Bed Bug Claims by a Florida Tenant: Can You Sue the Landlord When Bed Bugs Are Found in a Apartment, Leased Home, Condo or Vacation Rental?

Posted By on December 8, 2016

In Florida, the obligation of a landlord to a tenant with regard to providing a clean and safe living condition when leasing and renting of residential real estate, is governed by Florida statute and Florida court opinions – this includes renting in a large apartment complex, single family home, vacation rental or condo.

Bed Bugs and Landlord-Tenant Disputes

Most bed bug related landlord tenant disputes stem from the landlord’s lack of knowing how to deal with an infestation and from not having a coherent bed bug policy as to proper cleaning, extermination and the hiring of certified experts to address an infestation. (Bombing bed bugs, if done incorrectly, can simply lead to the bed bugs spreading to other areas of the home or units in the complex.)

Bed bugs have been found in high end apartment complexes and vacation resorts and their presence is not determined by the cleanliness of the living conditions where they are found.

According to Florida statute 83.51, unless agreed in writing, the landlord of an apartment complex is required to  exterminate for bedbugs.  Furthermore, Florida statute 83.56  states if a landlord materially fails to comply with  83.51 “… within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.” 

However, be aware, going down this road can lead to an issue with the landlord not returning your security deposit.

Bed Bug Claims – What About Insurance?

Unfortunately, most renters insurance don’t cover claims related to maintenance issues. That’s because the costs associated with eliminating bed bugs is considered part of standard home maintenance.

Thus, Florida landlords and property managers need to properly maintain their premises, including having a maintenance program that looks for and properly treats any bed bug infestation.

Can Bed Bugs Cause a Personal Injury Claim?

Due to the invasive nature of bed bugs (they can lay several eggs per day), an infestation can lead to personal injury claims against a property owner and/or other interested parties (i.e. leasing and rental agents and property management companies).

If a tenant, shows signs of a bite, from  a small bite mark, to a serious allergic reaction, then the landlord,property manager, or leasing agency, may be held liable for those injuries. In Florida, landlords have a duty to provide habitable living conditions (some duties can be contracted away – check your lease).

Further, a claim for damages in a bed bug lawsuit can be significant, particularly if the tenant has engaged the help of a mental health professional for severe emotional distress.  Those damages are in addition to claims for pain and suffering, lost wages, reimbursement of medical expenses, relocation expenses, property damage and more.  To this end, be sure to take pictures or video of your bites and try to collect evidence of the infestation, including capturing a bed bug, if possible.

If you are dealing with a bed bug issue, a good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights, including what information you will need to make a claim and the amount of damages you may be able to recover. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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How to Have a Deed Notarized if the Seller is in a Foreign Country

Posted By on November 29, 2016

The simplest reason that deeds have the seller’s signature sworn before a notary public is to prevent fraud.  This is particularly important in real estate transactions where the seller is foreign or is abroad.

In fact, our years of Foreclosure Fraud and Robosigning are prime examples of what happens in real estate when there is a failure in the notary process.  Learn more about that in our free 2011 e-book, “The Non-Lawyer’s Guide to Foreclosure Fraud 2011.”

Which is why there is a state law that addresses conveyances of real estate where the seller isn’t in the State or in the country.  A deed transferring Florida real estate must comply with our laws regarding execution and notarization.

 

Jeronimo globe

 

Notary Public and Florida Statute 117.107

What is a notary public?  A notary public is a recognized officer licensed by the State of Florida, with specific duties defined under Florida law.

Someone who acts as a notary public is serving as a public official.  It’s a position of integrity and respect.  “Notary publics” are officers who are commissioned by the State of Florida to provide specific notarial acts created in state statutes.

These include those outlined in Florida Statute 117.107(9), which states that a Florida notary public cannot notarize a signature on a document if “…the person is not in the presence of the notary public at the time the signature is notarized.

This brings us to the problem of having a seller who is in another country when you are buying a Florida home or condo.  How can you close with these legal notary requirements? And is this really a problem here in Florida?

Foreign Sellers and Florida Real Estate Closings

In South Florida, there are a great number of residential properties owned by foreign investors.   In fact, according to 2015 research by the National Association of Realtors, Miami and Fort Lauderdale alone account for fifty percent (50%) of statewide foreign real estate deals, which totaled $6.1 BILLION in total sales volume that year.

More and more, buyers looking for residential properties here in Florida are going to be dealing with owners who live in another country.  It’s pretty commonplace these days.

So what do you do if you are involved in a real estate deal where the owner of the home or condo is not in Florida, but in another country?

Surely you don’t have to pay for a Florida notary public to fly to Canada or Great Britain or China to insure compliance with the presence requirement?

No, you don’t.  The Florida Legislature has dealt with this situation already.

Florida Statute 693.03: Notarizing Documents for a Foreign Seller

If you have a document which ordinarily would be signed in front of a Florida notary public, but the person who needs to sign is in another country, then you follow the procedure of Florida Statute  695.03(3).

Under Florida Statute 695.03(3), there are several options for the foreign seller / signatory.  He or she may find one option more convenient than another, depending upon the laws of their nation and their personal circumstances. You can read the full text of Florida Statute 695.03 online here.

The County Records Clerk and Florida Statute 695.03

Under Florida Statute 695.03(01), before any real estate documentation can be recorded by a Florida county clerk’s office, that document must be properly executed and acknowledged.

The clerk will review the document for compliance with state law before accepting it. Each county in the State of Florida will have established guidelines for recording a deed in its jurisdiction (you record deeds in the county where the land is located).

If the deed you present to the county clerk’s office does not meet their approval, then the deed will not be entitled to be recorded.

For details on what various counties require for recording a deed, check out the online information provided by:

What will the Clerk look for in the Deed?

Under normal circumstances (where the seller is located within Florida), the seller’s signature on the document must be acknowledged by a notary and the notary acknowledgment should include the names being acknowledged, the date the acknowledgement was taken, the signature of the notary (name printed underneath), and the commission expiration date and seal.

Who Can Act as a Notary Public in A Foreign Country?

For those involved in a transaction with a foreign seller, the seller must execute (sign) the deed before any of the following:

1.  A Commissioner of Deeds

A commissioner of deeds is someone appointed by the Governor of the State of Florida to act in that foreign country.  His or her seal is acceptable under Florida Statute 695.03.

2.  Civil-Law Notary or Notary Public of That Country

Any notary public of the foreign country, or a civil-law notary of either (a) Florida or (b) that foreign country who has an official seal, can act as notary.

Either the foreign country’s own notary public or a civil-law notary can authenticate the foreign seller’s signature on the deed under Florida law.

3.  U.S. Representatives in that Nation (Envoys, Diplomats, etc.)

Many American citizens work in foreign countries on behalf of our nation.  It is permissible under Florida Statute 695.03 for an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country to acknowledge and authenticate the signature of a foreign seller on a deed transferring Florida real estate.

Here, federal regulations also come into play.  Under 22 C.F.R. 92.31, there are notarizing officers at all U.S. Embassies and Consulates.  Before they will confirm the seller’s signature on the real estate deed, they will need:

  1. the personal appearance of the seller requesting the notarial service;
  2. to establish their identity;
  3. to establish that the person understands the nature, language and consequences of the signing the deed;
  4. to establish that the person is not acting under duress; and
  5. to confirm that the act does not come within the exceptions where notary services must be refused under 22 C.F.R. 92.9.

4.  Officers with the United States Military

Finally, there are procedures in place to help our armed forces.  These are provided by Article 136 of the Uniform Code of Military Justice.

It is legal for a military or naval officer to perform the duties of notary public, with the officer’s seal being used as the certificate of acknowledgment, legalization, authentication, or proof of the foreign seller’s execution of the deed transferring Florida property.

What Should You Look For In a Deed That Was Notarized Abroad?

Under Florida Statute 695.03(3), there are certain items that must exist on any deed that is presented by a foreign seller in a residential real estate deal.  These are:

  1. The official seal of a civil-law notary or notary public.
  2. If there is an official seal on the deed from a civil law notary in the foreign nation, then you need to make sure that the seal has been given by an authority in the foreign jurisdiction who has an official seal and who has the power in their laws to make legal or lawful the execution of any document in that jurisdiction.

Are You Having An Issue Having a Florida Deed Signed Overseas?

If you are having an issue with a foreign seller getting a document notarized, a good piece of advice is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Florida lawyers have experience in dealing with international transactions and may be able to expedite the closing of your transaction in ways that other real estate professionals cannot.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Bartram: Florida Supreme Court Decision on Foreclosure Lawsuit Deadlines

Posted By on November 15, 2016

If you are being sued for foreclosure here in Florida, or you suspect you may be facing foreclosure in your future, then you need to know about this month’s Bartram ruling.

 


 

1.  Why is the Bartram Case so Important?

Opinions issued by the supreme court are the law in our state.  They are just as powerful as any law passed by the legislature.  There’s no appealing their decision to a higher court (exception:  federal constitutional arguments which can proceed in federal court).

Which means, the Bartram case applies to everyone in Florida.  And, it’s not good news for those fighting against a foreclosure in our state.

This ruling is a victory for the very same banking industry that caused our foreclosure crisis with robo-signing and all the other fraud.   Learn more about Florida Foreclosure Fraud in our free 2011 e-book, “The Non-Lawyer’s Guide to Foreclosure Fraud 2011.”

2.  What was the Ruling in the Bartram Case?

The official court case is Bartram v. US Bank National Association, No. SC14-1265 (Fla. Nov. 3, 2016) . (Click the link to read the entire case in Google Scholar.)

In Bartram, the Florida Supreme Court reviewed the ruling of the Florida Fifth Circuit Court of Appeal. Specifically, it reviewed their decision that a lender can file a second, third, fourth, etc., foreclosure action even if there has been an acceleration of a loan and an involuntary dismissal of the first foreclosure lawsuit.

Read the lower court opinion here.

Two bites of the apple? Yes, said the lower court.

The Fifth Circuit held the bank could foreclose AGAIN if (1) there was another default within 5 years of the new foreclosure lawsuit and (2) the mortgage had language that allowed a right to reinstate the mortgage after acceleration.

Lewis Bartram, the losing homeowner in that case, appealed the decision to the Florida Supreme Court.

Surely the bank can’t keep coming back to foreclose after a Florida court has dismissed the case?

Yes, the Florida Supreme Court ruled.  Yes, the bank can foreclose a second time.

What about the statute of limitations?  Doesn’t that block the bank from filing a new lawsuit?

No, said the Florida Supreme Court.

Looking at its earlier case Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), the Supreme Court ruled the limitations deadline doesn’t block the second foreclosure.

That’s because the statute of limitations deadline starts to run on the date of the subsequent default.  It doesn’t keep running from the date of the default stated in the first foreclosure lawsuit.

From the Bartram case:

“… [t]he dismissal returned the parties back to ‘the same contractual relationship with the same continuing obligations…. Therefore, the Bank’s attempted prior acceleration in a foreclosure action that was involuntarily dismissed did not trigger the statute of limitations to bar future foreclosure actions based on separate defaults.”

3.  What Happened in the Bartram Case?

So, what happened here?  Let’s look at the facts of the case.

Lewis Bartram Stops Making Payments on his Mortgage after his Divorce

Lewis Brooke Bartram, the borrower and a Florida home owner, stopped making payments on his $650,000 residential mortgage (and promissory note).

His story began years ago after he and his wife Patricia bought a home in Ponte Vedra Beach, getting a loan from U.S. Bank’s predecessor.

Like most marriages these days, the Bartrams got divorced.  Lewis bought his ex-wife’s interest in the Ponte Vedra Beach property as part of their divorce.  He signed a note and mortgage to Patricia.

Afterwards, Lewis decided not to pay anyone anything.  He made no payments to the bank, or to Patricia, or to the homeowner’s association.  So, the bank filed a foreclosure action against Mr. Bartram based upon his non-payment default.

Time passed.  Almost five years, in fact.

Bank Foreclosure Gets Dismissed by Trial Court

In May 2011, the trial court dismissed the bank’s 2006 foreclosure case against Mr. Bartram.  It did so for two reasons.  It seems the bank didn’t show up at a case management conference, plus it was four years over the court’s time standards for foreclosure actions.

The bank appealed this dismissal to the appellate court, and won.  Then Mr. Bartram appealed that decision to the Florida Supreme Court.

It reviewing the case, it is important to know some other basic facts about Mr. Bartram (these facts are important to note because sometimes bad facts make bad law):

Mr. Bartram didn’t make his mortgage payments before the bank sued for foreclosure.  He also didn’t make any payments to the bank after their foreclosure lawsuit was dismissed.

He lived in his home for years without making a payment.

Five years passed between the time that he stopped making payments and the filing of the SECOND foreclosure action.

4.  What the Bartram Case Means to Borrowers

Until this case, many in Florida believed that if the bank failed to pursue its foreclosure action as required by the 5-year statute of limitations then the bank had a problem.  If a foreclosure was dismissed, involuntarily, then the bank was barred (under a statute of limitations theory) from bringing a later foreclosure action. Meaning, the defaulting homeowner was no longer obligated to repay the loan.

With this new Supreme Court opinion, that is not how the law works in Florida.

It doesn’t matter that Florida homeowners suffered, in many instances, from years of bank bureaucracy (submitting and resubmitting of paperwork, losing paperwork. etc.) and dealing with lenders (or servicers, MERS, holders of the note, etc) who did nothing to help or who intentionally misled them (offering mortgage modifications and then not following through).

This ruling means that delinquent borrowers cannot assume their fight with their lender ends even if the bank’s foreclosure lawsuit is dismissed by the trial court.

Or, as some may explain it: no more “free houses” for defaulting Florida home owners.

5.  What the Bartram Case Means to Lenders

The Bartram case is an important victory for mortgage lenders here in Florida.  Until this opinion was released, many argued that a bank had to foreclose within 5 years of the borrower’s first mortgage default, where the bank accelerated the mortgage, or they would be barred by the statute of limitations deadline.

Not now.

Now, the bank can still foreclose even after an acceleration demand is made.

The Statute of Limitations Does Not Bar All Subsequent Foreclosure Lawsuits

Banks are not barred by the statute of limitations deadline if their first foreclosure action is involuntarily dismissed by a trial court.

Under Bartram, banks can file a second foreclosure lawsuit based upon a defaulted payment that happened after the date of the first foreclosure’s dismissal.

The underlying theory is each time the borrower fails to make a loan payment, it is a new default.  Each new mortgage default can be the basis for a new foreclosure action.

The five year limitation time period begins to run on the date of that new default.

From a lender’s viewpoint, based upon the court’s explanation, the mortgage may be an “installment loan” but acceleration of that loan isn’t effective until final judgment is entered.  So, if the first foreclosure action is involuntarily dismissed, there was never an acceleration of the installment loan.

What is the Impact of the Ruling?

This case leaves a lot of questions unanswered.  Many seasoned Florida real estate lawyers agree. For one thing, decelaration isn’t a defined term or behavior under most residential mortgages.  How does it work?

Plus, the ruling doesn’t deal with other important issues in foreclosure cases. It ignores other banking industry problems, like lenders who refuse to take a mortgage payment when it is offered by the borrower. Mortgage lenders are notorious for refusing a payment after they assert there has been a “default” — or where a bank offers a modification but then refuses to honor the deal they offered.

What About the Other Foreclosure Defense Arguments?

There are still arguments to be made by borrowers here in Florida, even after the Bartram ruling.  The Bartram opinion does not address every foreclosure defense.  It’s a decision based solely upon Florida’s statute of limitations law.

One of biggest issues or arguments that remains is standing.  All too often banks file foreclosure lawsuits without standing (the authority or right) to do so.

For details on the standing argument, read about our recent victory against Bank of America on this issue in Barnett v. U.S. Bank Nat. Ass’n, 186 So. 3d 585 (Fla. Dist. Ct. App. 2016).

What Should You Do?

If you are facing a foreclosure in Florida, a good piece of advice is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Foreclosure Defenses still exist after Bartram.

Related: Florida Foreclosure Appeals

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Florida Real Estate Contract Lawsuits

Posted By on November 1, 2016

In Florida, when a seller and a buyer sign a residential real estate contract for the purchase of a new home or condominium, they create legal duties for themselves.

If these duties are not fulfilled, then under the contract there are consequences.  Those consequences are spelled out in both the contract and in Florida case law.

For an overview of Florida real estate contracts see, “Anatomy of A Florida Real Estate Closing.

 

Condo parade, Miami Beach, Florida LCCN2011630812

Miami Beach Condo Parade, from Library of Congress collection, by the famous photographer Carol M. Highsmith.


 

Breach of Contract Claims

If a seller or buyer fail to comply with the contract, then the non-compliant party has “breached” or “defaulted” on the agreement. That breach normally harms the other side in some way (the seller needs the proceeds from the sale to purchase a new home or the buyer has nowhere to go because they just sold their home and were intending to move into the home that is at the center of the breach).

When a breach occurs, the harmed party may then file a lawsuit for damages, to rescind the deal, or for both. He or she can also sue to force the deal to close. Whether or not the harmed party sues for money or specific performance will depend upon their particular circumstances.

Read, “What Remedies Are Available For a Breach of a Real Estate Contract in Florida?

Florida real estate contract lawsuits are filed all of the time here in our part of the state, for all sorts of reasons (Concealment or failing to disclose a bad roof, bad plumbing, septic tank issues, etc.).

For more on the issue of breach of contract, see our post “What Happens When a Buyer Defaults on a Florida Real Estate Contract?

Can You Protect Yourself From a Lawsuit?

Can you protect yourself from being involved in a real estate contract lawsuit? No. There’s no way to tell when a residential sales contract is signed that it will lead to a complaint being filed at the courthouse.

Sometimes, things become clear pretty fast after the documents are signed. Other times, the deal falls apart on closing day.

Sellers and buyers can default at any point in the closing process. Maybe the seller cannot provide clear title. Maybe the buyer’s financing falls through or a deadline is missed.

There’s no a crystal ball to predict which residential real estate deals are destined for a courtroom. There’s no way to know at what point in the closing process things may fall apart.

That’s why no deal is done until the funds are disbursed and they clear your account.

Types of Florida Real Estate Contract Lawsuits

Here in Florida, real estate contract lawsuits have been based upon a vast array of circumstances. The scenarios are as varied as our climate, culture, and personalities. However, the legal bases for litigation based upon a failed residential real estate agreement are more predictable.

The facts may vary and be unique to the situation, but the law is pretty standardized and established.

Here are different types of disputes that can arise in a Florida real estate contract lawsuit:

1. Effective Date Dispute

One key component of every residential real estate contract is a “meeting of the minds.” Both the seller and the buyer must agree on basic things like the price, the property that is being sold, the date the deal became effective, and the closing date.  What controls, the signature or the initials on an accepted counteroffer, when determining the effective date?  Within the contract, provisions may impact timing of things, as well. These deadlines may or may not be subject to extension or re-negotiation. If key deadlines are missed, then one party may argue that the deal has been breached and a lawsuit can follow.

For more information, read our posts, “5 Must-Have Prerequisites for A Valid Contract to Sell Residential Real Estate In Florida,” and “5 Key Issues Related to Florida Real Estate Contracts.

2. Time Is Of The Essence

The contract may contain the phrase, “time is of the essence.” If the party fails to perform a contract duty by the deadline, then the other party can point to the “time is of the essence” language and call off the deal. After that, they can sue or they can re-negotiate the entire sale.

For more information, read our post “Time is of the Essence Provisions in Florida Real Estate Contracts: What Does This Contract Language Mean to You?

3. Extensions

There are all sorts of dates and time frames in a standard residential real estate sales contract. The agreement will have deadlines for things like inspections, mortgage financing approval, and repairs. Things may happen that require these time frames to change. Here, the contract can be changed, or amended, to extend those deadlines. However, if the other party fails to agree to an extension or if an extension is not met or the problem is not resolved, then a dispute may follow.

For more information, read our posts, “What Happens When a Seller Defaults on a Residential Sales Contract in Florida?” and “What Happens When a Seller Defaults on a Florida Residential Real Estate Contract? – Part II.

4. Title Issues

At closing, the buyer must receive full and clear title to the home or condo from the seller. There may be several reasons that the seller cannot provide it (tax liens, probate issues, boundary disputes, defects in the legal description, and defective documents in the chain of title, etc.). Until the title issues are resolved, and the seller conveys marketable title to the buyer, the closing cannot occur. The seller may be liable for money damages caused by the delay or for the failure to cure the title defects.

For more information, read our posts, “4 Title Issues That Can Derail A Florida Closing” and “3 Types of Title Issues Which Impact Florida Real Estate Closings.”

5. As Is Disputes

In Florida, a seller can offer to sell a home or condo “as is.” That is legal. It means that the buyer is agreeing to take title to the property in its exact condition (without repair), and it is done quite often. However, “as is” does not excuse the seller from all legal responsibility for any problems with the property (a seller can’t simply conceal a known problem that a buyer is unlikely to find during a routine inspection). However, it does mean that the seller does not have to pay for any repairs. What is covered by an “as is” provision may become the subject matter of a Florida real estate contract lawsuit.

For more information, read our post, “Does a Home Buyer Have a Claim Because They Weren’t Told About a Problem with Their Home?

6. Repair or Property Condition Disputes

Before closing on a home or condo, a buyer should check the condition of the property, and its improvements, to make sure everything is in proper working order. A licensed inspector should check for things like mold, termites, likelihood of flooding, structural support, and other property issues. The contract usually has a deadline for the seller to fix any repairs that are demanded as a result of these inspections. If the seller fails to do the repairs, or does so in a less than acceptable manner, then the buyer may have a claim against the seller for breach. Additionally, if the condition of the property at the time of the walk through is materially different than it was at the time of the inspection, then that may lead to a dispute between the parties.

For more information, read our post, “Major Repairs to Your Florida Condo: Who Pays?” and “4 Conditions A Buyer Should Require Before Closing On A Florida Home.”

7. Contingencies

Parties may include language in the contract to protect themselves against known or unknown issues. These are called “contingencies.” Common contingencies that buyers may include are those that impact how much they have to pay at closing or if the closing is going to occur at all (short sale approval, appraisal issues, mortgage assumption, attorney approval of the contract, sale of existing home, etc.).

Whether or not that provision applies to the situation may be disputed by the seller, however. Conflicts over contingencies can result in a lawsuit.  See, “Florida Residential Closings and Price Changes: Is The Buyer’s Offer Set in Stone?

8. Cancellation And/Or Rescission

There are circumstances where a Florida buyer can terminate the contract and walk away. For example, if the buyer inspects the property and is not satisfied with the results of the inspection he or she may cancel or rescind the deal. Here, the buyer may point to a problem with the property or simply decide the property isn’t for him or her — no matter what the seller prefers.

Sometimes, the contract will define when rescission applies. Florida law also holds that rescission applies in some situations, even if the contract is silent on the issue (fraud or mistake by one or both parties). The seller may not agree with the buyer who claims rescission and cancels the deal. Whether or not there is a right to cancel or rescind the deal by the buyer may need a judge’s approval, after the seller files his or her case in court.

For more information, read our post “Rescission of a Residential Real Estate Contract in Florida.”

How Do Florida Real Estate Lawyers Help?

Having an attorney to help with a Florida residential real estate agreement before it is signed and it creates legal duties is a best practice. However, a Florida real estate lawyer can be helpful at any point during the closing process, especially if the deal is in danger due to the failure of a party to comply with the contract.

Dispute Resolution or Trial

Depending upon the documentation, the parties may enter into “alternative dispute resolution,” or they may take their grievance directly to the courthouse and file a lawsuit. Many form sales contracts in Florida will have provisions for arbitration or mediation between the parties before a formal lawsuit can be filed.

Here is an example of a form residential sales contract’s mediation provision:

 

example of contract provision requiring mediation

 

However, the claims and their resulting damages will be the same. If you are required to go through alternative dispute resolution, this will not change the nature of your claim. It just defines where your battle will be fought.

If you or a family member are purchasing or selling real estate in Florida, and you have a dispute with the buyer or seller, a good piece of advice is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions about a potential lawsuit.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Florida Foreclosure Appeals

Posted By on October 18, 2016

Florida is a “judicial foreclosure state.” Under our banking laws, when a bank seeks to exercise its right to obtain ownership of real property because of a breach of a mortgage, or a promissory note secured by a mortgage, it must file a lawsuit. This is true for any breach or default by the borrower of one of these agreements, including when the borrower fails to make a payment on the loan. (Many states follow the an alternative “non-judicial foreclosure process” – see image below.)

Why must a bank file a lawsuit? Under our laws, a bank must obtain a judgment signed by a judge in order to take possession and obtain legal title to the real estate. However, by filing a lawsuit, it gives the borrower the right to defend the foreclosure lawsuit, including challenging the right of the bank to foreclose.

For more on the overall Florida Foreclosure process, read “Florida Foreclosure Nuts and Bolts: What Happens in a Florida Home Foreclosure – The Florida Foreclosure Process in 10 Steps.”
 
 
Typical Foreclosure Processes
 

Appealing a Trial Court’s Foreclosure Judgment

Foreclosure lawsuits begin at the trial court level. At their conclusion, if a final judgment is entered the clerk records the judgment in the court docket.

After a set amount of time passes (see rule 1.530 of the Florida rules of civil procedure), that judgment is considered “final” for all intents and purposes. A foreclosure sale occurs, and the certificate of title is filed, or recorded, in the public records where the property is located, evidencing transfer of legal title to the foreclosing party. At that time, the foreclosing party (i.e. the bank), assuming it is the high bidder at the foreclosure sale, can then sell the property to recover the amount due under the unpaid home loan.

If a borrower does not believe that the judgment was entered correctly or the judge made an error in the application of the law, then the borrower can file for a review of the judge’s determination with the appellate court. This is a court where several justices will review the issue and determine if there has been a legal mistake warranting a reversal of the trial court’s judgment.

You Need to Act Fast! There are Time Deadlines for Appealing a Foreclosure Judgment (Final Judgments and Summary Judgments).

There is a legal deadline for filing an appeal: a borrower has to do so within thirty (30) days of the final judgment being entered in the foreclosure lawsuit. After that time has passed, the judgment is final and not open for appellate review.

Also, from a practical stand point, you need to act fast because your lawyer, if you hire an appellate foreclosure lawyer, will need as much time as possible in order to review your case, including the transcript of the trial, to find a legal basis for the appeal.

That’s because there must be a valid legal error to appeal the judgment, which can can take time to determine. Some issues can require extensive research to formulate an argument for the preparation of an appellate brief (the document you file with the appellate court outlining the error or mistake).

Foreclosure Summary Judgment Appeals

When appealing a summary judgment, it is important to give the appellate lawyer as much time as possible because the appellate justices will review the foreclosure case “de novo.” Meaning, they will consider all of the evidence all over again.

In this situation, the borrower gets to present their case to the appellate judges, just like he or she did to the trial judge. Which means, that the borrower’s foreclosure lawyer will need enough time to find justifications or a factual basis for reversing that trial judge’s decision.

For more on summary judgments in foreclosures, see “Will Your Claim Survive a Motion for Summary Judgment?”

Foreclosure Appeal Arguments: How Can You Obtain a Reversal of a Foreclosure Judgment?

There are many legal arguments that can be made when appealing a foreclosure judgment. There is no cut and dry list to give you here.

This is due, in part, to all of the Florida foreclosure fraud that took place over the past decade, and the legislative directive given to the Florida courts to clear their bottleneck of foreclosure lawsuits on their court dockets. The issues ripe for appeal are bountiful.

For more on the Florida Fair Foreclosure Act, read:

With that said, the types of issues or mistakes that can be appealed can be unique to one case, or just a few cases. However, some errors are widespread, impacting many foreclosures filed by one lender or by one law firm.

Below, are just a few of the reasons we have seen for successfully overturning of a Florida foreclosure judgment. Please keep in mind as you review this list, your individual case should be reviewed by an experienced Florida foreclosure attorney to determine if it qualifies for an appeal.

1. Standing

One basis for reversing a foreclosure judgment is “legal standing.” Banks, as plaintiffs filing lawsuits, have to show the court that they have “standing,” or are the right parties to bring the lawsuit.

Who exactly has standing to foreclose? In a foreclosure lawsuit, is the only party that has a legal right to file the lawsuit to foreclose on your home the original holder of the note? Or, is a party that has all the legal rights of the original holder able to foreclose?

When you bought or refinanced your home, you signed both a mortgage and a promissory note.

The note is the legal document where you made the promise to make the mortgage loan payments. Is the holder of that note the only party that can legally sue when those payments have not been made?

See, “The Power of Real Estate Law: Banks Cannot Legally Foreclose Upon Real Estate Loans They Don’t Own.”

You can win a foreclosure appeal based upon standing if you can provide evidence to the appeals court that the bank / plaintiff failed to prove it had standing to file that foreclosure action. Who is a “holder”of the promissory note (see #5 below)? Is MERS a holder?  Is a servicing company a holder? Can a trust be a holder?

In these Wild West Florida Foreclosure Fraud days, this is easier than it sounds. All too often, the plaintiff in the foreclosure action isn’t the original lender. That note might have been sold or assigned several times before the home owner stopped making mortgage payments.

For example, if the plaintiff bank cannot show that they had possession of the endorsed original note at the time that they filed their foreclosure lawsuit, then they did not have standing to sue.

We won a recent case on the issue of standing. See, “Florida Foreclosure Appeal on The Issue of Standing – Victory Against Bank of America.”

2. Lost Notes

You can fight a foreclosure in some cases if the bank files its lawsuit and alleges that it cannot provide the original note because it is lost. In this case, the bank files the foreclosure lawsuit without it. Later, the bank may amend its suit, filing what it claims to be an endorsed original. They give no reason for the delay in filing the note. No explanation of how it was lost or where it was found.

While a trial court may accept the late filed document, many Florida appeals courts do not.

The appeals court may find that if the bank didn’t have the original note when it filed the lawsuit for foreclosure, then it didn’t have standing to sue the borrower. See, Balch v. LaSalle Bank NA, 171 So. 3d 207 (Fla. Dist. Ct. App. 2015).

Inserting the note into the file later likely won’t work either. Lost notes don’t overcome the legal requirement that a foreclosure lawsuit must demonstrate legal standing to sue at the moment that the complaint is filed with the clerk’s office.

See, “Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents.”

3. The Amount Of Damages

The bank must prove its case against the borrower just like any other lawsuit filed before the trial judge. The plaintiff has to prove that the defendant committed a legal wrong, like failing to make mortgage payments, and that as a result the plaintiff has been harmed.

In a foreclosure lawsuit, this means that the lender has to provide proper authenticated evidence of its damages. How it has been harmed, in dollars and cents.  What’s due and unpaid?

For instance, the bank needs to file an Affidavit of Indebtedness. Affidavits are sworn documents. They must be signed with specific formalities or they are not valid and can not be relied upon as authenticated evidence.

If the lender did not prove up damages with proper authenticated evidence, then the borrower can argue on appeal that the foreclosure judgment is improper under the law and should be reversed.

4. Proper Business Record

The bank has a duty to provide the trial court with authentic and admissible evidence to prove its case. This is a legal duty that exists even if the borrower never answers the complaint and ignores the entire foreclosure trial process.

If there is not sufficient legal evidence, the the judgment should not be granted to the lender. This means that the bank needs to have proper business records placed before the court.

That’s easier said than done these days, given the Foreclosure Fraud fiascoes. All too often, the lender may not be able to find a person with true knowledge of the documents to prove they are authentic, for instance.

Authenticating business records cannot be waived just because it’s difficult for the bank to do.

The bank has to meet the rule of evidence here. All of its business records, including the promissory note and the default notice (or notice of acceleration – also, proof of compliance with paragraphs 15 & 22 of most mortgages), must be presented in proper and correct form.

Many times, banks cannot meet the hearsay exception to make their evidence admissible. They need to have a real, live witness who has personal knowledge of the borrower’s file to confirm the authenticity of its contents. If the lender cannot find this person, then what?

There have been lots of attempts by lenders to put other bank employees on the stand because they don’t have anyone with personal knowledge who can testify. These employees will try and maneuver around things as best they can.

However, if the borrower challenges this evidence on appeal, then a reversal is possible. The failure of the bank to prove up a proper business record can justify a reversal of the foreclosure judgment.

See, “Guide to Foreclosure Fraud Part 4: Examples of the Frauds Including the Story of the Now Infamous Linda Green” and “South Florida Foreclosure Defense Lawyers’ New Nemesis is The Robo-Witness: Bank Custodian of Records Without Personal Knowledge of the Loan Documents is Giving Hearsay Testimony.”

5. Non-Holder In Possession

Under Florida Statute 673.3011(2) ““a non-holder in possession of the instrument who has the rights of a holder,” may sometimes be entitled to enforce the note and foreclose in a foreclosure action.

However, that bank must be holding the note. If the complaint alleges that the lender was not in possession of the note, then they cannot legally foreclose. See, Seidler v. Wells Fargo Bank, N.A., 179 So. 3d 416, 420 (Fla. 1st DCA2015).

This is law derived from the Uniform Commercial Code, which has been adopted by the State of Florida. Legally, there are three different lenders who are involved with promissory notes with rights to enforce that note.

Under UCC Section 3-301, and Florida Statute 673.3011, the “persons entitled to enforce” are (i) the holder of the instrument, (ii) a non-holder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d).

In Florida, it’s rare to find foreclosures where the original lender is the one seeking to foreclose on the borrower. All too often, banks have sold those home loans to other lenders.

If these buyers of the mortgages seek to foreclose, then they can do so as a “person entitled to enforce” the promissory note if they can legally establish they are a “non-holder in possession who has the rights of a holder.”

This means providing the proper documentation and the proper business records, as discussed above. Failure to do so means that any foreclosure judgment is subject to reversal on appeal.

What Should You Do if You Want to File an Appeal?

If you want to appeal a foreclosure judgment (summary judgment or final judgment), time deadlines apply and you need to act fast. An experienced foreclosure lawyer should know how to file a request with the appeals court asking for a reversal of the trial court’s decision.

Go here to read the details on a  recent foreclosure appeal victory we achieved for our clients against Bank of America.

An experienced appellate foreclosure lawyer may be able to suggest alternatives to you as well. For instance, you may be able to file a “motion to vacate the foreclosure judgment” with the trial court judge.

Motions to vacate can be based upon things like new evidence or mistake. However, that procedure may not make sense for every case. Not every homeowner can or should spend the time, money and effort to file a request to vacate a judgment.

If you believe you have grounds to file an appeal from a foreclosure judgment, a good piece of advice is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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5 Key Issues Related to Florida Real Estate Contracts

Posted By on September 27, 2016

For real estate transactions in Florida the real estate contract controls the deal. This is the common understanding of most real estate professionals. However, these contract terms are based upon long standing legal principles which have been codified and become part of Florida’s contract law.  So, a more accurate statement is that Florida contract law is really what governs any conveyance of Florida real estate. Xanadu of Cocoa Beach, Inc. v. Zetley, 822 F.2d 982 (11th Cir. 1987).

Which means, that sellers and buyers should know something about Florida contract law before entering into one of the largest transactions they will make in their lifetime.

Here are 5 important things to know about Florida residential real estate sales contracts:

 

Bayfront Park, Miami, FL - IMG 8001

The South Florida lifestyle means a lively residential real estate market year-round (image: Miami’s Bayfront Park).


 

1. Real Estate Contract Forms.

Using standardized contract forms provided by a real estate broker is common in Florida.  Any real estate professional with experience has used one.

Usually, these forms are issued or endorsed by one of several Florida Realtor’s association or in conjunction with the Florida Bar Association. You can review the form and download a pdf version online at the Florida Realtors site.

Forms work in most residential sales transactions. They can save time and money and they are legal to use under our law. However, here are four important issues to consider:

  1. First, these forms can be slanted in favor of one party versus another.  The real estate agent can select which provisions to include and what items to check (shifting obligations from one party to another).
  2. Second, “standard” provisions can be omitted.
  3. Third, non-standard terms can be added and be made to look like they are “standard” (using an Addendum or handwriting in terms).
  4. Fourth, there’s no law that requires the parties to use a form. You don’t have to use the standardized contract provided by the real estate broker. It’s fine to draft and use your own real estate agreement. However, contracts related to Florida real estate do have to meet certain minimum legal requirements to be enforceable under our laws (for example, they have to be in writing).

2. The Buyer and the Seller.

The buyer and/or seller can be an individual, an LLC, a corporation, a partnership, an heir, a beneficiary and/or a Trust.

All of these parties can buy and sell Florida residential real estate as long as they are legally competent (over 18, not mentally incompetent and not under the influence of drugs or alcohol etc.) at the time that the contract is signed, and they are not contracting for something that is illegal or impossible. Baroudi v. Hales, 98 So. 2d 515 (Fla. 3d DCA 1957).

3. View the Contract as a Whole.

Hopefully, your deal will close without a problem.

However, if a problem arises, before or after closing, your contract will likely govern how the dispute is resolved. If the controversy gets before a judge, (which usually doesn’t happen until a mediation has occurred) he or she is going to read the entire contract. Not just a particular paragraph.

Why? One of the basic rules under Florida contract law is to read the entire document. This is the rule even if only a couple of paragraphs seem to apply to the conflict.  The court will consider the whole agreement to determine what the buyer and seller intended when the deal was entered into by the parties.

For instance, your real estate sales contract has definite times and dates for the payment of deposits. If there is a dispute about the timeliness of a payment, you might assume that the language of the deposit section of the contract is the only thing that matters. However, that’s not how it works under Florida contract law.

The judge will review the agreement in its entirety. If he or she does not find language that says meeting deadlines is an essential term of the transaction (See “Time is of the essence” provisions below), then being late with the delivery of a deposit is not going to support a breach of contract claim.

4. When Does Ownership Transfer to The Buyer?

When a Florida real estate contract is signed, is the buyer now the owner? Is the transaction completed?

Long ago, as soon as the real estate contract was signed, the buyer owned the property. A deed was just evidence of the conveyance to be recorded in the public records to put the world on notice of the transfer. However, nowadays, the signing of a contract is when the “closing process” begins, where surveys and appraisals are ordered, title and lien searches are conducted, and inspections are made.

During this time, the contract is alive and executory. Meaning, the contract is not fully performed; the deal is not completed. The real estate contract is simply an agreement to convey real property, by way of Deed at a closing, only after the parties have performed their obligations under the agreement. See First Mortg. Corp. of Stuart v. deGive, 177 So. 2d 741 (Fla. 2d DCA 1965).

5. Time is Of The Essence, or not.

In Florida, real estate transactions should be final within a reasonable period of time. What is “reasonable” depends on the circumstances.

However, most often, Florida real estate contracts are very specific about deadlines. So much so, that most contracts have language that impacts these deadlines by saying that a deadline must be performed timely or, stated another way, must be performed on or before the exact date stated in the agreement. The common term used for this language is the phrase “time is of the essence.”

This phrase has special meaning in the law; there’s lots of law on the books interpreting this provision of a real estate contract.

If your real estate agreement has a “time is of the essence,” provision, then you need to be vigilant. That’s because a seller, for example, can cancel a contract if the buyer fails to pay the deposit on the date it is due under the agreement or fails to close on the stated closing date.

This is true even if the buyer argues that the seller told him or her he would postpone closing. Or, that he or she would waive that provision. See, Arvilla Motel, Inc. v. Shriver, 889 So. 2d 887 (Fla. 2d DCA 2004). Spoken words don’t work to alter a written “time is of the essence” provision.

See: If a real estate contract makes time of the essence, is it necessary for the seller to give the buyer an opportunity to close after the closing date has passed?

Reviewing a Florida Residential Real Estate Contract

The best time to understand your Florida residential real estate contract is before it is signed. After it is signed, it’s a valid and binding legal document. You can still change it, but only if all of the parties agree, in writing, to do so.

That’s why having an experienced real estate lawyer on your side, working with you as you contemplate the transaction, is a prudent decision to make.  Your best interests will be served in ways that relying on the experience of the real estate agent cannot. (See Agents and brokers are not attorneys.)

If you or a family member are purchasing or selling real estate in Florida, a good piece of advice before entering into a real estate contract is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Rescission of a Residential Real Estate Contract in Florida

Posted By on September 20, 2016

When things go bad in a Florida real estate transaction, the buyer’s first thought may be to walk away. Just get out of the deal. Find another home to buy. However, is this possible? Can the buyer cancel transaction?

Under Florida law (contract and case law), a buyer is able, under certain circumstances, to terminate a residential real estate contract and walk away from the deal without penalty. One way a buyer can get out of a deal is by seeking “rescission.”

 

Contract 20160994
 

What Is Rescission?

Rescinding a real estate contract means the contract is considered under the law to have “no force and effect from the beginning.” Borck v. Holewinski, 459 So.2d 405, 405 (Fla. 4th DCA 1984). The contract is canceled.

In the words of one Florida court, it’s “unmade.” Borck, 459 So.2d at 405.

Is Rescission Defined in the Contract’s Language?

In Florida, some real estate contracts have specific provisions related to rescission. The contract may describe the exact circumstances that will allow for the rescission of the contract.

The Case of the Land-Locked Property

An example of rescission in a real estate contract occurred in the case of Hall v. Higgs, 452 So. 2d 1113 (Fla. 2d DCA 1984). There, the buyer sought to cancel the contract after learning the seller had failed to provide ingress to and egress from the land. The right to rescind was a defined term in the contract.

The contract was specific: if the seller could not provide the purchaser with a legal means to enter and leave the property, the buyer could cancel the deal. The seller was unable to provide access. The buyer sued for rescission, and won. The contract was canceled, and the earnest money was refunded.

Rescission Under Florida Contract Law?

Under Florida law, just because a real estate contract does not include the right to cancel or rescind the deal, it doesn’t mean the buyer is left without that remedy.

In these situations, the buyer will need to go to court and ask the Judge to cancel the deal. If successful, the Judge will simply enter an Order rescinding the deal with the goal of returning the parties to the same position they we are in prior to entering into the transaction.

In some instances, that Order is then recorded in the real property records of the clerk’s office in the county where the home or condo is located.

Grounds for Legal Remedy of Rescission

When does Florida law provide for the legal remedy of rescission? Canceling a real estate contract by law can happen because of several different issues or problems arising during the closing process.

Fatal Title Defect

For example, the buyer can choose rescission of the real estate agreement if he or she learns that their is a fatal title defect. If the seller is unable to transfer clear title at closing, then the buyer can cancel the deal. See, Am. Jur. 2d, Vendor and Purchaser §§ 279, 280.

Fraud

If the buyer was a victim of fraud in entering into the deal in the first place, then he or she can file a lawsuit to have the agreement undone. See, Am. Jur. 2d, Vendor and Purchaser, §§ 278, 282 to 285.

Mistake

Not every detail is known to the parties when the real estate sales agreement is signed. If the parties have made a real estate contract but they’ve done so after a mistake (”material mistake”), then Florida law will allow for rescission of the contract. Mar-Char Enter., Inc. v. Charlie’s The Lakes Restaurant, Inc., 451 So.2d 930 (Fla. 3d DCA), review denied, 461 So.2d 113 (Fla. 1984).

Status Quo After the Rescission

One of the key elements to canceling a real estate contract under Florida law is its “status quo” requirement. This is the need to place both the buyer and the seller in the same place they were in before the deal was struck.

Once the contract is rescinded, it’s of no force or effect under Florida law. It’s “unmade.” Courts will “unmake” a contract only it’s fair for both sides. Neither the seller nor the buyer should suffer loss as a result of the rescission.

Therefore, any benefit that either side got from the other has to be returned as a part of the rescinding of the contract. Am. Jur. 2d, Vendor and Purchaser § 521. The buyer, for instance, gets the earnest money deposit refunded to her.

What if the buyer already started making changes to the property and now wants to cancel the deal? The buyer can obtain a legal rescission only if he or she can show that paying a sum of money to the seller will be sufficient to make the seller whole, even if the buyer has made changes to the property. Smith v. American Motor Inns of Florida, Inc., 538 F.2d 1090 (5th Cir. 1976), on reh’g, 544 F.2d 900 (5th Cir. 1977).

Example of Court Denying a Rescission

There are certain circumstances where where judges have denied buyers the right to rescind a real estate contract. For instance, if the deed conveys more than either the seller or the buyer thought was being sold, then the contract may not be canceled by the court. See: May v. Holley, 59 So. 2d 636 (Fla. 1952).

The Building on the Beachfront Lot

In May v. Holley, some vacant land in New Smyrna Beach was sold to a man named T.W. Bush. A real estate contract was signed and the transaction was moving towards closing without any issues.

Things changed when the survey came back, and the parties discovered that a building thought to be entirely on the seller’s lot (that they did not sell) extended into the adjoining property (the property that was being sold to Mr. Bush).

The building encroached onto the lot being sold to Mr. Bush by 4 feet and 7 inches, which Mr. Bush wanted removed. Of course, the sellers didn’t want the building removed.

So, Mr. Bush sought to cancel the deal. He wanted to rescind the deal.

As a result, Mr. Bush filed a lawsuit that went all the way to the Florida Supreme Court. Result: no rescission. “A purchaser has no right to rescind because he has obtained more than he bargained for,” explained the Supreme Court.

There were other legal remedies available to Mr. Bush, but canceling the real estate contract because he got more than he bargained for was not among them.

(Another scenario: if the land is targeted taken by the government under its eminent domain powers, after the contract is signed, the buyer cannot move for rescission of the real estate transaction. Arko Enterprises, Inc. v. Wood, 185 So. 2d 734.)

Do You Want to Cancel Your Real Estate Contract?

If you are in the process of buying a Florida single family home or condo, then you may find yourself in a situation where you think it is wise to extricate yourself from the transaction. Can you cancel the contract? Will a judge agree to rescind the real estate agreement?

First things first, you should read the contract to see if rescission is a remedy under the terms of the transaction.

Second, if there is no contract provision for rescission, you should speak with a real estate lawyer to determine if Florida contract law will allow you the legal relief of canceling the agreement.

The bottom line is this, if you are facing situation where you believe rescission may be appropriate, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

Florida Foreclosure Appeal on The Issue of Standing – Victory Against Bank of America

Posted By on September 6, 2016

We do not make a practice of sharing every foreclosure victory in a blog post. It is not our style. However, the recent publication of our appellate win against Bank of America merits some discussion today because the ruling on the issue of “Standing” may be helpful to others who are fighting against the foreclosure of their home.

If you are concerned that you may lose your Florida home or condo to a bank foreclosure, or if you are already being threatened with foreclosure proceedings by your lender, then this post may be helpful to you.

Justice and law

 

The case itself is officially styled, Barnett v. U.S. Bank Nat. Ass’n, 186 So. 3d 585 (Fla. Dist. Ct. App. 2016), and it is the decision of the Florida District Court of Appeal for the Fourth District (the appeals court), of a decision initially made by the Broward County Circuit Court for the Seventeenth Judicial District (the trial court).
 

You can read the full text of the case here, on Google Scholar.

 

Understanding Who is Really Filing The Florida Foreclosure Lawsuit Can Be Tricky

Our clients are Florida homeowners Mr. Mark Barnett and his wife Mrs. Yvette Barnett. The foreclosing bank is much more complicated. It is a tiered bank, which is common in Florida foreclosure lawsuits.

What do we mean by tiered? In the foreclosure complaint filed against Mr. and Mrs. Barnett on May 25, 2010, the plaintiff described itself as “Bank of America, as Successor by Merger to LaSalle Bank, National Association, as Trustee for Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-11.”

This means that Bank of America (”BofAm”) was describing itself first as:

(1) successor by merger to LaSalle Bank, a National Association, meaning that LaSalle merged into BofAm and BofAm was then the successor in interest of LaSalle’s property holdings;
(2) including some Washington Mutual Mortgage Pass-Through Certificates, specifically the WMALT Series 2005-11, property which had been placed in trust with LaSalle, as as trustee.

However, if you read the entire opinion, you will see the following entities referenced, a total of eight (8) different institutions all involved in the Barnetts’ mortgage:

  1. Bank of America;
  2. LaSalle Bank;
  3. Washington Mutual Mortgage;
  4. First Savings Mortgage Corporation;
  5. Residential Funding Corporation;
  6. Mortgage Electronic Registration Systems, Inc.;
  7. JP Morgan Chase Bank, N.A.; and
  8. U.S. Bank Nat. Ass’n.

Every Florida Foreclosure Action Must Have Evidence: Check the Documents Attached to The Complaint

To file a foreclosure lawsuit, the bank has to file a pleading called a “complaint,” that explains things like (1) why the court has jurisdiction over the matter; (2) who the plaintiff and defendant are; and (3) the laws upon which the lawsuit is based (its cause of action).

To support a Florida foreclosure action, the bank needs to attach certain documents to the complaint as exhibits. These documents have to be properly executed (witnessed, notarized, etc.) and they are considered a part of the complaint itself. When these steps are properly taken, they may be considered evidence in the case (for example, if the defendant(s) do not deny the validity of the documents in their answer to the lawsuit, then the documents can be used as evidence).

In Mr. and Mrs. Barnett’s case, the B of A complaint alleged that B of A “is the current owner of or has the right to enforce the Note and Mortgage. See attached Exhibit C.”

1.  The note

When you flip over to the document marked as “Exhibit C,” the photocopy of the note has First Savings Mortgage Corporation as the lender.

NOT Bank of America. In fact, Bank of America wasn’t mentioned anywhere in the document.

However, that note did mention another lender. It had an undated special endorsement from First Savings Mortgage Corporation to Residential Funding Corporation.

Who is Residential Funding Corporation? Well, not a party in the case. Residential Funding Corporation remained a third party to all of these proceedings through the final appellate decision.

2.  The mortgage

The mortgage is also attached.

Here, again there is absolutely no reference to Bank of America. Or, LaSalle Bank for that matter. The bank named in the mortgage is shown as First Savings Mortgage Corporation.

Importantly, the mortgage includes the following language:

“”MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.”

3. The assignment

Further, a photocopy of an assignment of mortgage dated April 8, 2010, which had never been recorded in the Broward County Public Records, is also included with the complaint.

This document stated that it was transferring both (1) the note and (2) the mortgage from MERS to Bank of America. And it referenced B of A as being the successor to LaSalle Bank, with the same name designation in the complaint.

(So the complaint copied what was shown here in the MERS assignment for B of A, ie., “Bank of America, as Successor by Merger to LaSalle Bank, National Association, as Trustee for Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-11.” This is where the name of the plaintiff as shown in the complaint that started the foreclosure lawsuit originated.)

Did the Plaintiff Have Standing to Sue?

Here is where the fight began and where it was won. The Barnetts legally challenged B of A and its “standing” to file the foreclosure lawsuit against them. Standing is an important issue — if the suing entity (the bank or the Trustee) doesn’t have standing to file the lawsuit, then the case should be dismissed.  Here’s what was argued in the lower court case:

  • Bank of America had no legal standing to foreclose on the Barnetts.
  • The complaint failed to state a case against our clients under Florida foreclosure law.
  • The case should be dismissed because of these deficiencies.

During the case, B of A first tried to fix their papers by filing the original note and mortgage in the court file. Then in February 2013, U.S. Bank entered the case as a plaintiff, arguing that the right to foreclose had been transferred to it.

At the trial, there was no jury; the judge entered his decision. Even though U.S. Bank only called one witness, a home loan research officer for the servicer of the loan, JP Morgan Chase Bank, N.A., who “gave confusing testimony about the ownership of the loan,” and no testimony regarding what bank had possession of the note at the time that the foreclosure lawsuit was filed — the bank won.

What? According to the trial court judge, “…I find that by virtue of possession of the original Note that there was standing at the filing of the suit, of the foreclosure action.

So, Mr. and Mrs. Barnett decided to keep fighting by filing an appeal.

Florida Appellate Court Agrees to Review The Court’s Decision

In Florida, when a trial court judge makes a decision on standing, the appeals court can review that case “de novo.” This means that the appeals court makes its own decision on the evidence. See, GMAC Mortg., LLC v. Choengkroy, 98 So.3d 781, 781 (Fla. 4th DCA 2012).

In the appeal we filed, we simply argued to the appellate court that the plaintiff had no standing to pursue the case.

Under Florida law, standing to sue for any plaintiff seeking foreclosure must be established AT THE TIME THAT THE LAWSUIT IS FILED. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012); Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012). “[P]ossession of the note determines standing to foreclose.” Everhome Mortg. Co. v. Janssen, 100 So.3d 1239, 1240 (Fla. 2d DCA 2012).

The appeals court agreed. U.S.Bank never proved that Bank of America had standing to sue Mr. and Mrs. Barnett. Specifically, there was no evidence put before the court and into the record that B of A had actual possession of the note when the lawsuit was filed.

And the MERS assignment? U.S. Bank never provided any evidence (1) showing when the assignment of the note and mortgage to B of A happened, before or after that undated endorsement of the note to a third party; nor any proof that (2) proved the undated special endorsement on the note from First Savings to the third party.

“[T]he unexplained, undated endorsement to the third party is … circumstantial evidence that Bank of America may not have possessed the note at the time suit was filed.” Barnett, at 186 So.3d at 587.

Case Dismissed by the Appellate Court

After finding that the trial court made an error in ruling that there was standing to sue Mr. and Mrs. Barnett, the appeals court reversed that judgment and ordered the case dismissed. Under Florida law, the appellate court has the power to order that a case be dismissed in its entirety (or it can order that a particular ruling be reversed and the issue sent back down to the trial court to render a decision using the new ruling as its guide). Klemencic v. U.S. Bank Nat’l Ass’n, 142 So.3d 983, 984 (Fla. 4th DCA 2014).

Sometimes, Justice Means Having To Take Your Case Up On Appeal.

Mr. and Mrs. Barnett had to fight both at the trial court level and at the reviewing court (appellate) level to get justice in their case. It’s a hard road that takes time and money and comes with lots of emotional stress and frustration.

These are two courageous clients, who were willing to stay in the fray through the appellate process and not give up and throw in the towel. We are proud to have been their appellate advocates!

What’s The Bottom Line?

The bank lost because it didn’t follow the rules. It didn’t have admissible and authenticated evidence to file a foreclosure lawsuit. Before they filed the foreclosure lawsuit, they had to have physical possession of the note (unless the note was lost, destroyed or stolen). That’s the law.

This is far from the first time this has happened — that a bank tries to foreclose without having its legal ducks in a row. For details on how bad these cases can be, check out our free ebook here, particularly section two, “Things Get Lost: Lenders Lose Key Documents in Gleeful Days of Making More and More Money,” on page 5.

If you are facing foreclosure and believe the bank’s paperwork is not in order, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Concealment, Nondisclosure And Silence By Florida Real Estate Sellers

Posted By on August 16, 2016

In Florida, in order to have a binding contract to purchase real estate, both the buyer and seller must sign a written agreement that includes the material terms of the deal (price, closing date, description of the property, financing, etc.).  That contract controls the transaction and it spells out the parties’ obligation to one another and to getting the deal closed. If the seller fails to perform his/her duties under the agreement or fails to disclosure material information about the property, then he/she may end up being sued for breaching the contract or for fraud for failing to disclose information about the property (to address the issue of non-disclosure, a buyer should require the seller to provide a seller disclosure statement at or near the time of signing the contract).

Breach of Contract Lawsuits Between Buyers and Sellers

In Florida, standard real estate contracts provide a remedy when there is a breach (or default) of the contract by either the seller or buyer. The language usually states that a dispute will be settled by mediating the claim or controversy.  If the issue cannot be resolved at mediation, then the parties are free to file a lawsuit in the county in which the property resides.

Read: What Happens When A Seller Defaults on a Real Estate Contract

A common example of a breach of contract claim is if the seller refuses to return or release the deposit to the buyer after the buyer properly cancels the deal. Another example: if the parties get to the closing table and the seller has failed to fix the air conditioning unit or repair the swimming pool as required under the contract.

 

Mold Remediation

Seller Keeping Secret About Mold Growing Behind the Condo Wall May Mean a Fraud Lawsuit Down the Road


 

Fraud Lawsuits

Unfortunately, there are times when the dispute is more serious than a simple breach of contract claim. Sometimes, the seller commits an intentional act or a FRAUD on the buyer.

Fraud is a “tort” under Florida law and tort claims allow different kinds of damages to be awarded to the injured party than in a breach of contract case. In fraud cases, for instance, a defendant may end up be held liable for “exemplary” or “punishment” damages — something that is not available in a contract action.

Fraud by the Seller in a Residential Real Estate Transaction

Many sellers may not realize that keeping their mouths shut can end up costing them a lot of money in damages and attorney’s fees.  That’s because in a residential real estate transaction, Florida law requires the seller to disclose material information the seller knows about the property with the buyer.

If the seller intentionally conceals important information about the property from the buyer, then he/she may be committing fraud. If the buyer is harmed as a result of the seller’s silence, then that buyer may be able to sue the seller for damages or to have the transaction cancelled.

How can a buyer successfully prevail in a claim for fraud against a seller that failed to tell the buyer material information about the property? The answer is when the buyer can, using admissible evidence, prove each and every element of a fraud claim. (Please note, not every case of a seller’s silence about an issue concerning the home or condo will be successful – these are not easy cases to win.)

4 Elements Needed to Prove Seller’s Fraud by Omission

In order for a buyer of Florida residential property to prove that he or she has been the victim of fraud based upon a seller’s concealment of material information, the buyer must be able to prove specific facts that establish the fraud.

These four facts are:

(1) the seller of a home must have knowledge of a defect in the property;
(2) the defect must materially affect the value of the property;
(3) the defect must be not readily observable and must be unknown to the buyer; and
(4) the buyer must establish that the seller failed to disclose the defect to the buyer.

See, Jensen v. Bailey, 76 So. 3d 980 (Fla. Dist. Ct. App. 2011); Johnson v. Davis, 480 So.2d 625 (Fla.1985).

Does the Seller have a Legal Duty To Share Material Information with the Buyer?

In Florida, when someone is selling a home, condo, or other piece of residential property, certain legal duties are placed upon them in order to insure fair dealing with the buyer. These are legal duties that are defined outside of the sales contract. In Florida, if the seller knows of information that will materially impact the market value of the property, and it’s not known to the buyer, then the seller is required to disclose that information to the buyer.

If the seller fails to share the material information with the buyer, and this usually happens because the seller is afraid that the buyer will walk the deal or want to renegotiate down the purchase price, then the seller puts him or herself in the position of being sued for the legal claim of fraudulent concealment. This can leave the seller exposed to a lot more financial liability than a breach of contract action.  See, In re Osborne, 455 B.R. 247 (Bankr. M.D. Fla. 2010) (applying Florida law).

Is a Seller Liable For Everything They Hide From a Buyer?

Under Florida law, a Seller will not be held liable for everything he/she fails to disclose to a buyer. Only “material” misrepresentations will support a fraud claim.

Additionally, the damage to the value of the property must be proven; it can’t be speculative or subjective.

Example of Fraudulent Concealment

As stated above, the omissions have to be “material” and significantly impact the value of the property. For instance, if the seller fails to disclose to the buyer that the condo had suffered a lot of water damage from a leak and that the condominium has mold, then the buyer likely has a fraud claim. This is a material misrepresentation with a distinct impact on the condo’s market value that can be established and quantified. See, Postregna v. Tanner, 903 So. 2d 219 (Fla. 2d DCA 2005).

Patching Up Cracks to Hide Foundation Problems

Another example: if the seller patches up cracks in the property so the buyer can’t see, for example, a crack in the foundation or in the swimming pool, then the buyer likely has a fraud claim against the seller. Here, the buyer may sue for fraudulent concealment when he or she discovers the home has foundation problems and the pool is cracking — even if it’s long after he or she has left the closing table. See, U.S. Home Corp., Rutenberg Homes Div. v. Metropolitan Property and Liability Ins. Co., 516 So. 2d 3 (Fla. 2d DCA 1987).

Can a Seller’s Broker May Be Liable for Fraudulent Concealment?

In today’s marketplace, most sellers let their real estate professionals speak for them — they show the home or condo to prospective buyers, they answer the buyer’s questions, they have the opportunity to disclose material information to the buyer much more often than the actual property owner.

So, if the real estate broker is the party who is responsible for intentionally hiding that material information from the buyer, then is the seller free from being responsible here? Can the seller avoid being sued for fraudulent concealment just because the seller can point his/her finger to the real estate broker (and an agent) who had the direct communications with the buyer?

No. The seller is the party who signed the Sales Contract. While the real estate broker (and their agent) may be liable for fraud damages (and may be included in the buyer’s fraud damage claims), the seller cannot escape legal responsibility for intentionally failing to share material information about their home or condo just because he/she has hired a professional to help get it sold. If the seller intentionally kept material information secret from the buyer (like mold in the condo walls), then the seller is liable for that bad act even if he or she had a real estate broker representing them in the deal.

Are You a Victim of Fraud By a Seller or Realtor?

If you are concerned about a recent Florida residential real estate transaction and suspect that the seller hid some vital information about the property from you, then you may have a fraud claim against the seller. An experienced Florida real estate lawyer can help you assess the situation to determine if the facts in your circumstances will meet the legal elements for a fraudulent concealment case under Florida law.

A good piece of advice if you are involved in a real estate transaction where the seller or realtor has concealed material information or has made materially untrue statements, is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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What Happens When a Seller Defaults on a Florida Residential Real Estate Contract? – Part II

Posted By on August 2, 2016

What happens in a Florida residential real estate transaction when the seller doesn’t do his or her part and close the deal? Or, the seller makes a material misrepresentation about the property and the buyer purchases the property relying on that bad information?  In Florida, both contract law (see the residential sales contract) and real estate law provide remedies for the buyer.
 

Miami Beach beach, June 2004

Having a Home in Miami Beach is the Dream for Many Buyers


 

Buyers’ Remedies When the Seller Defaults on a Residential Real Estate Contract

Even though the Seller may have defaulted on the Contract (intentionally or not), often times the buyer decides he or she really wants the property or he or she wants to be compensated for their time and expense in trying to purchase the property.  One option a buyer may have is to force the Seller to close the deal by suing the Seller for specific performance. Alternatively, the buyer can simply opt to sue the seller for his or her damages (we are assuming these options are available under the contract – some lawyers may limit the buyer’s remedies in the event of a default by the Seller).

Specific Performance Ordered by the Court

In a lawsuit seeking specific performance, the Buyer seeks a judgment from the court that orders the seller to complete the transaction and transfer title to the buyer. Here, the buyer will likely need to show the judge evidence that he or she has tendered the seller the purchase price; or alternatively, that he or she stands ready, willing, and able to do so once the judge orders the closing to happen.

Suing the Seller for Money Damages

Sometimes, the buyer may decide that the best course of action for him or her to take is to walk away from the property and sue the seller for breach of the contract instead. Here, the buyer seeks money damages from the seller that will include (1) refunding any money that the buyer paid to the seller as part of the deal (earnest money deposits) as well as (2) any financial harm or expense incurred by the buyer as a result of the seller’s breach and failure to close (inspection costs, survey expenses, title search expenses, appraisals, fees paid to an association etc.). See, In re Ecoventure Wiggins Pass, Ltd., 419 B.R. 875 (Bankr. M.D. Fla. 2009) (applying Florida law).

What if There Was a Mistake?

Sometimes, mistakes are made. For instance, a buyer may enter into a contract with the seller only to find that there’s a problem. One such mistake is where the buyer saw a different lot of land than the one that is being sold by the seller (the legal description in the contract doesn’t match the one in the deed).

This is called a “mutual mistake,” and it happens more often than many people think. See, Peace River Phosphate Mining Co. v. Thomas A. Green, Inc., 102 Fla. 370, 135 So. 828 (1931).

Sometimes, real estate deals are done without physical inspection of the property or its improvements. If the real estate is sold to the buyer based entirely on a legal description, then the seller may not be held to account to the buyer who made a mistake about which lot he or she was buying in a new subdivision.

However, if the seller takes the step of pointing out to the buyer the location of the home or lot being sold (for example, telling the buyer, ”it’s right across from the pool”), then the seller may be held liable to the buyer for any mistake that is made. See, Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927).

As the Florida Supreme Court explained long ago in the Langley decision: “… misrepresentation of material facts, although innocently made, if acted on by the other party to his detriment, will constitute a sufficient ground for rescission and cancellation in equity.” Langley, 114 So. at 771.

What About Fraud by the Seller?

There are times when sellers don’t act fairly. If the buyer believes that he or she is a victim of fraud by the seller, then the buyer has a few remedies it can choose among: seek to “rescind” the deal and get his or her money back, or sue the seller for fraud and ask for damages.

If the buyer decides to sue for damages, the buyer keeps the property and sues the seller only for the financial damages that the buyer has sustained due to the fraud and intentional misrepresentations made by the seller.

If the buyer instead decides to “rescind” the transaction, the buyer asks the court to have the seller return of all of the money that he or she has paid to the seller and all of the expenses incurred in purchasing the property (this, of course, assumes the seller can be found and he or she still has the money). See, Boca Palm Investments, Inc. v. Jerdon Inc., 568 So. 2d 505 (Fla. 4th DCA 1990).

Caveat: the buyer will likely need to be able to prove that he or she did not know of the claimed misrepresentations and fraud on the part of the seller until after closing took place. If the buyer knew or should have known of the misrepresentations or fraud before the closing and choose to close the deal anyway, then the doctrine of “merger” will likely prevent the suit from surviving a motion for summary judgment.  Fraser v. Schoenfeld, 364 So. 2d 533 (Fla. 3d DCA 1978).

What is a Fraudulent Misrepresentation?

In the world of real estate sales, every day lots of representations are made to buyers. When do these representations go over the line? A fraudulent misrepresentation must be a factual claim, not a statement of opinion, belief, or estimate by the seller. Greenberg v. Berger, 46 So. 2d 609 (Fla. 1950).

Sellers who say things like “I think it’s the best ocean view in South Florida!” aren’t committing fraud. That is an opinion. The buyer still has the legal duty of checking out that ocean view and deciding for himself if the condo is worth the price.

However, a seller who tells a prospective condo buyer that he or she received $36,000/year in condo rental fees during the past year is providing a specific statement of fact, and if the buyer goes through with the closing, relying on that statement as an accurate fact of past rental income, and the information is materially untrue, then the buyer has a basis for a fraud claim against the seller.

See: When Your New Home Isn’t What You Expected: Misrepresentation by a Real Estate Agent

What Should You Do?

If you have problems with your seller in a pending sales agreement to sell residential real estate here in Florida, or if you have discovered things aren’t as you understood them to be (as told by the seller or by his or her agent) before closing, then you have some decisions to make.

Do you want to walk away from the property and just get your money back? Do you want to force the sale of the home or condo? Each situation is different, and you have to make your decision based upon what is best for you economically and under Florida law.

A good piece of advice if you are involved in a real estate transaction where the seller is in default or where a seller has made untrue statements about the property you purchased, is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Related:

What Happens When a Seller Defaults on a Residential Sales Contract in Florida?

Misrepresentation by a Real Estate Professional: Claims for Negligent or Unintentional Misrepresentation

When Florida Home Buyer Discovers His New Property Floods: A Case of Fraudulent Misrepresentation

Did You Overpay Due To A Real Estate Agent’s Misrepresentation?: The Case of the Fake Engineering Report

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

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