usury in Florida: Intent is Key

Usury under Florida law is largely a matter of intent. It is not fully determined by the fact that the lender actually received more than law permits but by the existence of a corrupt purpose in the lender’s mind to charge...more

4/11/2013 - Bad Faith Interest Rates Lenders Loan Documentation Loans Usury

Usury in Florida; Generally

Under Florida law, usury is defined as the willful and knowing charge or receipt of interest in excess of 18% per year for credit transactions involving less than $500,000 or between 25% and 45% per year in a credit...more

4/2/2013 - Borrowers Interest Rates Lenders Penalties Usury

Rogers Towers: Florida Deficiency Proceedings: Establishing the Value of the Property

Following a foreclosure sale, a secured creditor may seek a monetary judgment for the deficiency amount that remains owed to it by the borrower. If the creditor was the successful bidder at the foreclosure sale, it has the...more

3/12/2013 - Broker Price Opinions Deficiency Judgments Fair Market Value Foreclosure Secured Creditors

Rogers Towers: Florida Foreclosure Sales: Developing a Maximum Bid

A secured creditor who obtains a foreclosure judgment has the ability to “credit bid” at the foreclosure sale up to the full amount indicated in the judgment, without being required to deposit any funds with the Clerk of the...more

2/28/2013 - Credit Bids Foreclosure Secured Creditors

Rogers Towers: Florida Deficiency Proceedings: Effect of Bids at the Foreclosure Sale

During a deficiency proceeding, once a creditor introduces the foreclosure sale price, the borrower technically has the burden of presenting evidence to establish the fair market value of the property. In the absence of such...more

2/21/2013 - Appraisal Bids Competitive Bidding Creditors Deficiency Judgments Documentary Stamp Tax Expert Testimony Fair Market Value Foreclosure

Rogers Towers: Use of FDIC Special Powers: Knowledge by the FDIC or its Assignees is Irrelevant

In previous posts, we introduced the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e), which bar claims and defenses against the FDIC and its assignees by private parties based on improperly...more

2/5/2013 - Acquisitions Assignees D’Oench Doctrine FDIC Insolvency Pleadings Special Powers Successors Written Agreements

Rogers Towers: Use of FDIC Special Powers: The Expanded Scope of the Term “Agreement”

In previous posts, we introduced the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e), which bar claims and defenses against the FDIC and its assignees by private parties based on improperly...more

1/31/2013 - D’Oench Doctrine FDIC Misrepresentation SCOTUS Special Powers

Rogers Towers: Use of FDIC Special Powers by Assignees of the FDIC

Courts have extended the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e) to successors or assignees of the FDIC as receiver of the failed banks....more

1/22/2013 - Assignees D’Oench Doctrine FDIC Special Powers Successors

Rogers Towers: Use of FDIC Special Powers: Overview

Last month, the Federal Deposit Insurance Corporation reported that 470 financial institutions have failed since 2007. It is no wonder, then, that many institutions are embroiled in litigation involving loans made by failed...more

1/10/2013 - D’Oench Doctrine FDIC Insolvency Loans

27 Results
|
View per page
Page: of 2