Tenant Defenses to Residential Evictions in Florida

Posted By on February 7, 2017

In Florida, the portion of the landlord-tenant law relating to residential dwelling units (including, homes, apartments, mobile homes and condos) was written, in part, to protect tenants during the the eviction process. Under our statutory law, the eviction process is referred to as an action by the landlord for possession of the dwelling unit.

Most residential evictions in Florida occur over the issues of non-payment of rent or because the landlord alleges the tenant has violated some term of the lease (often times, that violation (breach) relates to pets, guests and/or noise issues).

Fortunately, a residential tenant in Florida has certain statutory defenses he or she can raise against a landlord that seeks to evict the tenant from their dwelling (under the law, a dwelling is defined, in part, as “a structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.”)

These defenses are available to a tenant no matter if the tenant is leasing for a long period of time (like an apartment lease covering a year or more) or if the tenant is renting from week to week or from month to month (like a summer vacation home or condo).
 

FEMA - 13988 - Photograph by Andrea Booher taken on 07-13-2005 in Florida

Eviction Notices Happen In Swanky Condos, Too.


 

Residential Landlord-Tenant Eviction Law in Florida

In Florida, we have a specific law that controls residential tenancies known as known as the “Florida Residential Landlord and Tenant Act.”

Our residential landlord-tenant law is found in this Florida Statute as well as in court case precedent, where courts have rendered legal opinions in past eviction cases.  The statutory laws that control residential tenant evictions in Florida are found in a sub-section of Chapter 83 of the Florida Civil Practice and Procedures Code.  See, Florida Statutes 83.40 – 83.683.

How Does The Eviction Process Begin in Florida?

So, how does the legal process between landlord and tenant begin? Here’s what usually happens:

A landlord normally begins the eviction process when the tenant stops paying the rent or continually fails to materially comply with the lease or the law relating to maintaining the dwelling.  Sure, sometimes the tenant doesn’t have the money to pay the rent on time that month.  Times can get tough.

However, there are times when a tenant has the money to pay the rent and decides not to do so.  Why?  The tenant may feel forced to stop sending the rent check because the landlord isn’t listening to their complaints or fulfilling his or her duty under the law to maintain the premises.

Notice of Termination of The Rental Agreement to the Tenant

Under the law, before a residential tenancy is terminated and the landlord is entitled to possession of the property, the landlord must deliver (defined under the law) a written notice to the tenant.  The type of notice to be used, and, if applicable, the amount of time the tenant has to correct the non-compliance, will depend on the reasons for termination the rental agreement (i.e. non payment of rent or a material failure to comply with Florida Statute 83.52 or material provisions of the rental agreement – See Florida Statute 83.56).

The notice must include specific language about the basis for terminating the rental agreement and the steps, if applicable, the tenant can take to avoid termination or being required to vacate and/or deliver possession of the premises. No matter which type of notice is delivered, it must substantially follow the form set forth in the statute or it will be considered defective.

After notice is delivered and the tenant fails to comply, then an eviction lawsuit is filed.

Defenses to Being Evicted By The Landlord

When the eviction process begins a tenant can assert a variety of defenses to the eviction lawsuit.  Here are some of the most common:

1.  Improper Notice by the Landlord

If the landlord does not provide proper notice of the eviction, then, simply stated, he or she has not followed the law.  In Florida, a tenant cannot be evicted if the landlord does not take the following steps:

  • provide written notice; and
  • include all of the statutorily required information in that notice.

Grace Period

For instance, if the tenant fails to pay rent when due and the default continues for 3 days after notice is delivered to the tenant, then the landlord may terminate the rental agreement and evict the tenant.  This 3 day period is called a “condition precedent” (meaning, this step must occur before the landlord can exercise his or her right to terminate the rental agreement).

If the landlord did not give the full 3 days before terminating the agreement, or filing a lawsuit,  then the condition has not been met.

The tenant can move to dismiss the eviction action because of a defective notice.  See, Clark v. Hiett, 495 So.2d 773 (Fla 2d DCA 1986).

What Days Count in the Notice? You May Be Surprised

A basic step here is that the three-day time period has to be counted correctly.  It cannot include legal holidays.

If the landlord’s count includes a Florida legal holiday, then the notice is improper giving the tenant a defense to the eviction lawsuit.

What are the legal holidays for the State of Florida?  They are listed in Florida Statute 683.01 and include the following:

  • Sunday, the first day of each week.
  • New Year’s Day, January 1.
  • Birthday of Martin Luther King, Jr., January 15.
  • Birthday of Robert E. Lee, January 19.
  • Lincoln’s Birthday, February 12.
  • Susan B. Anthony’s Birthday, February 15.
  • Washington’s Birthday, the third Monday in February.
  • Good Friday.
  • Pascua Florida Day, April 2.
  • Confederate Memorial Day, April 26.
  • Memorial Day, the last Monday in May.
  • Birthday of Jefferson Davis, June 3.
  • Flag Day, June 14.
  • Independence Day, July 4.
  • Labor Day, the first Monday in September.
  • Columbus Day and Farmers’ Day, the second Monday in October.
  • Veterans’ Day, November 11.
  • General Election Day.
  • Thanksgiving Day, the fourth Thursday in November.
  • Christmas Day, December 25.
  • Shrove Tuesday, sometimes also known as “Mardi Gras,” in counties where carnival associations are organized for the purpose of celebrating the same.
  • Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.

Other Failures to Give Proper Notice of Eviction

The landlord’s notice must be correct under the law (as to substance and form).  Other examples of improper notice which can provide a tenant with a defense to eviction are:

  1. The lease is signed by both husband and wife, but the notice only lists one of them;
  2. The notice has the wrong amount listed for the rent; and
  3. The notice includes a late fee as different amount due than rent (only rent can be the basis of an eviction notice).

However, the landlord “must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.

2.  “I Don’t Have the Money to Pay Right Now”

A lot of times, tenants will say they will have the money “soon” to pay the rent.  They may even have the evidence to support their claim.  Maybe their employer is late in paying them all of the commissions that are due to them.  Maybe their parents haven’t sent them the check yet or their student loan hasn’t been release to them.

These excuses may be valid, but insufficient funds on the date that the rent is due may not stop an eviction.  However, if the tenant pays rent in full during the three-day time period, then the landlord cannot proceed with the eviction.  If the landlord does proceed with the eviction, then the tenant can use “payment” as a defense.

3. Landlord Has Not Kept Up the Property

Under Florida 83.51, residential landlords have a statutory duty or obligation to repair and maintain their rental property.

Housing Regulations

Here, the landlord must comply with applicable housing regulations.  These are laws, rules, and regulations that may have been passed by federal, state, county, or city governments regarding the condition and upkeep of the property.

If the landlord does not obey, then the tenant is free to stop paying rent.  It is considered a “complete defense” to any eviction action.

Florida 83.60(1)(b) provides the legal defense.  In the Florida Code, this is called the “defense of a material noncompliance with Florida Statute 83.51.”

Seven Day Time Ticker

There is a time requirement:  7 days must have passed between (1) the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof, and (2) the withholding of the rent payment.

Notice by the Tenant

The tenant’ notice can be given to (1) the landlord, (2) the landlord’s designated representative under Florida Statute 83.50, (3) a resident manager, or (4) the person or entity who collects the rent on behalf of the landlord.

Reduced Rent Can Be Awarded

The judge or jury may decide that not only was the landlord guilty of material noncompliance with the law requiring the landlord to maintain the property, but that the tenant can have their rent reduced “ …to reflect the diminution in value of the dwelling unit during the period of noncompliance.”

Tenant Must Comply With Rental Deposit Law

The tenant cannot simply hold the money that would otherwise go to the landlord as a rent payment.  The rent must be paid.  However, it just doesn’t go to the landlord. Instead, the tenant must pay the rent into the court registry.  See, K.D. Lewis Enterprises Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).

Warning:  you must follow this law to the letter, and deposit your rent in the court depository in order for this to be a viable tenant defense to eviction.

Related: How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

4. Waiver

In Florida, under Florida Statute 83.56(5), a tenant may argue the defense of “waiver” in an eviction lawsuit.  Here, the tenant must provide evidence that the landlord took a rent payment after the lawsuit was filed.

If the landlord accepts rent after starting an eviction proceeding, then he or she has waived his right to evict the tenant.

Note:  this defense may not work if the tenant’s actions that cause the eviction to begin are repeated again.  Continued or repeated violations by the tenant can work to block a waiver defense.

5. Retaliatory Conduct, Discrimination and Self-Help

Under Florida’s statutory law, there are several other defenses that a tenant may use to defend against a residential eviction.  These are referred to in the statutes as unlawful or prohibited practices (See Florida Statutes 83.64 and 83.67).

However, there are caveats to using some of these defenses, like “in order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith.”

For details of what is considered an unlawful or prohibited practices (like changing the locks or interrupting your electricity), and to learn the consequences for doing so, read our prior post “Illegal Residential Evictions in Florida.”

What Should You Do?

A good piece of advice if your landlord is attempting to terminate your lease agreement and evict you from your home, is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different defenses that may be available to you, including how landlords may be ordered to pay your legal fees if you win your case. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Picture of Larry Tolchinsky

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

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

Illegal Evictions in Florida

Posted By on January 24, 2017

Every day in Florida, there is a residential tenant dealing with a landlord who has committed an illegal act all in the name of the almighty dollar. Because landlords are still finding ways to harm tenants, the Florida legislature wrote and continues to write law to protect tenants from these illegal acts.

In fact, the “Florida Residential Landlord and Tenant Act” is so detailed as to what a landlord must do and shall not do that some have argued the law is one-sided in favor of the residential tenant.

One positive aspect of the act is that the most important protections relate to security deposits and illegal evictions and these laws are mandatory in nature; meaning, the landlord has to follow the law, otherwise he or she can be held to financially account to the tenant, including paying their attorney fees.

 

Broward County FL Sheriff 2010 Charger Hemi

In a Proper Florida Eviction, the County Sheriff Oversees the Landlord’s Actions: There’s No “Self-Help”


 

3 Florida Laws That Protect Residential Renter’s From Illegal Evictions

The three specific Florida Statutes that help to protect tenants from the bad acts of landlords are:

Florida Statute 83.60 – relating to defenses to a lawsuit for rent or possession of the tenant’s home or apartment;

Florida Statute 83.64 – relating to retaliatory conduct by a landlord; and

Florida Statute 83.67 – relating to prohibited practices by a landlord (see below).

All residential renters should be aware of these laws and the protections they give to tenants. A violation of any of these laws can subject a landlord to some type of financial hardship, including having to pay compensation to a tenant.

What is an Illegal Eviction or a Self-Help Eviction?

Simply stated, when a landlord engages in the behavior listed in Florida Statute 83.67, he or she is violating the law.

Violating certain provisions of this law (like locking out a tenant, removing their belongings or cutting off their utilities) is sometimes referred to as a “self-help” eviction. In those instances the landlord can be sued for damages.

What if the Tenant Hasn’t Paid Rent?

Landlords cannot simply do anything they want to remove a tenant from their home. Landlords must follow the very specific eviction procedures set forth in the law.

This is true even if the tenant is behind on paying his or her rent.

In Florida, tenants have a right to remain in their home until the landlord complies with the proper eviction process, including providing the tenant with a correct 3-day notice to pay rent or vacate the premises (there is a whole body of law related to defective 3-day notices).

Examples of Illegal Eviction in Florida

The law defines what a landlord can and cannot do in order to evict and move a tenant out of the rental unit before the end of the lease.

The law gives specific examples of acts by a landlord that are illegal and wrongful in Florida.  They are:

  • Terminating the tenant’s electricity;
  • Interrupting the tenant’s electricity;
  • Terminating the tenant’s gas;
  • Interrupting the tenant’s gas;
  • Terminating or interrupting any other utility service, such as garbage collection, elevator service, water, etc.;
  • Changing the locks on the rental unit;
  • Using a bootlock on the dwelling;
  • Preventing reasonable access to the rental unit in any way; and
  • Removing outside doors, locks, windows, roof, or walls except as needed for repair, maintenance, or replacement while the tenant still has possession of the rental unit.

Of course, having a law on the books is one thing.  It doesn’t stop bad landlords from trying to take advantage of renters and evicting them anyway.

Landlords ignore the law all of the time.  They know that most tenants won’t do anything about it. The unfortunate thing is that most tenants are unaware that many lawyers will represent a tenant who has been illegally evicted without requiring the tenant to pay any money to the attorney unless the attorney wins their case.

4 Things a Tenant Can Do If a Landlord Attempts an Illegal Eviction?

These situations can be emotional and even dangerous for tenants.  If a renter is able to communicate with their landlord without fear of harm or retaliation, then explaining that the Florida eviction laws have been violated can be helpful.  (A written notice is better than a phone call, because having written documentation may make it easier to defend against an eviction later on or to prove a claim for damages.)

1.  Give the Landlord the Law

Many times, landlords become reasonable and prudent people when they are informed of the law (especially when they realize the tenant is informed and the tenant has shared with the landlord that he or she can be liable to the tenant for damages).  Even though the landlord may still move forward to evict a renter, they will likely do so in accordance with the law.

2.  Call the Police

If the landlord does not remedy the violation, or if the renter is afraid to ask that the landlord obey the eviction laws, then the renter can always call the police.

Landlords are breaking the law when they turn off the utilities or change the locks.  The police can order them to comply with the law.  They can also help the tenant re-enter the home without being accused of “breaking and entering” the property.

The police officer will also file a police report of what has happened.  (This is more documentation for the tenant to use later, if needed.)

3.  Call the Utility Company

You have a right to basic utilities like electricity and gas.  If the landlord has turned them off, then call the utility company.  Ask that services be restored.  (You may have to pay a deposit.)

4.  Sue the Landlord for Damages

As stated above, if a landlord violates Florida Statute 83.67, he or she can be ordered to pay money to a tenant for a landlord’s bad behavior.  How much?

A violation of this statute can mean that a landlord can be ordered to pay his or her renter:

(1) Either (a) the tenant’s actual and consequential damages or (b) 3 months’ rent, whichever amount is greater;

(2) Costs of filing the lawsuit; and

(3) The attorneys’ fees of the tenant’s lawyer.

If the landlord repeatedly violates this law, then he or she can be required to pay the tenant each time the tenant is harmed.  (Note: in order for a tenant to be paid for each time this occurs, the repeated violations cannot have taken place at the same time as the initial violation.)

What is the Proper Florida Eviction Process?

What are the proper procedures a landlord must follow under Florida law to evict a tenant?  The law is clear.  These are the steps that a landlord should take when evicting a tenant:

  1. First, the landlord must give written notice to the tenant. This writing must be a 3 day notice to vacate or a notice of lease termination, and it should have a specific date or deadline for the tenant to vacate and all of the dates must be strictly adhered to;
  2. Second, if the tenant doesn’t move out by the deadline, then the landlord must file a lawsuit to evict the tenant (the landlord can also sue for damages – however, that can slow down the process unless the landlord follows certain rules related to civil procedure);
  3. Third, the landlord has to prove his or her right to evict the tenant to a judge and get an order signed by the judge allowing the eviction;
  4. Fourth, the landlord must obtain a writ of possession and then pay the County Sheriff to go to the home and post the writ on the door giving the tenant 24 hours to vacate the premises (some counties have special rules as to when the 24 hours begins). Once the 24 hours passes, and the tenant hasn’t moved out, the sheriff will then evict the tenant. At this time, any personal property left in the home will be removed by the sheriff, placed on the front lawn or in the street,  and the locks can then be legally changed.

What Can a Florida Tenant’s Rights Lawyer Do For You?

If you are renting your home here in Florida and are having trouble with your landlord, then a tenant’s rights lawyer can be very helpful to you even if it’s just explaining your rights.

For instance, it does not matter who pays for the electricity, gas, or water.  The landlord cannot interrupt these services to a tenant’s home even if the landlord pays for these services under the lease.  See Florida Statute 83.67.

Also, it is possible to go to court and get help fast.  A court order can be obtained from a judge to stop the landlord from committing any further bad acts.

How? Tenants can get priority help from judges because an illegal eviction is defined under the law as “constituting irreparable harm” which means a tenant can get “injunctive relief.”  (injunctive relief is where a judge specifically orders a landlord to stop acting in a harmful way) See Florida Statute 83.67.

A good piece of advice if you are being illegally evicted, is to speak with an experienced Florida real estate lawyer to learn about your rights, including how landlords can be ordered to pay a tenant’s legal fees if they win their case. 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.

Seller and Private Financing in Residential Real Estate Transactions under Dodd-Frank Act 

Posted By on January 10, 2017

Florida residential real estate transactions are governed by a variety of laws, rules, and regulations.  Unfortunately,  some real estate agents minimize or ignore these requirements in the name of getting the deal closed. They say they want to keep things simple for buyers and sellers.  After all, the standardized forms they use cover all of these requirements, right?

Wrong.  The reality is that these laws are complicated and they exist at the local, state, and federal levels.  They apply to the most basic real estate transactions (i.e. transactions where no federally insured mortgage is involved).

Anyone buying or selling a home or condo in Florida needs to understand how Dodd-Frank can impact their residential real estate transaction even when there’ no Fannie Mae loan or other government or quasi governmental loan involved in the transaction.

What is the Dodd-Frank Act?

The full name of the Dodd-Frank Act is the “Dodd-Frank Wall Street Reform and Consumer Protection Act.”  It was passed by Congress and signed into law by President Obama in 2008.  The Act is a massive piece of legislation (it’s over 2300 pages long) and it was designed to improve transparency in the financial system and protect consumers.

For residential buyers and sellers in Florida, the important thing to know about the Dodd-Frank Act is how it impacts residential real estate transactions relating t0 seller financing and private financing of these deals.

 

Moneysack
 

Why Care about the Dodd-Frank Act if you are selling a Florida Home?

The Dodd-Frank Act imposes all sorts of new financial regulations on the banking industry.  Specifically, it imposes rules on banks and other mortgage lenders related to how mortgage financing occurs in a real estate transaction.

But it does more than just deal with banks.  The Dodd-Frank Act imposes restrictions on seller’s who finance the sale of their residential property.

These are loans where the seller loans the buyer the money to buy the seller’s home or condominium.  In “seller financing”  deals, the closing occurs without any bank or other kind of institutional lender being involved.

Sometimes, it’s a good deal for sellers and buyers.  The seller can sell their property fast.  The buyer can get immediate access to financing without all the complications of a formal mortgage application process with the local bank.

However, after Dodd-Frank was passed, things got a lot more complicated for a seller financing the sale of his or her home.  Now, a home owner who negotiates seller financing with a buyer is considered a “mortgage loan originator” and is subject to the terms of the Act.

Dodd-Frank Act and Seller Financing of Residential Home Loans

The Dodd-Frank Act sets up rules for seller financing of residential property.  It also sets up rules for private loans made on residential property not owned by the person doing the financing.

Seller Financing

The Act creates new laws for anyone involved in making consumer home loans.  It controls and mandates things like licensing and the regulation of mortgage brokers and bank loan officers.

1.  The Loan Originator Rule

Under the Dodd-Frank Act, the Loan Originator Rule is the centerpiece of the legislation relating to residential real estate transactions.  The rule generally regulates how compensation is paid to a loan originator and sets out the qualifications of, and the registration or licensing of loan originators.  Basically, the rule states when a seller is financing the sale of his or her home with a purchase money mortgage, then, depending on the terms of the loan, the seller may be subject to the act.

Fortunately, there are exclusions under the law as to who is considered a loan originator.

2.  Exclusions from Loan Originator Rule

If you are a seller wanting to finance the sale of your residence, there are two exclusions from having to follow the Loan Originator Rule.  They are:

a. The One Property Exclusion

The Loan Originator Rule will not apply to a residential sale where a “natural person, estate or trust” provides seller financing for only one property in any 12-month period.

b. The Three Property Exclusion

The second exclusion to the Loan Originator Rule is called the “three property exclusion.”  Here, the Rule does not apply to a seller who is financing three or fewer properties in any 12-month period if certain financing terms are met (see below) and the seller is not a contractor or builder.

c.  Seller Must Be Owner and Not a Contractor or Builder

These exclusions to the Loan Originator Rule under the Act apply only if:

  1. The Seller is the owner of the property that is securing the loan.
  2. The Seller is not the contractor of the residence in the ordinary course of business.
  3. The Seller is not the builder of the property in the ordinary course of business.

Simply put, if you are a home builder or a contractor on a residential project, then you cannot be excluded by the rule (meaning, you will have to follow the financial requirements of residential home loans under the act).

And, the same is true if you don’t own the home.  If you do not own the residential property being sold, then none of the exclusions from the Loan Originator Rule apply to you.

d.  Financing Terms

Under each exclusion (one property; three property), there are special financing terms.  For instance, are you offering adjustable rate financing?  Then the Dodd-Frank Act and its Loan Originator Rule requires:

  • An annual rate increase of 2 percentage points or less be used;
  • There must be a lifetime limitation of an increase of 6 percentage points or less;
  • There cannot be any negative amortization;
  • Balloon mortgages are acceptable;
  • Fixed rate or an adjustable rate must reset after 5 years or more, subject to reasonable annual and lifetime limits;
  • The home loan must be fully amortizing;
  • There must be a good faith determination that the consumer has a reasonable ability to repay the home loan. (Want to know how that’s decided?  These criteria can be found online in Regulation Z §1026.43(c).)

Dodd-Frank Does Not Cover All Residential Sellers

The Loan Originator Rule does not apply to every residential property deal.  It does not apply to loans involving:

  1. Business credit;
  2. Commercial credit;
  3. Agricultural credit;
  4. Organizational credit, or
  5. Credit extended to other than a natural person.

Are You Being Asked To Sign A Contract Form in Violation of the Dodd-Frank Act?

Most residential real estate deals happen in Florida using standardized forms.  That’s fine; it saves time and money for everyone.

Thing is, it’s important that those who are presenting those forms for use as a binding contract know whether or not those forms are up-to-date and accurate.  Unfortunately, a lot of real estate agents, and lawyers, use outdated forms.

Rider C of the Residential Contract for Sale and Purchase Form

This means in a residential real estate transaction in Florida, the form for “Seller Financing” (as provided by the Florida Realtors/Florida Bar Residential Contract for Sale and Purchase) needs to be checked for compliance.

Every day, there are transactions occurring where the contract does not comply with Dodd Frank because the form is outdated.  Rider “C” of this contract, which has the heading “Seller Financing” should be checked to see if it meets the federal financial regulation requirements of Act.  This evaluation and alteration should not be done by a Florida real estate agent.

Why?  Real estate agents cannot practice law and some agents are just simply unaware of the requirements of the Act.

Read: When Is a Florida Real Estate Agent or Broker Guilty of the Unauthorized Practice of Law?

Help With Seller Residential Financing

If you are involved in a residential real estate transaction here in Florida and your buyer is having difficulty obtaining financing, then you may want to consider offering seller financing (this type of financing will become more popular as interest rates rise).  For some sellers and buyers, handling the financing between them and avoiding the bank down the street is a great idea.  It works for lots of people.

However, it’s very important for sellers and buyers to make sure that they are conforming to all of the laws that apply to their residential real estate transaction.  This includes all the financial requirements under the Dodd-Frank Act and its Loan Originator Rule.

If a Seller does not comply with the law and there is a default of the mortgage in the future, then will the Seller be legally protected by having the right to foreclose?  Maybe not.   If the buyer stops making payments, then the seller needs to know that he or she has the right to enforce the terms of the mortgage.  If the buyer pays off the loan, then he or she needs to know that the seller can be forced to turn over clear title to the property (including the requirement to issue a satisfaction of mortgage).

Sellers need to make sure that their residential real estate transaction complies with every law out there before they decide to hold a mortgage. The laws, especially new ones like Dodd-Frank, are constantly being amended and/or replaced.

If you are selling or buying real estate in Florida and are considering seller financing in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including the requirements of Dodd-Frank (pre-contract and post-contract). 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.

Satisfaction of Mortgages in Florida

Posted By on December 27, 2016

Once you send in your final mortgage payment (or where you payoff your loan due to a refinance or the sale of your home), your lender has an obligation to act.  It’s the law.

The bank is supposed to prepare and record in the public records where the property is located a “satisfaction of mortgage.” 

Why?  So the public records can reflect the title to your home or condo is free from the bank’s mortgage lien.

Satisfaction of a Residential Mortgage in Florida

When a borrower pays his or her mortgage or home loan in full, it means he or she has satisfied the debt.

However, it doesn’t mean the property is free and clear – yet.  That lien from the mortgage is still reflected in the public records.

It’s a cloud on title.  The mortgage was originally recorded to protect the bank’s interests while the loan was being paid down.  It created a lien against the property for the entire world to see when searching the public records.

After receiving payment in full, the lender is required to prepare a document showing the lien has been removed from the property.  That document has to be recorded in the public records.  Over the years there has been so many issues with satisfactions of mortgages that our legislature passed a law outlining the steps a bank, or other lender, needs to take after the mortgage debt has been satisfied.
 

South Palm Beach-FL view north 2008

Condos in South Palm Beach, Florida


 

Florida Statute 701.04

Florida Statute 701.04, is the law the sets forth the the steps that a lender must take to remove and cancel their lien on your home or condo. The law is specific as to those steps (see below).  The lender doesn’t get to choose what to do.

First of all, the bank has to remove the lien by preparing a written document.  Especially important, the lender has to record the satisfaction of mortgage in the proper county public records.  This is called filing notice.   Then the notice has to be shared with the borrower.

And, all of this has to be done within a certain number of days.  The bank has a deadline.

Florida home owners should be aware of the legal requirements for cancelling a home loan or satisfying their mortgage.  Unless this is done properly, the lien will remain and the owner will not have clear title to his or her home – which can be problem later on when they try to sell the property or when they die and the property is transferred to his or her heirs.

Step 1.  Written Acknowledgment

The mortgagee or assignee who receives that final home loan payment must execute a written document that acknowledges the mortgage has been paid in full, or “satisfied.”

This written acknowledgment must be proven or acknowledged (i.e., signed before a notary public).

It must then be filed with the clerk responsible for the real estate records of the county where the property is located.

Step 2.  Notice Sent to Home Owner

After the bank files the documentation with the real estate clerk’s office, then the bank must let the borrower know that this has been done.  The lender must send notice to the borrower that the documentation has been filed with the clerk.

This is notice that the lien has been removed.  It confirms to the borrower that he or she now has full legal title to the property without the lender having any lien against it.

Step 3.  Meet Deadline

Under Florida law, the bank has to act within a reasonable time, which has been defined as sixty days (60 days) after the date of the full payoff of the mortgage or home loan.

Within this 2 month time period, the bank has to (1) file the proper notice in the county real estate records as well as (2) give proper notice to the home owner of this recorded satisfaction of the mortgage.

Are Attorney’s Fees Awarded to the Homeowner if a Lawsuit is Filed?

What happens if the home owner has to sue the bank because it failed to prepare and record a satisfaction of mortgage?  The bank will have to pay the home owner’s legal fees to bring the lawsuit.  That’s also stated in Florida Statute 701.04.

Exceptions to Discharge of the Mortgage Debt and Lien

Of course, there are times when bad things happen.  Sometimes, a Satisfaction of Mortgage in the public records does not remove the bank’s lien against the chain of title.

1.  Mistakes, Accidents, or Fraud

Mistakes can be made, for instance.  If a borrower gets a notice in the mail from the bank that there has been a Satisfaction of Mortgage filed in the real property records, but there is still a balance due on the home loan, then it’s obvious that an error has been made.

Under longstanding Florida law, the borrower doesn’t get a windfall here.  The bank will be able to fix that mistake in the public records.

It’s true that cancellation and discharge of a Florida mortgage in the formal county records is considered an absolute bar to collecting any more money from the borrower as well as an extinguishment of the mortgage.  However, if there has been a mistake, or an accident, or some kind of fraud, then Florida courts have held this general rule will not apply.    Biggs v. Smith, 134 Fla. 569, 184 So. 106 (1938).

2.  Foreclosure Judgment

Another big exception to the Satisfaction of Mortgage law happens when the lender forecloses on the property.  If the borrower stops paying on the home loan, then the bank can file a lawsuit to foreclose on the home or condo.

Once the foreclosure lawsuit ends, if the bank wins, then it gets a judgment of foreclosure signed by the judge.  That allows the lender to sell the home or condo in order to get money to pay off that unpaid mortgage balance.

Under Florida law, the lender (mortgagee) does not have to file a Satisfaction after the sale of mortgaged property pursuant to a final judgment of foreclosure.  The title is clear for the third party buyer at the foreclosure sale under the foreclosure laws, but the defaulting homeowner does not get documentation in the record that would suggest that his debt had been paid.  Lashinsky v. First Fed. S & L Ass’n, 434 So. 2d 38 (Fla. Dist. Ct. App. 1983).

Question about a Satisfaction of Mortgage and Release of Lien Florida Law?

When you pay off your home loan, it’s sometimes a cause for celebration.  You have achieved the American Dream of owning a home free and clear!  The thing is, that doesn’t happen unless the bank does its part to remove the lien it has on your property.

Unfortunately, because of the very same reasons which lead to foreclosure fiasco several years ago, bank often fail to record a satisfaction of mortgage. In some instances, a lawsuit may need to be filed against “your lender” before a satisfaction of mortgage is issued; meaning, you may need a judge’s signature on a court order to make sure your property is free and clear of the bank’s mortgage

If you are dealing with a lender who refuses to issue a satisfaction of mortgage in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including the amount of time a lender has to issue and record a satisfaction. 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.

 
 
 
 
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How Do You Terminate The Joint Tenancy of Florida Real Estate?  

Posted By on December 13, 2016

In Florida, there is more than one way to own an interest in real estate.  It’s important to understand these ways before “taking title” to the property at the closing table.

One key question in deciding how to own property:  is the owner able to convey complete ownership in the future to a third party without the need of having others join in to complete the transaction.  Most everyone understands that if they are the sole owner of their property, then its easy to transfer ownership by simply signing a deed to the new grantee.

However, what if you have a shared interest?  Lots of people here in South Florida own residential real estate as shared owners.  Maybe they are husband and wife.  Maybe they are investment partners; mother and son; or heirs who inherited the place.  In these scenarios, they are likely “joint tenants” who share ownership, possession and title.

 

Miami Beach beach, June 2004

Miami Beach, Florida


 

Co-Ownership of Florida Real Estate

There are several kinds of co-ownership here in Florida. The most popular undivided interests are:  “tenants by the entirety,” “tenants in common,” and “joint tenants with right of survivorship.”

1.  Tenants by the Entirety

Legally recognized married couples under Florida law are allowed to co-own residential real estate here as “tenants by the entirety.”  The title to the real estate is in both of their names.  Then, when either the husband or wife passes away, the surviving spouse automatically becomes full owner of the entire interest in the real estate.  There is no need to probate the deceased’s real estate interest here because his or her interest in the property transfers to his or her spouse by way of the right of survivorship, which is inherent in this form of property ownership.

2.  Tenants in Common

Anyone who can legally own real estate in Florida can have a co-ownership interest in the property.  Furthermore, there is no set legal limit on the number of co-owners real estate can have.

In Florida, “Tenants in common” is the default form of co-ownership in real estate.  A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property.  It is characterized by each owner having the right to possession of the property.

The extent of each co-owners interest in the property generally depends upon how much they contributed to it.  For instance, if one owner of a Miami Beach oceanfront condo paid 50% of the sales price, he or she owns 50% of the undivided interest in the property (co-tenants are presumed to own equal undivided interests).

In this form of ownership there is no right of survivorship.  When a co-owner dies, their interest transfer to their heirs (by intestacy if there’s no will) or according to the co-owners wishes in their will.

3.  Joint Tenants with Right of Survivorship

Sometimes, the joint tenants may have a “right of survivorship.”  Generally, a joint tenancy with right of survivorship (JTWROS) means that the owners have equal rights to the real estate, share and share alike.  If one of them dies then their share is automatically transferred to the remaining living owners.

It’s a form of ownership that has been contemplated by the Florida Legislature.  In Florida Statute 689.15, land will not pass upon the death of an owner via a right of survivorship unless specific legal steps are taken.

The law requires “… the instrument creating the estate shall expressly provide for the right of survivorship.”  So if you want to take title as a joint tenant with right of survivorship, then you need to make sure that the documentation properly reflects that intent.

Furthermore, there are other legal concerns regarding holding property as joint tenants with rights of survivorship.  See our earlier discussion in our post, “In Florida, Shared (Joint) Ownership Can Be a Big Problem If a Creditor Stakes a Claim Against the Property in Joint Tenancy with Right of Survivorship.”

Ending Joint Tenancy or Co-Ownership of Florida Real Estate

Not everyone wants to have shared ownership in real estate.  This is especially true if the owners are a married couple going through a divorce.  Or, grand-kids who inherit Florida real estate.  It may not be financially prudent for them to share ownership in a piece of real estate, or maybe the co-owners just don’t get along.

3 ways to terminate a Florida joint tenancy.

For those interested in learning how to end joint ownership in Florida residential real estate, then Florida law offers the following ways to terminate a joint tenancy:

1.  Termination By Operation of Law.

By definition, “joint tenancies with right of survivorship” (JTWROS) exist for a limited time.  That’s because this form of ownership ends when one of the joint tenants dies. The dying party’s interest transfers to the surviving owner or co-owners at some point in the future.

The Case of Foreclosure on a Joint Tenant

In the Moring case, a Florida lender filed a foreclosure action against Mattie Moring for failure to pay on a mortgage.  As plaintiff, the lender joined Mr. and Mrs. Richard Roundtree in the foreclosure case because they were believed to have a shared interest in the property. DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).

They did.  The ownership here was as Joint Tenants with Right of Survivorship.  The deed to the property filed in the St. Lucie County real estate records specifically stated that Mattie Moring and Richard Roundtree were (1) joint tenants with right of survivorship and (2) on the death of either the estate would survive to the other tenant.  (Mrs. Roundtree had a legal interest as Mr. Roundtree’s spouse.)

Problems arose when Mattie Moring went and got a loan on the property without bothering to tell Mr. Roundtree.  Things got more complicated when Mattie passed away several months after the foreclosure lawsuit was filed.

Mr. Roundtree argued that he now owned the property free and clear.  The bank didn’t agree and wanted him to cover the unpaid mortgage.

What happens now?  Under Florida law, the court explained, the interest of the joint tenant terminates upon her death prior to the other joint tenant.

The mortgage on the joint tenant’s interest was a “defeasible interest” held by the lender.  When Mattie passed away then the lien terminated because the interest held by the mortgagor terminated by operation of law.

The bank lost.  The foreclosure action was dismissed by the trial court (and affirmed on appeal).

2.  Sell it to a stranger.

One way you can end a joint tenancy in Florida real estate is to sell your interest in the property to a stranger.  It is entirely permissible for someone who owns residential real estate in Florida to sell their interest to anyone of their choosing.  DAD, INC. v. Moring, 218 So. 2d 451 (Fla. Dist. Ct. App. 1969).

Additionally, in Florida, a joint tenant of residential real estate may sell his or her interest in the property to a total stranger without the consent of the other joint tenants.  Harelik v. Teshoney, 337 So. 2d 828 (Fla. Dist. Ct. App. 1976).

Mother Sells Her Joint Interest to a Stranger

In the case of Harelik v. Teshoney, Esther Lawrence conveyed some property in Volusia County to Charles Harelik and his mother, Stella Harelik.   Stella was a widow.  The deed was specific, conveying the tract to the mother and son as joint tenants with rights of survivorship and specifically not as tenants in common.

Sometime later, Mrs. Harelik conveyed her interest in the property to Lila Teshoney.  Mrs. Harelik kept a life estate in the transaction.  Charles wasn’t involved in this deal.

Stella Harelik died.  Charles claimed full ownership and Lila said no, she had an ownership interest too.   Charles filed a lawsuit to have the courts decide who held legal title to the land.

The court considered whether or not the Widow Harelik could gut that deed conveying the land as a joint tenancy with the right of survivorship all by herself.

Can someone who owns land as a JTWROS unilaterally terminate the right of survivorship?  Yes.

Citing to the Florida Supreme Court in explanation, the court held it is Florida law that a joint tenant can destroy the right of survivorship.  The requirement here is that when she does so, she must end her interest in a manner that prevents her from claiming by survivorship any interest in the subject matter of the joint tenancy.

Since Mother had transferred her interest in such a way that if her son had passed, she could not claim full title as JTWROS, she had ended the joint tenancy.  The court called this ending the “unity” between mother and son as co-owners in the land.

So, you can terminate a joint tenancy in Florida land if you transfer your interest to a stranger, because you have done what courts consider to have destroyed “the unity of title” with your joint tenants.

2.  Transfer it to another joint tenant.

Another way to terminate joint ownership of Florida real estate is for one co-owner to convey their ownership interest to another joint tenant (or tenants).  If there are several joint owners, then the ones who are not involved in the transaction do not have to know about the conveyance, much less approve of it.  Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. Dist. Ct. App. 1991).

The Case of Countrywide Funding Corp. v. Palmer

In the Countrywide case, Countrywide filed a foreclosure action against a piece of Florida real estate held in a deed jointly by a mother, Adelina Hentzschel, and her son, Jose Baca.

The deed was specific that mother and son owned the home as joint tenants with right of survivorship.   Originally, mother Adelina had bought the real estate and then filed the deed as JTWROS for herself and her son Jose.

Later, another deed was filed.  This was a quitclaim deed from mother and son to Jose Baca.

After this quitclaim to Jose was filed with the clerk’s office, Jose got a mortgage from Essex Mortgage Company and then refinanced with Bayside Federal Savings and Loan.  Bayside then assigned the mortgage to Countrywide.

Then Jose Baca died.  Mortgage payments didn’t get paid. The lender, Countrywide, foreclosed.

In the foreclosure action, it was proven that the quitclaim deed was forged.  Mother Adelina had never signed that deed.  However, Jose had done so.

By signing that deed, had Jose terminated the Joint Tenancy with Right of Survivorship with his mother?  Yes.

The quitclaim terminated the joint tenancy with right of survivorship.  Now, his mother owned the land as a tenant in common.

Jose had the power to convert that JTWROS to a tenancy in common, without his mother’s knowledge or consent.  He terminated the JTWROS by transferring his joint tenant interest to himself as grantee.

The lender had the right to foreclose on the son’s undivided one-half interest in the tenancy in common which resulted from his deed to himself.  As between the two innocents, the mother who had been the victim of forgery and the lender who had loaned money, the court sided with the lender.

(Other ways to end a joint tenancy include simply transferring the interest in the property to a family member.  Also, one co-owner can seek to partition the Florida real estate. Partition is where the court orders the property sold because one co-tenant has sued another to end the shared ownership of the property. This usually happens when the property is inherited or after a divorce.)

Do You Have a Problem with a Co-Owner of Jointly Owned Florida Real Estate?

Joint tenancies in Florida can be complicated, especially if the owners don’t get along or they can’t decide how the property should be managed (sell, rent, etc.).  Both statute and case law can impact how disputes get resolved.

If you are dealing with jointly owned real estate in Florida, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights, including how the profits are to be divided and how the costs to operate the property are to be shared. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Related: Is Sharing Ownership of Florida Real Estate Causing a Problem For You? – Partition Actions in Florida

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

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

Posted By on December 8, 2016

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

Be aware, bed bugs bites can resemble spider bites and mosquito bites.  That’s why we recommend that you see a Doctor to determine the exact type of bite you have.  Often times, people learn that those innocent looking bites are in fact caused by bed bugs.

Bed Bugs and Landlord-Tenant Disputes

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

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

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

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

Bed Bug Claims – What About Insurance?

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

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

Can Bed Bugs Cause a Personal Injury Claim?

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

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

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

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

_______________

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

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

Posted By on November 29, 2016

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

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

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

 

Jeronimo globe

 

Notary Public and Florida Statute 117.107

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

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

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

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

Foreign Sellers and Florida Real Estate Closings

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

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

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

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

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

Florida Statute 693.03: Notarizing Documents for a Foreign Seller

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

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

The County Records Clerk and Florida Statute 695.03

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

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

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

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

What will the Clerk look for in the Deed?

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

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

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

1.  A Commissioner of Deeds

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

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

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

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

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

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

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

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

4.  Officers with the United States Military

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

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

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

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

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

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

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

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

_______________

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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Bartram: Florida Supreme Court Decision on Foreclosure Lawsuit Deadlines

Posted By on November 15, 2016

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

 

 

1.  Why is the Bartram Case so Important?

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

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

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

2.  What was the Ruling in the Bartram Case?

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

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

Read the lower court opinion here.

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

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

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

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

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

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

No, said the Florida Supreme Court.

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

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

From the Florida Supreme Court:

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

3.  What Happened in the Bartram Case?

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

Lewis Bartram Stops Making Payments on his Mortgage after his Divorce

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

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

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

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

Time passed.  Almost five years, in fact.

Bank Foreclosure Gets Dismissed by Trial Court

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

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

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

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

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

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

4.  What the Bartram Case Means to Borrowers

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

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

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

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

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

5.  What the Bartram Case Means to Lenders

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

Not now.

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

The Statute of Limitations Does Not Bar All Subsequent Foreclosure Lawsuits

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

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

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

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

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

What is the Impact of the Ruling?

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

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

What About the Other Foreclosure Defense Arguments?

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

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

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

What Should You Do?

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

Foreclosure Defenses still exist after Bartram.

Related: Florida Foreclosure Appeals

_______________

Picture of Larry Tolchinsky

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

 
 
 
 
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Florida Real Estate Contract Lawsuits

Posted By on November 1, 2016

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

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

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

 

Condo parade, Miami Beach, Florida LCCN2011630812

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


 

Breach of Contract Claims

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

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

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

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

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

Can You Protect Yourself From a Lawsuit?

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

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

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

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

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

Types of Florida Real Estate Contract Lawsuits

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

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

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

1. Effective Date Dispute

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

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

2. Time Is Of The Essence

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

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

3. Extensions

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

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

4. Title Issues

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

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

5. As Is Disputes

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

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

6. Repair or Property Condition Disputes

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

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

7. Contingencies

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

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

8. Cancellation And/Or Rescission

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

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

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

How Do Florida Real Estate Lawyers Help?

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

Dispute Resolution or Trial

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

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

 

example of contract provision requiring mediation

 

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

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

_______________

Picture of Larry Tolchinsky

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

 
 
 
 
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Florida Foreclosure Appeals

Posted By on October 18, 2016

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

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

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

Appealing a Trial Court’s Foreclosure Judgment

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

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

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

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

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

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

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

Foreclosure Summary Judgment Appeals

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

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

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

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

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

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

For more on the Florida Fair Foreclosure Act, read:

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

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

1. Standing

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

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

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

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

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

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

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

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

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

2. Lost Notes

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

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

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

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

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

3. The Amount Of Damages

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

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

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

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

4. Proper Business Record

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

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

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

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

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

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

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

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

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

5. Non-Holder In Possession

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

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

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

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

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

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

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

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

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

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

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

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

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

_______________

Picture of Larry Tolchinsky

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

 
 
 
 
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