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.

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

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.

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

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.


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.


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.

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

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.


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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.

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

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.


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


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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.

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

What Happens When a Buyer Defaults on a Florida Real Estate Contract?

Posted By on July 26, 2016

In Florida, buyers breach real estate contracts all of the time and in all sorts of ways. When a buyer fails to meet his or her obligations under a sales contract, often times it leaves the seller wondering what steps to take now that the buyer has failed to close the transaction.

Should the seller sue the buyer for money?

Should they rescind the deal and try again with another purchaser?

Should they force the buyer to complete the transaction?

What about any damages they’ve sustained by the buyer breaching the contract — how does the seller get compensated for that harm?  What about the deposit?

Florida law – real estate law as well as contract law — provides sellers with a variety of legal remedies.  However, in most Florida real estate contracts, the agreement will spell out the remedies available to the seller in the event of a default by the buyer (that’s one of the many reasons why it’s important to READ the contract).


South Palm Beach condominiums from lake

South Palm Beach Condominiums: Lake View


Alternative Remedies

When a buyer breaches a real estate contract, most sellers get upset and bark out that they are going to sue the buyer for their damages while at the same time forcing the buyer to purchase the property. However, that’s not the way things work; under Florida law, the seller must choose between alternative remedies.

When a buyer breaches a real estate contract, a seller must decide whether to close the transaction, seek specific performance of the agreement or seek monetary damages for the breach. See, Clements v. Leonard, 70 So. 2d 840 (Fla. 1954).

The choice to sue for breach of the sales contract is called a remedy “at law.” The choice to compel the buyer to go through with the purchase of the property is called a remedy “in equity.” The seller must choose one route or the other, and may be well advised to seek the assistance of experienced real estate counsel in making that call.

Abandonment of the Contract

Sometimes, it’s hard to tell if a deal has gone south or not. However in most cases, its pretty clear that the deal is not going to close because the buyer is unwilling (i.e. the buyer is unhappy with the results of an inspection) or is unable to close (i.e. the buyer fails to get approved for financing) and communicates that information with the seller.

However, there are times when the seller isn’t sure of what’s happening. The buyer may be saying one thing, but doing another or the buyer may not be saying or doing anything at all. Under Florida law, when a buyer does not fulfill any obligation under a contract, or does not take any steps towards completing a deal, the seller may be able to claim that the buyer has abandoned the contract.

The Florida Supreme Court has long recognized that a buyer can abandon a contract by simply dragging his or her feet for so long that the lapse of time itself communicates that the buyer is no longer interested in completing the transaction. See, Rosenthal v. Largo Land Co., 146 Fla. 81, 200 So. 233 (1941); Kuharske v. Lake County Citrus Sales, 44 So.2d 641 (Fla. 1949).

What Should You Do If a Buyer Defaults on a Residential Sales Contract?

If you are having a problem with a pending real estate transaction in Florida, then as a seller there are both legal and equitable remedies available to you to deal with the issues preventing the deal from closing. Should you seek to enforce the sales contract and require the buyer to close? Should you rescind the contract and let the buyer out of the deal? Or, should you retain the buyer’s deposit and move on? Each remedy has its own unique legal ramifications.

An experienced Florida real estate lawyer can explain the nuances of your particular situation and help you decide which alternative is in your best interests.

A good piece of advice if you are involved in a real estate transaction where the buyer is in default, 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.

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

Protecting a Bona Fide Purchaser of Florida Residential Real Estate

Posted By on July 19, 2016

Under Florida law, a “bona fide purchaser” of real estate is afforded certain protections including ownership and title. The rule essentially provides a buyer with superior rights to property over those who may have valid interests in the property, albeit unrecorded ones.

The recording of documents in the public records are done so for important reasons. As discussed in our prior post, it is critical to have any interest (ownership, lien, creditor interest, inheritance right, etc.) documented and recorded in the Florida public records of the county where the property is located. As a general rule, legal notice which is timely recorded in the proper county clerk’s office is what gives anyone with an interest in Florida real estate the ability to claim a superior interest in property against those who subsequently claim an interest in the same real estate.


South Palm Beach condominium lakeside

South Palm Beach Condominiums – Lakeside View


Who is a Bona Fide Purchaser?

Under Florida law, a “bona fide purchaser” is a buyer of Florida real estate that can show:

  1. He acquired the legal title to the property in question;
  2. He paid for this property with something of value; and
  3. He had no knowledge of the interest against this property at the time when he paid for it and acquired title to it.

See, DGG Development Corp. v. Estate of Capponi, 983 So. 2d 1232 (Fla. Dist. Ct. App. 2008).

It sounds easy enough, but sometimes it’s not that easy to prove that you are, indeed, a bona fide purchaser of real estate here in Florida. You cannot be considered a “bona fide purchaser” for instance if you take possession, ownership, and control of the property with notice of someone else claiming to have an outstanding interest in it. It does not matter whether or not you think their claim is valid or above-board. The fact that you buy a piece of property with an awareness that someone is asserting a claim against that land is enough to disqualify you from “bona fide purchaser” status. . Kroitzsch v. Steele, 768 So.2d 514, 517 (Fla. 2d DCA 2000).

Why have this rule?

To protect those who are bona fide purchasers. The rule works to protect buyers of residential real estate who pay their money and take title without knowing that someone (or something, like a company or an estate) has a legal claim to assert against that property. It’s a legal construct that has worked to protect innocent, good faith purchasers of real estate in Florida for almost 100 years. See, Myers v. Van Buskirk, 96 Fla. 704, 119 So. 123 (1928).

What Is Adequate Notice to a Buyer?

Buyers may be considered to know about adverse interests and claims against the real estate they are buying in a variety of ways. It can get tricky for the purchasers.

One of the most obvious is possession of the real estate. If a buyer is contracting to buy a home in South Florida, for instance, he will be considered to have notice of anyone living in the home or condo and in possession of it at the time that the sales agreement is signed.

Another form of notice to the purchaser is actual or constructive notice, where a document has been filed in the real estate property records for the county in which the land is located. Here, a title search should reveal to the buyer that there is a lien on the property for an unpaid contractor’s invoice, or perhaps a property tax lien.

What About An Unrecorded Deed?

Under Florida law, an unrecorded deed is void insofar as creditors or purchasers who have no notice of the transaction recorded in that deed. However, the deed will be valid as between the parties (the grantor and grantee) in that unrecorded document. See, Townsend v. Morton, 36 So. 3d 865 (Fla. 5th DCA 2010).

What About Successors in Interest to the Buyer That Don’t Know About Any Adverse Claims?

Someone who buys a piece of real estate from the buyer is called a “successor in title.” Consider someone who buys a condo, fixes it up and then flips it. That new buyer is considered the flipper’s “successor in title.” These new buyers will take title to that condo subject to any interests in that property for which they have notice. If they have no notice, then they are considered a bona fide purchaser for value.

However, these buyers need to be careful. If their seller (the first buyer, the flipper in our scenario) had no legal title, then he had nothing to transfer to them legally. These new buyers legally buy NOTHING. The “bona fide purchaser” rule only applies to those buyers that do buy and hold some kind of legal title — one that has other interests or claims being asserted against it.

If the buyer has no legal title or legal ownership, then the “bona fide purchaser” rule will not apply to the successor in interest. You have to have a title interest to be protected by the bona fide purchaser rule. See, Am. Jur. 2d, Vendor and Purchaser § 370.

Who Has the Duty to Prove Application of the Bona Fide Purchaser Rule?

In Florida, it’s assumed that all real estate transactions are bona fide with the buyer being protected by the bona fide purchaser rule. However, if a challenge or claim is made, then the party that seeks the legal protection of that “bona fide purchaser” shield has the legal duty to find evidence to prove that he or she meets the definition and qualifications for its application.

After that, the party that is challenging the title or asserting the claim or interest has the responsibility of providing evidence that the buyer is still not protected because of things like (1) notice did exist for the buyer; (2) the purchaser is acting in bad faith; etc. See, Feinberg v. Stearns, 56 Fla. 279, 47 So. 797 (1908).

What About a Quitclaim Deed?

Quitclaim deeds in Florida allow someone to transfer to another only as much interest in the real estate as they may have. Under Florida Statute 695.01(2), a purchaser of real estate in Florida that holds a quitclaim deed can be considered a bona fide purchaser as long as they have had no notice of an adverse interest as that is defined in the Florida recording laws.

Specifically, the law states:

Grantees by quitclaim, heretofore or hereafter made, shall be deemed and held to be bona fide purchasers without notice within the meaning of the recording acts.

What If The Buyer Committed Fraud?

Sadly, there are times when Florida real estate transactions involve bad people doing bad things. There can be times when a buyer will buy Florida real estate under fraudulent circumstances. If a deed is obtained by fraud, then there’s often a successor in interest involved because the wrongdoer will be interested in moving that fraudulent holding fast.

Here, that successor in interest may well have paid good money and have had no idea that his seller — the initial buyer — was a bad actor. Under Florida law, even if this person was without any notice of any fraud and spent good money to buy the real estate, the bona fide purchaser rule will not protect him from the interests asserted by the initial seller who was defrauded. This is true even if his deed is recorded and the seller has legal notice of it. See, Houston v. Forman, 92 Fla. 1, 109 So. 297 (1926).

That successor in interest may hold only an equitable interest against the land for the monies he has spent.

For instance, in the case of Houston v. Mentelos, 318 So.2d 427 (Fla.3d DCA 1975), Henry Gordon was held to have an equitable interest in the Florida real estate he thought he had bought, but not legal title. This money was the sum total of what Mr. Gordon had paid to clear liens and encumbrances on the real estate. Mr. Gordon had an interest against the land to assert, but he would not be protected by the bona fide purchaser rule.

Why? Mr. Gordon, as successor in interest, did not hold legal title to the land. This was because a man named Thomas Mentelos had obtained the seller’s signature on a Warranty Deed through fraud. Mr. Mentelos had told the seller that the document he was signing was to get an existing oral lease agreement down on paper. However, the document wasn’t a lease; it was a deed transferring title.

The seller proved he had not committed negligence in signing the paperwork, and the court held the deed to be void because it had been obtained by fraud. When Mentelos conveyed the tract to Mr. Gordon, he could not pass legal title to him because he had no valid title to convey.

The Power of the Bona Fide Purchaser Rule

In Florida, buyers of real estate are presumed to be “bona fide purchasers” with all the legal protections that provides. Any buyer that holds legal title to the property or is entitled to call for legal title to the real estate is covered by the Florida “bona fide purchaser rule.”

However, buyers need to be careful in their real estate transactions here in Florida. If they are victims of fraud, then they may not be buying the property at all (like Mr. Gordon in the above case discovered). Also, if the deal has not been finalized, then the buyer holds only an executory contract for the purchase of land — and cannot be considered a “bona fide purchaser” if the deal goes sour.

Florida Real Estate Lawyer Can Help Buyers Make Sure They Are Protected as Bona Fide Purchasers

Having an experienced Florida residential real estate lawyer overseeing a real estate transaction from the initial agreement to purchase through closing can be invaluable to a buyer (as well as a seller). Red flags that may not be apparent to the parties, or their real estate agents, may be obvious to someone who has been dealing with residential real estate crisis and conflicts for years.

A good piece of advice if you are involved in an issue related to the bona fide purchaser rule, 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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4 Title Issues That Can Derail A Florida Closing

Posted By on July 12, 2016

In Florida, often times right before a residential real estate transaction is set to close the deal is derailed because of conflicting legal interests between the parties to the transaction (the seller and the buyer) and a third party with an interest in the property.

Who are these third parties? Two common examples: contractors who have worked on the property and have filed a lien in the public records to make sure they get paid and someone who claims to be a “bona fide purchaser” of the property (more on that later).

Key here: the closing can not occur (because the seller can’t convey marketable title) until these title issues are resolved and that may mean someone is going to have to pay some money to get these title issues resolved.  Below are a few examples of common and some not so common tile issues that can arise during a title search and prior to closing.


Government Center and Courthouse

Miami’s Government Center: Dade County Courthouse in the background; Historical Museum of Southern Florida on the right.


1. Legal Notice: What’s in the Records?

Florida has a recording law which acts to protect people from secret conveyances, silent deals and other schemes that can affect ownership to real estate. It is found in Florida Statute Chapter 695. One of the big reasons for having official real estate records in the county where the property is located — so anyone interested in a specific piece of real estate can learn if there are any “clouds” on that title as well as creating a cloud themselves, if need be.

What happens here? Let’s say there is a pending sale. This fact may or may not be known to the third party that is claiming an interest in the property. For instance, the contractor that is in the process of replacing the garage doors.

If the deal closes, then who pays that garage door contractor — the seller who hired him or the buyer who is enjoying his product?

Under Florida’s recording law, the title to the home is not marketable if the garage door contractor followed the law and filed a notice in the public records that it has performed services to improve the property. If the contractor’s notice isn’t addressed (meaning, for example, a release of lien is obtained and recorded), then the notice acts as actual or constructive notice to these third parties — like a buyer — that there is a potential cloud on the title.  That potential cloud on title will likely prevent the transaction from closing until it is removed because the contractor has a superior interest in the property to the interest of any buyer (and the bank lending money to the buyer) .

2. Common Source of Title: We Both Have a Deed!

In Florida, we also have something called the “common source of title” legal doctrine. Here, there’s a conflict when two parties both claim title to the real estate from a single source. Under this law, the party that can provide evidence of better title from that single source will be given legal title to the property.

For instance, in the case of Nissim Hadjes, Inc. v. Di Costanzo, 197 So. 2d 602 (Fla. 3d DCA 1967), both Nissim Hadjes, Inc and Nicholas Di Costanzo claimed they held legal title to a piece of Florida real estate, each claiming they got title from a common source — the Richards Land Development Corporation.

Each side had a deed. Mr. DiCostanzo claim was based upon a warranty deed he had from the Richards Land Development Corporation “to Nicholas Di Costanzo, as trustee,” which was recorded in the real property records in May 1958, as well as a quit claim deed from Nicholas Di Costanzo, as trustee, to Nicholas D. Costanzo (plaintiff), which was also recorded in the land records (several years later).

Nissim Hadjes, Inc had a deed, too. It argued it had legal title because of a warranty deed from Richards Land Development Corporation to Nissim Hadjes, Inc which was recorded in September 1958.

The court held that since both parties were claiming title from a common source, they had the burden of proving they had a better title from that source to prevail. To do so, they needed to trace their actual legal title to the common source — and show more than they each had a claim under a common source.

Based upon the testimony and documents provided, the court found that the trust deed from Richards Land Development Corporation to Mr. DiCostanzo, as a Trustee, was, in fact, a mortgage and not a conveyance of clear title. Accordingly, Nissim Hadjes, Inc held better title evidence and was held to hold title to the land.

3. What the Buyer Knew and When He Knew It

When someone decides to buy real estate in Florida, and takes title to that real estate knowing that there are prior claims on that property, then that buyer is bound by those claims. See, Barnhill v. Lowe, 940 So. 2d 462 (Fla. 1st DCA 2006) (actual or constructive knowledge).

For instance, there may be a covenant within the deed itself that stipulates that the grantee (buyer) assumes a specific debt against the land as part of the sale and purchase price. That covenant will legally make the buyer liable for that debt. The buyer does not have to sign any document that he or she agrees to pay the debt; by paying the purchase price and taking the deed, the buyer has accepted responsibility for the indebtedness.

Why? The buyer is considered to have notice of the debt and to have agreed to pay it off because of the language in the deed document. See, Shirey v. Dowling, 155 Fla. 433, 20 So. 2d 500 (1945).

4. Innocent Purchaser for Value

In Florida, a buyer of a home or condo takes that real estate title free of any outstanding equitable interests of third parties if he is considered an “innocent purchaser for value.” What is an innocent purchaser for value? It’s a buyer who has no idea that these outstanding equitable interests exist. He has no notice of them. Herring v. Fitts, 43 Fla. 54, 30 So. 804 (1901).

When a buyer has notice of someone else’s interest in the real property, then the buyer legally takes ownership and title to that land subject to those interests. If the buyer has notice, then he has a duty to deal with those interests.

However, a buyer who is considered a “bona fide purchaser” takes the property free from them. Smith v. Massachusetts Mut. Life Ins. Co., 116 Fla. 390, 156 So. 498, 95 A.L.R. 508 (1934); Broche v. Cohn, 987 So. 2d 124 (Fla. 4th DCA 2008), cause dismissed, 994 So. 2d 304 (Fla. 2008).

In Broche v. Cohn, Diosdado Broche and John Cohn entered into a verbal contract to form a company called Island Motors, Inc which would sell used cars. Island Motors was in the real estate records as title owner; Broche was the one who paid the money for the land. All the corporate documents had John Cohn listed (as CEO, president, etc.) because Mr. Broche didn’t want to have his name listed anywhere.

Things went badly for the business partners. Within a month of the company being formed, Mr. Broche issued 51 shares to himself and 49 shares to his wife in Island Motors stock; that next February, he transferred the land from Island Motors to himself and his wife in a quitclaim deed. He recorded this deed.

Mr. Cohn quickly went down to the courthouse and recorded his own deed — this one transferred the land from Island Motors to John Cohn. He issued all the shares in the company to himself, too, and then filed a Notice of Lis Pendens in the land records — and sued Broche.

The lawsuit was ongoing when Mr. Cohn, signing on behalf of Island Motors, signed a sales agreement to sell the real estate to a buyer named Warren Mosler.

When Mosler’s title search was run, it showed that Island Motors held legal title to the land, and that John Cohn was the president and sole officer of Island Motors. The title search also showed Mr. Broche’s recorded quitclaim deed along with Cohn’s Notice of Lis Pendens.

Cohn explained away Broche as a “disgruntled employee” whose claim for the land was phoney (fraudulent). The title company requested that Cohn dismiss his lis pendens and that Cohn agree to indemnify the title company for any claim brought by Broche. The sale to Mosler closed; he recorded a warranty deed and Cohn was paid his purchase price.

Did Mosler have notice of Broche’s claim?

The court held that Mosler purchased the land with knowledge that Broche had a claim, and therefore he had legal notice of Mr. Broche. Under Florida law, this meant that Mosler took the land subject to an outstanding equitable interest – if that is what Mr. Broche held. The court found that because the land was held in the name of Island Motors, it was the sole owner of the land. Broche had no equitable interest in the property.

Mosler was held to be legally entitled to the property as an innocent purchaser for value. Broche, Cohn, and the company Island Motors could work out their claims as against each other in other ways (including Cohn putting the purchase money he got from Mosler into the company’s accounts). Mosler was a “Bona Fide Purchaser” under Florida law and as such, took legal title to the land free from these claims.  (More on Bona Fide Purchasers in our next post.)

Closing Questions? Concerned About a Possible Title Issue?

If you are finding your closing is becoming complicated because of a possible conflict involving a third party’s interest in the real estate — or if you are a third party who is concerned that a sale may harm your ability to be paid on an outstanding debt, then it’s important that you be proactive and learn your rights under Florida law.

Calling an experienced Florida real estate lawyer for advice can be vital to protecting your interests. It’s possible that your lawyer may be able to find a way of addressing the title issue without the need for filing a title insurance claim or a complicated lawsuit, which will likely kill the transaction or, at the very least, cost a lot of time and money to pursue.

A good piece of advice if you are involved in an issue related to a cloud on title to real estate, 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.

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

Do Florida real estate contracts require sellers to repair termite damage?

Posted By on July 5, 2016

According to the case law as of the date of this article, a provision in a real estate contract that requires a seller to deliver at closing a report from a licensed pest control company showing the property free of termites does not require a seller to repair termite damage.  In order for the seller to be obligated to make any such repairs, the parties would have to agree, in writing, for the seller to do so.

See: Langel v. Hastings, 537 So. 2d 1113 (Fla. 4th DCA 1989)



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.