Posted By Larry Tolchinsky on May 28, 2013

Lots of money is being spent in the month of May 2013 on the continuing Florida foreclosure crisis, providing some good news for Florida borrowers and Florida home owners — however, not all of the news is good — including the news on how the law may be changing regarding how foreclosures are handled in Florida.

Consider the following five changes facing Florida foreclosure borrowers and Florida home owners now:

1.  Pam Bondi announces Floridians paid approximately $8.6 billion from national mortgage settlement with the Big Banks.

Last week, Florida Attorney General Pam Bondi announced that Florida home loan borrowers have been paid almost $9 billion as a result of the national mortgage settlement agreement with the five biggest mortgage lenders / mortgage servicers (see our earlier posts for details on this settlement deal).

The May 2013 Report from the Settlement Monitor tallies over 111,000 Floridians have been paid around $8.6 billion and received another $315 million in principal reduction via pending home loan modifications.

You can read the Settlement Monitor Report and other information on the oversight of the big banks in complying with the deal they made to pay money to Florida borrowers, and others around the country, in order to avoid criminal prosecution by the various state attorneys general.

2.  Wells Fargo Announces Approx $20 Million Settlement in Force-Place Insurance Fraud Case Brought By Home Owners in Miami Federal Lawsuit

On May 20, 2013, a settlement agreement was revealed between Wells Fargo Bank and insurer QBE and over 24,000 Florida home owners who sued them in Miami federal district court (it still needs the federal judge Robert Scola Jr.’s approval before it is a done deal).

Wells Fargo Bank, under the settlement, will pay (with the insurance company) around $19.25 million in settlement of a lawsuit where the plaintiffs alleged that “force placed” insurance policies were bumped up to over 5 or 6 times the normal policy rates on people already facing foreclosure on their homes.  The defendants are not admitted to doing anything wrong.

3.  Florida State Budget Provides Millions to State Court Administrator To Push Through Bottleneck of Florida Foreclosure Lawsuits

Florida Senate Bill 1852 became law this week, which means more big money going toward helping fix the big Florida foreclosure mess.  Here, another stack of cash has been marked by the State of Florida’s Office of the State Courts Administrator to move along the bottleneck of Florida foreclosure lawsuits.  This money comes out of the big national foreclosure settlement, too, but this money was moved into a separate bucket from the money to be distributed to home owners and borrowers who have been victims of foreclosure fraud and into a fund to pay for making the bottleneck go away.  This just got approved as part of the new State of Florida budget okayed by Florida Governor Rick Scott in SB1852.  

From the Florida State Courts Administrator:

1. $16 million for the courts to pay for increased use of senior judges, general magistrates, and case managers to help dispose of foreclosures.
2. $5.3 million to the state courts system to pay for technology to help handle foreclosures to be spent over the next two years.
3. $9.3 million to county clerks of courts to help courts with foreclosure paperwork.
4. $10 million for legal aid agencies to help low- and moderate-income homeowners threatened with foreclosure.

4.  Florida Supreme Court Issues Order Allowing “Magistrates” To Preside Over Foreclosure Trials

This month, the Florida Supreme Court unanimously issued an order (read the Order here) that okays Florida chief judges to put “general magistrates” in charge of backlogged foreclosure dockets in their jurisdiction.  These are not judges who have to answer to voters: these “magistrates” will be ruling on foreclosure actions and deciding what will happen to family homes without having to worry about answering to the voting public for their decisions.

Of course, the bottleneck is a real problem.  Estimates are that we face around 400,000 pending foreclosure lawsuits now, statewide, and that this may be the tip of the iceberg with as many as another 700,000 being filed by 2016.

Another 700,000: think about that.  

5.  Today, HB87 Was Presented to Florida Governor Rick Scott for His Signature

Today, May 28, 2013, the controversial bill HB87 was officially placed on Governor Rick Scott’s desk for his signature.  (Read about this proposed law here.)  There are those that are urging the Governor to veto this bill, in order to do justice for Florida home owners and Florida borrowers victimized in the past (and who will be victimized in the future) by mortgage lenders and home loan banks.

People like State Senator Darren Soto are working hard to block this bill from becoming law.  Read his letter to Governor Scott here.

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

“I’m happy to take your call.”

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Tags: Florida Real Estate Foreclosures, Foreclosure Fraud, Foreclosure Lawsuit, Wrongful Foreclosure

Posted By Larry Tolchinsky on May 21, 2013

South Florida Condo Ownership is Different Than Owning a Single Family Home

For those looking into buying a Florida condo, as well as those who own a condominium either as their home or as an investment property, one of the key considerations in this type of real estate ownership is the reality of dealing with an association or board.  Buying, owning, or renting out a single family home often means you make certain decisions yourself: can or will there be a hot tub?; what color will your front door be?;  what kind of pets can your kids have in the house?

Owning a single family home (which is not part of a homeowner’s association) also means that you have the responsibility for all the upkeep and maintenance.  Yearly checks of the air conditioning system?  Your job.  Making sure that there’s not a leak in the wall behind the dishwasher?  Your job.  And if repair is needed, it’s up to you to get that done – and to file a claim with your homeowner’s insurance coverage as needed.

Condo ownership is different, and for many, the difference of sharing common areas and sharing responsibility for things that a single family home owner shoulders all alone is one of the big benefits of owning a Florida condo.  It can be especially nice if you own a condo as a second home or as an investment and not be nearby to check on things – knowing that there is a Board of Association watching over the property can be comforting.

Many see this as being smart, and so they buy a condominium in South Florida because they know they can leave a lot of these chores to the local “authorities.”

Condo Boards, Community Associations:  Powerful Entities Given Rights Under Florida Statutes

As we have posted about earlier, these kinds of properties have specific laws and regulations that govern them.  Boards and Associations can wield lots of power in their arena; when some go bad, owners can feel like they are living in a fiefdom where the Board acts as ruler, issuing edicts and forcing compliance at its whim.  Many, many controversies arise every day between individual owners and governing bodies over owner’s desires to do or not to do some act.

Rogue condo boards and community associations defend themselves against claims of individual owners everyday.  These kinds of cases are so commonplace that alternative dispute resolution has been implemented.  The Florida Legislature has passed special laws to deal with the situation, explaining:

(3) LEGISLATIVE FINDINGS.—

(a) The Legislature finds that unit owners are frequently at a disadvantage when litigating against an association. Specifically, a condominium association, with its statutory assessment authority, is often more able to bear the costs and expenses of litigation than the unit owner who must rely on his or her own financial resources to satisfy the costs of litigation against the association.

(b) The Legislature finds that alternative dispute resolution has been making progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to court litigation. However, the Legislature also finds that alternative dispute resolution should not be used as a mechanism to encourage the filing of frivolous or nuisance suits.

(c) There exists a need to develop a flexible means of alternative dispute resolution that directs disputes to the most efficient means of resolution.

(d) The high cost and significant delay of circuit court litigation faced by unit owners in the state can be alleviated by requiring nonbinding arbitration and mediation in appropriate cases, thereby reducing delay and attorney’s fees while preserving the right of either party to have its case heard by a jury, if applicable, in a court of law.

What does that mean?  An individual owner is unable to immediately file a lawsuit in civil court over his or her challenge to the Board or Association, no matter how meritorious, because certain complaints must be heard before a Mediator or Third Party Arbitrator.

See Florida Statute §718.1255 which discusses alternative dispute resolution, voluntary mediation and mandatory nonbinding arbitration between a condo owner and the board of directors.

Not All Disputes Are Routed to the Conference Table in Mediation or Arbitration: Instances Where An Owner Can Sue

There are key exceptions to the Florida laws that push unhappy condo owners to mediation and arbitration, and one of them involves defining the type of dispute that is involved.  There are certain controversies that are considered so serious that they go directly to a civil lawsuit where a judge will preside over them.

Disputes are defined here by Florida Statute §718.1255(1), which provides that:

“Dispute” does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

Bottom line?  Condo owners with the following complaints can file their lawsuit without concern about a preliminary mediation or arbitration:

• real estate title issues to the unit
• real estate title issues to a common element
• issues over a warranty’s coverage (interpretation of the warranty’s language)
• issues over whether or not a warranty covers something
• conflicts over fees or assessments levied or collected against someone
• eviction or removal of a tenant
• breaches of fiduciary duties of the Board or Association Directors
• claims against the Association or Board for failing to do their duty regarding care and maintance of common areas.

Larry Tolchinsky’s Tip:  When you have a title issue, a damage claim because of common area mishaps like a shared air conditioning system causes damage, a pipe servicing several units bursts and causes water damage in your unit, or a sewage line breaks, and the ruling authorities don’t promptly address your needs, then that’s when you can simply file a lawsuit and ask the Court for help.

Own a Florida condo?  Follow our posts under the topic “Condos and Townhomes” here on AboutFloridaLaw.com.

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

“I’m happy to take your call.”

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Tags: arbitration, Condo Law, Condominium Lawyer, Florida Condo Law, Florida Condominium, Quiet Title

Posted By Larry Tolchinsky on May 16, 2013

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Tags: Broward County Probate, Broward Real Estate, Florida Homestead, Florida Law, Florida Real Estate, Florida Trusts, strategic default

Posted By Larry Tolchinsky on May 14, 2013

Florida condominiums are used in several ways, as year-round homes, as vacation homes, and as investment properties. Many Florida condo owners permanently live in other parts of the country as well as around the world.

In fact, our local area is well-known with foreign buyers: the National Association of Realtors’ Profile of International Home Buyers has confirmed that last year, over 31% of all international real estate sales in Florida happened here, in the Miami area and its surrounding communities.  Over half of these foreign buyers in our area (coming from Canada, Venezuela, Britian, and more) are buying South Florida condominiums.

Condos are home to lots of folks and they are hot properties today.  According to the Miami Association of Realtors, the median sales price for a Miami-Dade condo was up 24.6% from last year (comparing first quarters) and already in May 2013, the sales prices for these condo properties has rise 4.5% over the first quarter of 2013.

Which brings us to the issue of upkeep and maintenance of these properties, particularly water damage.  Whether an owner, a tenant, or a property manager is responsible for monitoring the condition of a Florida condo, one of the biggest concerns from a real estate ownership perspective is avoiding water damage and the expense of property repair due to water damage losses.  This is true not only for condos that are being considered for sale, rent or purchase, but for Florida condos that are permanent and long term homes for their owners.

Types of Water Damage Common in South Florida Condos

Condominiums are known to have particular kinds of water damage issues as a general rule, many of which can impact not just the single unit but neighboring condominiums and the common areas as well.  These include:

• washing machines that leak onto floors that do not have drains in the floor to protect against excess water coming from the washer;
• burst water pipes (those who don’t live in South Florida in the winter may not realize that we can reach freezing temperatures here that can impact plumbing);
• leaky toilets (like a busted fill valve);
• water heaters that leak (again, this is a real concern when floors do not have drains);
• dishwashers that leak (hoses fail, for example);
• refrigerators leaking (usually these aren’t discovered quickly since the kitchen design may hide the sides and back of the fridge); and
• bathtub and showers (old caulk that lets water through, shower pans that fail).

Fighting Insurance Companies Who Fail to Pay Water Damage Claims or Not Paying Enough on a Condo Water Damage Claim

Property insurance policies exist to help condo owners in situations where water damage has harmed their property.  Most people assume that they pay their insurance premiums and if they need to file a claim on their property insurance policy, things should be simple — as simple as it is for the insurance company to take that premium payment every month.

Unfortunately, this is not the case in many instances of South Florida condo owners filing claims for damage, particularly water damage, to their real estate.  It’s true that you can usually call in your claim, that’s easy enough.  However, the folk on the other end of the line aren’t your pals here:  they are representatives of a big company that answers to shareholders and is very interested in its bottom line.

Claims mean money paid out that lessens profit to the insurance company.  Insurance companies work not to help the individual policyholder but to keep the company profitable.  That’s the reality of things, which means that condo owners need to be well prepared to deal with the event of a insurance claim needing to be filed.

Condo owners need to do things like:

• make sure that the policy information that has been reported to the carrier is accurate (if it’s not all accurate, then it may form the basis of a denial);
• make sure that they have kept up with their property so the carrier cannot blame them for the loss;
• be aware of Florida laws, including the availability of public adjusters, who are third party professionals that can come in to evaluate the situation as an independent third eye (instead of relying on the company’s employee to be the adjuster on the claim); and
• be aware of the claims process — how long they have to file a claim, and when claims need to be filed as soon as possible after the damage has occurred.

If insurance claims aren’t properly respected, either because they pay too little or because they are denied outright, then filing a lawsuit against the insurance company may be the best alternative for the condo owner.  Litigation may be necessary in these South Florida situations, especially in instances where weather has resulted in a lot of claims being filed in a short time period.

Condo owners need to be aware of their rights and responsibilities regarding property damage and property insurance claims.  And those considering buying a South Florida condo, or those Miami area condo owners who live in other states or foreign countries, need to know their rights and prepare in advance to avoid a condo insurance claim fight.

Special Note For Our Frequent Readers:  Realty Trac’s latest Foreclosure Market Report has been released for May 2013, and according to their experts, there’s good news and bad news. Good news? Florida new (starting) foreclosures fell 27% from March 2013 to April 2013.

Not so good:  April 2013 and March 2013 both saw Florida with the 2nd highest foreclosure rate in the United States.  Also, foreclosure auctions in Florida (NFS) were up 55% from April 2012 and that means April 2013 is the 4th month in a row with an annual increase in foreclosure auctions scheduled to happen in Florida.

There’s more:  check out the report summary at RealtyTrac.

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

“I’m happy to take your call.”

Related:
Florida Condominium Law and the Broken Water Heater

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Tags: condo damage, Condo Law, Condominium Lawyer, Florida Condo Law, Florida Condominium, insurance claims, Property Insurance

Posted By Larry Tolchinsky on May 9, 2013

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Tags: Florida Real Estate Foreclosures, Foreclosure defense attorney, foreclosure defenses, House foreclosure, Mortgage foreclosure, Property foreclosure