Deficiency Judgments and Your Credit: Did the Debt Owner Furnish Accurate Information to The Credit Reporting Agencies?

Posted By on October 14, 2014

Update to Deficiency Judgment Collection Efforts

We have asked our clients to obtain a copy of their credit report to determine if the amount reported as due and owing is correct. We are doing so because we have noticed in some instances the amount being sought in the deficiency lawsuit differs from the amount reported to the credit reporting agencies (CRAs). In other instances, we have noticed that the original judgment creditor (the party who foreclosed) reported an amount different from the amount being reported by debt buyers/collectors, like Dyck O’Neal and ClearSpring Loan Services, formerly known as Vantium, to the CRAs.

One question that arises from this discrepancy, is whether or not the Fair Credit Reporting Act applies and if it is being violated. Did the debt collector adequately investigate the amount due before furnishing information to the credit reporting agencies? Another question, is whether Fannie Mae, or other debt sellers, ever told Dyck O’Neal, or any other debt buyer, that some of the debt may be legally noncollectable? The plot thickens and the foreclosure mess continues to morph into another scary object.

You may also be interested in:

Did You Get A Letter From A Debt Collector For A Florida Mortgage Deficiency Related to a Foreclosure Or Short Sale?

Dyck-O’Neal Increases Florida Deficiency Judgment Collection Efforts?: 19 Articles About Florida Deficiency Judgments

Is a Dyck O’Neal Lawsuit Valid if it is Served After July 1, 2014?

 

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

How Do You Draw the Ownership Line Between Florida Condominium Units and Common Elements?

Posted By on October 7, 2014


Here in South Florida, condominium ownership is extremely popular. Our local skyline is filled with condo towers, particularly on or near the oceanfront where condominium projects can offer residents beach access and beautiful waterfront views. Accordingly, there is a lot of law on the books in Florida on how condominium ownership works, and how controversies are to be resolved between individual condo owners and the condominium boards that oversee the everyday operations of the community.

What Does the Condominium Unit Owner Own?

For each buyer of a Florida condo, it’s important to understand where their individual property rights in their home begin and end, and where their ownership changes into that of a shared property right in the condominium’s “common areas” or “common elements.” The condo owner has the same rights as an owner of a single family dwelling, or suburban home, regarding decorating and repairing and maintaining his specific condo unit. Inside that unit, the owner is king.

However, the condo owner’s kingdom has jurisdictional boundaries: step across the ownership line, and the condo unit owner has a shared interest in the rest of the condominium real estate. The stairway inside the condo? The condo unit owner’s sole property interest. The stairway next to the tennis courts? The condo unit owner’s shared ownership with all his other condo unit neighbors.

How Do Condo Owners Determine Where The Property Line Is Drawn?

As a general rule, an individual condo unit is the part of the condominium where each condo owner resides or the “interior shell” (that is, the part of the condominium that is deeded to the owner or the part of condominium that the owner holds legal title to), and the common areas are everything else that is related to the condominium property (common areas are usually maintained by the association unless the declaration says otherwise). However, to be exact, each condo unit owner needs to look to Florida law and the governing documents.

1. Florida Condominium Act

First, the determination of legal rights for Florida condos is delineated in the Florida Condominium Act. Here, for example, if there is a debate between the unit owner and the condo board regarding who is responsible for a repair expense, Florida Statute 718.113 of the Florida Condominium Act will provide the answer.

2. Florida Declaration of Condominium and Bylaws of Association

Second, the actual property lines and real estate rights of the condo owner will be defined in the particular real estate documents that are specific to his condo. The definition of the condo “unit” and the “common areas” of each Florida condominium are defined in detail within the contractual documents creating the condominium itself, I.e., its Bylaws and Declaration of Condominium. These are documents which are provided to the condo owner at the closing table when he buys the unit.

When the real estate development legally becomes a condominium, either as a new project or as a transition of an existing multi-family property into a condominium, a “Declaration of Condominium” is filed in the county real property records. This is of “…paramount importance in defining the rights and obligations of unit owners.” Hidden Harbour Estates, Inc. v. Basso.

The Bylaws of a Florida Condominium involve the documents that create the organization that will oversee the operations of the condominium and create the condominium association. Each Florida condominium is operated and managed by its Condo Board.

3. Deed Restrictions

Third, there are real estate records that may also impact the property rights of the condo unit owner. Deeds to the real estate upon which the condominium sets may have restrictive covenants (deed restrictions) that impact where the line is drawn between each owner and the condominium ownership as a whole.

Why is This Important to the Condo Unit Owner?

In Florida, the Florida condo owner is free to enjoy his condominium as he wishes. He can paint all the interior walls black if he chooses, for example. However, the Florida condo owner shares the ownership of everything outside his unit with his fellow condo owners — and this can mean that the condo owner may not be able to do some things he would like to do – like paint the exterior of his condo entrance black – and he may have to do some things he’d prefer not to do – like pay his share of a special assessment in order to build a hot tub next to the swimming pool.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Major Repairs to Your Florida Condo: Who Pays?

Posted By on September 30, 2014

As we all know, here in Florida, condominiums are a very popular form of residential real estate ownership. Floridians as well as investors, retirees, and part-time residents (”Snowbirds”) find lots of advantages to buying a condo in our state. There are lots of condos to choose from, especially in South Florida. Condo units are available in high, skyline towers as well as in lower, waterfront complexes close to the oceanfront.

However, just like any other piece of residential real estate, Florida condos need to be repaired. Sometimes the repairs are minor — changing out a faucet, fixing a running toilet — and it’s clear that the unit owner is responsible for getting the work completed and paying for those repairs. In other situations, however, the line between the condo unit owner’s responsibility and the duty of the overseeing condominium association is not clear. Many major condo repairs fall into this gray area.

1. Condominium Owners and the Condo Association

When repairs are needed to a Florida condominium, there are two potential parties responsible for paying for the work: the owner of the individual condo unit or the condominium association. In deciding who pays the bill between the owner and the association, Florida law controls. See, Florida Statute 718.113 of the Florida Condominium Act.

According to that statute, the individual owner has sole ownership of his home or “unit,” and has joint ownership of the common areas, which is all of the property in and surrounding the condominium that aren’t individual homes or “units.” Where the ownership line exists between the owner’s unit and his shared ownership in the common areas is found in the real estate documents creating the condominium itself.

These documents include the condominium creation documents filed in the public record like the Bylaws and the Declaration along with limitations found in some real estate records which include restrictive covenants (i.e. restrictions in deeds). (Each owner usually receives a copy of all these documents when he or she contracts to purchase their condo unit.)

As stated above, condominium common areas are collectively owned, and their boundaries are identified in the condo documents. Usually, condo common areas involve things like the pool and parking areas, sidewalks; however, they also include areas within a condo unit, including the drywall on the exterior wall of each unit and the cement flooring of each unit.

While the individual condominium documents may specify things differently, as a general rule here in Florida, the Condo Association (all the joint owners) pay for maintaining and repairing the common areas and the unit owners pay for their own unit’s maintenance and repair. If the joint owners have assigned a portion of the common areas for one unit owner’s sole and private use, then that owner may be held responsible for this section’s maintenance and repair, as well.

2. Do you need permission to make repairs to your unit?

What about when repairs are made by the unit owner which are found unacceptable by the condo association? For instance, what happens if the unit owner repairs a rotting wood balcony and the association finds the material used on the new balcony is unacceptable? Who pays to repair/replace the vetoed balcony material?

Again, this will depend upon the language within the specific documents controlling the condominium. The specific provisions in the condo documents regarding alterations and repairs to unit balconies will need to be examined. Another factor to be examined will be the Florida Condominium Act.

However, as a general rule, the unit owner normally pays for the replacement of the balcony material in the above scenario if the owner chose the material, without approval, that did not meet with condominium standards.

3. Material Alterations

Sometimes, big changes are required (pursuant to a 40 year inspection finding) or needed in a condo community. In this regard, Florida Statute 718.113(2)(a), provides that 75% of the entire membership must approve a “material alteration or substantial addition” to the common elements, unless the declaration provides for an alternative approval method.

Big changes mean the majority of the unit owners must agree, because the unit owners will all be responsible for the expenses involved in these changes or repairs. Add a pool or tennis court? Extend the parking lot? These are “material alterations” or “substantial additions” to the condominium and their cost must be shared.

What is a “material alteration” under Florida law?  A change to the condominium property will be considered material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Real Life Examples of Florida Real Estate Agents Doing Bad Things

Posted By on September 23, 2014

Florida buyers and sellers are victims of the wrongful acts of real estate agents every day. Don’t be a victim; educate yourself.

 

 

The real estate industry works hard to promote its own as professionals worthy of the public trust as people buy and sell their homes, condos, and other real property. Most real estate brokers and real estate agents do act with professionalism; however, as with any profession, there are a lot of bad acts done by real estate professionals all the time here in Florida.

It’s important not to assume that the real estate agent you are working with during buying or selling your home or condo is immune to doing something wrong. Consider the following examples of wrongful acts done by real estate agents and real estate brokers for which they were disciplined by their licensing board.

Examples of Wrongdoing by Florida Real Estate Agents

These examples appear in the public listing from the 2012 Disciplinary Proceedings Before the Florida Real Estate Commission (FREC). The following are only a selection of the complete 23 page listing of serious wrongs done in a single year by people working in the Florida real estate industry:

1. Real estate agent took but did not deliver a security deposit; license was revoked.

2. Real estate agent lost their license after they failed to report to the FREC that they had entered a guilty plea for third degree felony grand theft; license was suspended.

3. License was suspended for six months after real estate agent failed to notify the FREC that he had pled guilty in a criminal matter to a felony charge that involved a crime of moral turpitude or fraudulent or dishonest dealing.

4. Real estate agent failed to deliver escrow funds pursuant to a property management agreement; the FREC banned this real estate professional from working in property management in the State of Florida forever.

5. Unlicensed real estate agent worked as a licensed real estate associate, misled the seller that the buyer had placed money into escrow; her lapsed license was revoked.

6. Unlicensed real estate broker worked with property management and leased property to the detriment of landlord and tenant; lapsed license was revoked.

7. Licensed real estate agent operated as a broker, collected a commission without notification or consent of her registered broker. License was revoked.

8. Licensed real estate agent failed to deliver rents paid by tenants. License was revoked.

9. Unlicensed broker collected commissions on real estate transactions. License was revoked.

10. Real estate broker, after demand of the person entitled to such accounting and delivery, failed to deliver to them money, check, and/or draft in violation of Florida Statute 475.25(1)(d)1. License revoked.

11. Real estate broker intermingled escrow funds with funds in the brokerage’s management account. License revoked.

12. Real estate broker failed to account for security deposit held in escrow; failed to properly submit the dispute to the FREC; failed to produce requested documentation of the property transaction and proof that the security deposit still being held in escrow. License revoked.

13. Real estate agent filed documentation with false or unauthorized information into public real estate records; as well as failed to reveal to the buyer the identity of a corporation as owner of subject property. License revoked.

14. Real estate agent filed a false lien on a residence in an attempt to coerce payment of funds for which she was not entitled.

15. Unlicensed real estate broker misrepresented herself as a broker and held out her brokerage as a legal real estate business entity under Florida law.

Have You Been Hurt in a Florida Real Estate Deal?

If you believe that you or a loved one has been the victim of a real estate professional in your real estate transaction, then you may need to visit with a Florida real estate lawyer to determine what your rights and remedies may be. This is true regardless of whether you are a buyer or seller, landlord or tenant. Complaints can be filed with the licensing board, of course, and other avenues of justice can also be explored, too.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Watch Out for Unlicensed Real Estate Agents in Florida

Posted By on September 16, 2014

Be careful not to be the victim of an unlicensed real estate agent or real estate broker when buying or selling Florida real estate. 

 

Real estate transactions that are based upon mistakes or fraud can cause serious harm to buyers and sellers — accordingly, the Florida real estate industry is heavily regulated — this has never been more true than the last few years of rampant foreclosure fraud.

Florida Real Estate Industry is Heavily Regulated

In Florida, laws written by our Legislature as well as court decisions act to protect both commercial real estate transactions and residential real estate deals. However, residential sales are offered much more protection because average citizens are not assumed to be as savvy as business persons in buying and selling property; thus, residential real estate is more vulnerable to wrongdoers taking advantage.

One of the ways that people are protected by Florida law from being hurt in the purchase or sale of a Florida home or condo is by the statutes requiring all real estate agents and real estate brokers to be licensed by the State of Florida.

Specifically, people who wish to work as real estate agents in the Sunshine State must meet the requirements of the Florida Department of Business and Professional Regulation (”DBPR”) in order to be issued an official license to act as a real estate professional here. That’s not all. Every year, they have to continue to meet the licensing requirements of the DBPR including keeping up with educational requirements and other prerequisites for maintaining their license in good standing.

Unlicensed Real Estate Agents Operate Illegally

Nevertheless, there are unscrupulous individuals who are active in the Florida marketplace who try to profit from real estate commissions without bothering to be officially licensed with the DBPR. Those people likely will not have the knowledge and expertise of a licensed Florida real estate agent, and even if they do, they may well not bother to adhere to the ethical considerations of licensed real estate professionals.

In Florida it is a serious crime to act as a real estate agent without being properly licensed. It is a felony under Florida Statute 489.127 to act as a real estate broker or a real estate agent in the State of Florida without proper licensure.

Not all unlicensed real estate agents are operating with criminal intent, but they are all outlaws in the sense that they are working illegally because they have failed to get a real estate license in order to do the work.

Dangers of Working With an Unlicensed Real Estate Agent or Broker

It is dangerous for buyers and sellers of Florida residential property to work with someone who is not vetted by the DBPR and properly licensed in good standing as a real estate professional. It is risky for the financial well being of those involved in the transaction, and it may sometimes be personally dangerous as well.

Think about it. Going to see empty properties with one of these Black Market agents may invite personal harm to you or your family in the form of theft or worse as well as risking your finances and money to someone who is operating under the radar.

Protecting Yourself Against an Unlicensed Real Estate Agent

The easiest way to make sure that you are protected against an unlicensed real estate agent is to ask for verification of a DBPR license. The DBPR website can also be used to confirm that a real estate agent or real estate broker is operating legally. Just go to www.MyFloridaLicense.com or call the DBPR at 1-850-487-1395.

If you have been working with an unlicensed real estate agent or broker, you may be thinking it will allow you to pay less in commissions or otherwise get a better deal. Don’t count on it. And if you do go through with a closing and later find you’ve been harmed by an unlicensed agent, then your legal remedies may be limited.

A large percentage of licensed real estate agents and licensed real estate brokers have protections in place (like errors and omissions insurance policies) in the event that someone is harmed in a real estate deal. Unlicensed agents rarely have the same protections set up for you, and the reality is that they may even be hard to locate after a closing and after the discovery that you’ve been harmed.

If you think you have been or may be involved with an unlicensed real estate agent in a Florida residential real estate transaction, then getting help from a Florida real estate lawyer can be invaluable in protecting you in what may be one of the biggest transactions of your lifetime, buying your family home or retirement condo. There may be ways to block or to minimize the harm here that a Florida real estate attorney can explain and implement to help you.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

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