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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

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

Federal Court Awards Sanctions Against the Filer of Improper Rule 11 Motion

Be careful what you wish for. That was the message Middle District of Florida Judge Carlos Mendoza delivered in Claudet v. First Federal Credit Control, Inc., 14-CV-2068  (M.D. Fla. Nov. 17, 2015) to the filer of an improper...more

Florida Appellate Court Provides New Insight on the Statute of Limitations and Pleading Re-Filed Foreclosures

In Hicks v. Wells Fargo, 5D14-1748, Florida’s Fifth District Court of Appeal issued the first appellate opinion to pass on the proper method of pleading a re-filed foreclosure where a prior foreclosure effort was dismissed...more

Florida Appellate Court Rejects Conditional Notices of Voluntary Dismissal – Treats as Totally Ineffectual

In Wells Fargo Bank v. Lauri Mailloux, 2D14-5116 (Fla. 2d DCA October 30, 2015), the Second District Court of Appeal held that the inclusion of language purporting to render a notice of voluntary dismissal conditional upon an...more

Third DCA Rejects Use of Strict Compliance Standard for Paragraph 22 Notices, Expressly Adopts Substantial Compliance

Many judges in Miami-Dade County and elsewhere held the view that “strict” compliance was the standard to determine if a notice of default complied with the provisions of a paragraph 22 of a mortgage.  To this day, no...more

Supreme Court Hears Oral Argument in TCPA Case Concerning “Picking Off” a Class Rep with an Offer of Judgment

On October 14, 2015, the United States Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez, 14-SC-857.  The plaintiff in Gomez alleged he received an unsolicited marketing text message advertising the US Navy...more

Appellate Court Rejects Claim That Borrower Must Be Permitted to Conduct Life of Loan Standing Discovery or Examine Bank Policies...

Standing is one of the top issues in foreclosure case law. So it comes as no surprise that the issue of standing is also a common focal point for discovery disputes in foreclosures. It has become common foreclosure defense...more

TRID: New Requirements for Real Estate Closing Disclosures Are Here, Will There be A Grace Period?

It’s finally here. Over the weekend, the Consumer Financial Protection Bureau’s (CFPB) long awaited and oft delayed integration of the disclosures required by the Federal Truth in Lending Act (TILA) and Real Estate...more

Federal Courts Rejecting Hyper-Technical Claims on Reg X Notice of Error/Request for Information Provisions

In Russell v. Nationstar Mortgage, LLC, No. 14-61977-CIV, 2015 WL 5029346, at *5 (S.D. Fla. Aug. 26, 2015), United States District Court Judge Beth Bloom issued litigious borrowers their latest setback in a large scale...more

Focus on the TCPA: Consolidated Appeal of FCC’s TCPA Order Continues to Grow

The Federal Communications Commission’s (FCC) July 10, 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) was received by many in the business community with great concern. The Order’s seemingly...more

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