All entries tagged with “real estate law”

The No Mercy Eviction Rule for Tenants

A recent decision in the 11th Circuit in Broward County highlights a rule that can have very severe application for tenants in an eviction case.  The case of Fagan v.New Hope Dream Team Charity, Inc. (24 Fla. L. Weekly Supp. 925a) reminds tenants of the pitfalls of 83.20(2), Florida Statutes. In fact, this section has been referred to as being a "no mercy" system for tenants, as well as commonly called "pay to play."  The Section requires tenants, within only five days after being served with the complaint, to either post with (i.e., pay to) the clerk of the court all of the claimed back owed rent or to file a motion to determine how much that rent should be.   If the tenant fails to do either, the landlord is entitled--without a hearing or notice--to a court order granting the landlord possession of the property and the tenant is deemed to have waived all defenses related to the possession of the property.  

While many deadlines in litigation can be either extended or even remedied if the missing of such a deadline was a good faith mistake with proper action taken to correct it quickly, Florida Statutes 83.20 allows for no wiggle room or apologies.  In fact, courts are forbidden from even taking into consideration the reasons the deadline was missed (including potentially even a serious injury or other real and actual emergency).  See, Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, *812 (Fla 3d DCA 2010).  

It is critical that both landlords and tenants know their rights and be aware of the timelines and requirements imposed in an eviction in order to preserve that party's rights in a landlord-tenant eviction action.  If you have questions about your lease or about eviction, contact our landlord-tenant litigators today. 

Ruminations on a Default Notice and Witness Foundation

We have on several occasions in this blog touched on the requirements of standing for the lender, evidentiary requirements for the default notice, and foundation for bank witnesses.  Though recently there had seemed to be a tightening of requirements for proving the sending of the default notice and for qualifying a witness to speak on another institution's default notice generation protocols and record-keeping, a recent case seems to again potentially lessen the burden on lenders seeking to foreclose.  

In the case of JPMORGAN CHASE BANK NATIONAL ASSOCIATION v. JEAN PIERRE 2017 Fla. App. LEXIS 4632, 42 Fla. L. Weekly D 781, 42 Fla. L. Weekly D 781 (Fla. Dist. Ct. App. 4th Dist. Apr. 5, 2017), the Fourth District Court of Appeals reversed judgment in favor of the borrowers and ordered entry of judgment for the lender (actually, the successor in interest to the lender) on the basis that the trial court's findings that the bank had not proven that a default notice had been sent and that it had not proven standing were contrary to the law. 

In this case, though the witness that appeared worked for a third party servicer for the bank, she speculated about the date upon which the note had been transferred and testified that the servicer--not the bank that brought the action--owned the note.  Further, she testified that she had learned during her training at the servicer about the original (not the current lender that her company was actually representing) lender's  default notice generation protocols and that she was aware, generally, with those protocols and that her company had verified through collection notes that the letter had been sent.  

Citing issues with standing given the testimony by the record custodian that a party other than that which filed the complaint actually owned the note and testimony which apparently led the trial court to determine the witness did not have actual familiarity with the originating lender's default notice policy, the trial court entered judgment in favor of the borrowers.  The appellate court reversed and ordered entry of judgment in favor of the lender, stating (in sum) that the stated familiarity with the process by which a third party originating lender generally goes about sending letters with notice of default was sufficient and that it did not particularly matter when the witness believed the endorsement was signed transferring the note and it did not particularly matter that the witness thought her company owned the note in question rather than the Plaintiff lender.  

A subtle maneuver was made by the appellate court here, as well.  Though the standard of review was de novo, since the issues were deemed a matter of law, the question of whether the witness knew about the default notice procedure and whether a letter was sent was an issue of fact, since the borrowers had denied that a letter had been sent.  The appellate court seems to have taken the bank witness testimony at face value and disregarded the denial by the borrowers that any notice had been sent.  The trial court (which is presumed to be in the best positoin to weigh credibility of a witness) was disregarded by the appellate court on this point, which perhaps was due to the fact that the trial court did not make a finding on the record that the witness was not credible in her testimony. 

Compare this case to the recently reviewed case of Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), which we discussed here.  

If you have questions about a foreclosure, a contract, or other real estate dispute reach out to the foreclosure attorneys of Icard Merrill today. 


No Injunction Against Farmland Skydiving

A recent decision by the First District Court of Appeals provides at least a short-term win for lovers of fun and skydiving.  In Nipper v. Walton Cnty., the owners of a large agricultural tract defeated the County's attempt to secure an injunction against them operating a skydiving business on the property.  42 Fla. L. Weekly D171 (Fla. 1st DCA January 17, 2017).

The Court determined that the Nippers, who won a code enforcement hearing against the County previously, could not be enjoined from enjoying their skydiving since the County could not prove a clear legal right to the injunction.  The Court stated that the enforcement hearing provided that the County's position as given by the planning director was in conflict with the decision of enforcement and that enforcement's determination had been that the use of the property for jumping out of airplanes was not against code. 

If you have questions about the manner you want to use your property or questions about your rights as a property owner, our stellar land use team is available to help today.  

Unclean Hands and Fraudulent Mortgage Loan Applications

Borrowers facing foreclosure are often scared, confused, and under extreme stress.  The dream of the modern American family—ownership of a home—is in jeopardy for them.  Some borrowers are also angry; whether with themselves, with the lender, or with someone else.  In certain cases, this anger is justified, as has been made clear by a wave of mass or class actions in recent years against lenders for fraudulent or otherwise deceitful or predatory lending practices. 

However, in some cases, that anger may not be entirely justified—as in the case of Wells Fargo Bank, N.A. v. Williamson, where the borrowers sought to have the court dismiss the lender’s foreclosure action on the basis of allegations that the lender’s “loan consultant” falsified certain portions of the loan application, including the borrower’s liquid assets, monthly income, and ownership of other real property. (199 So. 3d 1031 (Fla. 4th DCA 2016). 

However, as the court astutely observed, the borrower either knew or should have known (and perhaps could not have been unaware) of those overstatements.  Though the borrower claimed to have not read any of the documents and that she did not know of the false statements, the record seems to indicate she was fully aware of how much she was borrowing, how much she was required to make in payments, and the other essential terms of the loan. 

As the court decided, the facts in this case could not prevent the lender from foreclosing an otherwise valid and enforceable note on the property.   As for those borrowers with misplaced anger over being approved for loans they should have known they could not afford, they will have to take responsibility for those loans even if the bank was complicit in helping the borrowers get into a loan above their means.  If they fail to take responsibility on their own, the court will not likely allow them avoid it for long.

If you are facing a foreclosure or need help understanding your closing documents or loan, please reach out to the transactional attorneys at Icard Merrill, who have helped thousands of people complete the purchase or sale of homes. 

Grievous Errors Continue in Foreclosure "Cattle Calls"

Anyone that has been to a foreclosure hearing or trial docket in the last five years or more will understand the obvious implications of those colloquially-termed "cattle call" dockets.  A room filled with attorneys, pro se homeowners, bored (or sometimes absent) bank representatives and court staff pack most courtrooms assigned to the foreclosure cases.  These conditions (and especially the dozens of cases set for the same hearing or trial time) lead to what some would consider an unusual amount of both mistakes and creative interpretations of the law and rules of evidence. A recent case outlines one (hopefully) extreme example of this situation.

In a Fourth District case, the homeowners were forced to appeal in order to overturn a judgment rendered almost entirely upon the testimony of a loan analyst that not only did not work for the then-current lender (and, seemingly never had worked for them), but also never worked for the predecessor lender and learned the information she testified to at trial by searching through Google on the internet. Sosa v. Bank of N.Y. Mellon, 187 So. 3d 943, 944 (Fla. 4th DCA 2016)  It bears repeating that the witness's testimony somehow avoided being stricken despite having virtually zero foundation whatsoever other than the witness essentially having heard of the lenders and looked them up on the web.  Thankfully, the appellate court prevented an egregious miscarriage of justice in this case, but the fact that a judgment was entered on these facts is frightening.  

This case drives home the point that it can be absolutely crucial to have competent counsel (as well as a court reporter) in a foreclosure trial or hearing.  Failure to have one could result in a homeowner having to either scramble after a zany ruling, or simply being ruled against in a way that clearly violates the law and rules of evidence.  Talk to the foreclosure attorneys at Icard Merrill today if you have questions about your home. 

Notice of default is a condition precedent to bringing a foreclosure. Except when it isn't.

A recent decision by the Fourth DCA illustrates an interesting phenomenon—where a court can simply use the lack of “prejudice” to the defendant to excuse a clear and express condition precedent to bringing an action in the first place where enforcing the condition precedent would likely result in elevating form over substance.   

In the case of Caraccia v. U.S. Bank, Nat. Ass'n, 185 So. 3d 1277, 1278 (Fla. 4th DCA 2016), the lender sent a letter of default to an address for the borrower (a P.O. box) that had supposedly been provided by the U.S. Postal Service, and the borrower responded to the default notice using the P.O. box address as the return address.  However, the mortgage stated clearly that any default letter must be sent to the borrower at the property address unless prior notice had been given to the bank by the borrower listing a new address for notices.

In determining that the failure of the bank to send the notice to the property address—a technical breach of its notice obligations under the mortgage—was not a valid basis for the borrower to move for dismissal, the court cited a 2015 Fifth DCA case (Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47) for the proposition that a breach of a condition precedent will not stand as a defense to “the enforcement of an otherwise valid contract” unless the defendant can show prejudice. 

This holding looks to be another excellent example of cases where bad facts make bad law. Though this is likely the ‘just’ result under these facts, the holding poses an interesting slippery slope argument that potentially renders into question the enforceability of any express condition precedent and represents an interesting bypassing of the parties’ agreement by the Fourth DCA using only a similar holding from the Fifth DCA as its legal foundation.  It will be interesting to see how far courts will be willing to go in ignoring clear expressions of the parties’ intentions in a written contract where there are less technically compelling facts at play.

If you have a contract and need advice on either enforcing it, defending yourself from enforcement, or just learning more about your legal rights under the contract’s terms; contact the business attorneys at Icard Merrill today.  

TILA a sword as well as a shield in residential foreclosure defense

Despite missing the statute of limitations for bringing a counterclaim of Truth in Lending Act (“TILA”) violations, defendant homeowners were entitled to a defense of setoff for TILA violations under 15 U.S. Code § 1640, found the Fourth DCA in its recent opinion rendered in Monnot v. U.S. Bank, Nat. Ass'n, 41 Fla. L. Weekly D474 (Fla. 4th DCA Feb. 24, 2016). 

The Fourth DCA helped homeowner borrowers turn a long-used sword, the TILA civil remedies, into a shield against lending institutions in Monnot.  Despite the fact that the consumer could not bring a successful claim against the lender under TILA because the statute of limitations had long run (a common bar for homeowners facing foreclosure—a time when the homeowner in many cases first gets a professional review of the loan documents on their behalf ), the court determined that a defense of setoff for those TILA violations could still be maintained—effectively resurrecting the viability of the claims as a shield in a foreclosure suit long after the claims should have been dead.

TILA (along with its implementing articles, Regulation Z) allows consumers to recoup actual damages (which can be tricky to prove in TILA actions since it often requires the consumer to show they would not have taken the loan had they known the truth at the time), statutory penalties of $200 to $2,000 (in purchase-money residential loans), recoupment of financing fees and charges, and attorneys’ fees and costs.  Awards of these damages could help reduce or offset the lender’s damages against the consumer by thousands of dollars and help the distressed borrowers avoid judgments in excess of the property value in question (and, therefore, bankruptcy in many cases). 

If you are facing foreclosure or other action to collect a debt or enforce a promissory note, contact the litigation attorneys of Icard Merrill, who have been serving residents of Sarasota, Manatee, Charlotte, Lee, and other nearby counties for decades.

Two Strikes and banks are out in foreclosure dismissals

In the always fascinating world of residential foreclosure cases, the specter of Ahab’s “free house” lurks in the minds of attorneys and litigants alike.  The phenomenon is rarely seen and is most often prevented through creative (if outright strained) reasoning by courts who seem intent on helping prevent monolithic banks which pay far too little attention to their customers and accounts from being prejudiced by monolithic foreclosure law firms who pay far too little attention to their cases and clients.   The “free house” ranges somewhere between a dream and a myth for distressed homeowners in foreclosure. 

A recent case in the Fourth DCA might represent the first step towards that dream for some homeowners faced with egregiously poor showings by banks and their attorneys in foreclosure suits.  In Nolan v. Mia Real Holdings, LLC, the Fourth DCA applied a commonly used procedural mechanism to the seemingly always abstract world of foreclosures to determine that, a second dismissal of the foreclosure action--even where the foreclosing entity has changed at some time during the process--will result in adjudication on the merits of the case.  185 So. 3d 1275, 1276 (Fla. 4th DCA 2016). 

In Nolan, the appellate court determined that a dismissal of the foreclosure action by the bank would stand as an adjudication on the merits since it was the second dismissal (the case was first voluntarily dismissed by the predecessor bank which assigned its interest subsequent to that first dismissal) in the action against the homeowner.   Since the second dismissal (again, voluntary) involved an action on the same note and alleging the same breach, the trial court determined (and the appellate court agreed) that judgment should be entered in favor of the borrowers. 

The court left the bank some wiggle room in its opinion, however, stating that the lender would be “required to refile a lawsuit against the homeowners alleging a new and separate breach by non-payment of the note.”  This point does not squarely address the issue which is commonly presented in situations such as this; wherein the bank has already accelerated the note and declared all payments due.   In such cases, trial courts have allowed the Bank to ‘change its mind’ by decelerating the note and declaring a new breach on unpaid installments that would have been due subsequent to the previous acceleration.  This bit of contract sleight of hand fails to address the mechanism by which a bank could undo its decision to cancel all future payments in favor of a lump sum due, but is a commonly applied trick to avert the “free house” phenomenon which would likely, on the balance, not be a just and equitable result in most instances.

If you are in the process of dealing with a default or foreclosure and have questions about the process, contact Icard Merrill’s foreclosure litigation attorneys, who have experience dealing with the often turbulent foreclosure arena and can help answer your questions and guide you through the process. 

Homeowner forced to enjoy his one foot wide dock

A homeowner was told by the Circuit Court for the Sixth Judicial Circuit (presiding over an appeal via writ of certiorari from a decision by the City of Treasure Island, Florida, Planning and Zoning Board) that his “hardship” resulting from the purchase of a property that would have allowed construction of only a one foot wide dock was the type of hardship brought on oneself and that the court would not grant a variance based on self-inflicted hardship.  Schmidt v. City of Treasure Island, Fla., Planning and Zoning Board, 23 Fla. L. Weekly Supp. 507a. 

Though the planning and zoning board had granted a variance allowing the homeowner to construct a wider—and, presumably, normally sized—dock, the Sixth Judicial Circuit reversed, finding that a neighbor had standing to challenge the award of the variance and that the homeowner had purchased property with knowledge at the time he closed on the property that only a limited swath of property was available to him for the construction of his dock.  Therefore, the court reasoned, any hardship was brought on by the purchaser of the property and no variance was permitted without a showing that “extreme hardship” would result in an enforcement of the setback without the granted variance.

As the homeowner enjoys the water view from his extra-slim dock, he may wonder if talking to an experienced land use and zoning and planning attorney could have helped him avoid this situation.  If you have questions about buying a property, obtaining a variance, or building a dock (of any size), talk to one of the decorated and recognized attorneys that practice land use and zoning and planning law in Sarasota, Manatee, and Charlotte Counties today.  

Erosion of the non-resident cost deposit trap

The non-resident cost deposit has long been a tool used by local litigators to harass and annoy out of state plaintiffs and their counsel.  The requirement pursuant to Florida Statutes § 57.011 forcing an out of state plaintiff to deposit $100 with the clerk when instituting an action to cover potential future costs for a prevailing defendant seems to achieve little other than to give persnickety—or, perhaps vexatious—litigants a handy procedural tool for getting a case dismissed on somewhat more arcane procedural grounds.   The bond is substantially less than the amount of costs normally incurred in defending an action, so it provides little of the protection which presumably was in the legislature’s mind when enacting the law. 

Continuing a trend away from this type of ‘form above substance’ procedural trickery, the Second DCA recently decided to turn the tables on a crafty defendant seeking dismissal of a mortgage foreclosure case on the basis of failure to timely pay a non-resident cost bond by the out of state plaintiff bank.  Dyck-O’Neal, Inc. v. Duffy, 40 Fla. L. Weekly D2660a (Fla. 2nd DCA 2015).  In this case, the Second DCA observed that, though the plaintiff had failed to either post the bond within twenty days following notice of the requirement or more than one month before a hearing on defendant’s motion to dismiss the complaint, the defendant had failed to show any prejudice, which meant the case should not have been dismissed.

As the appellate court noted, the trial court has discretion to consider the facts of the case and the coercive—but not punitive—nature of § 57.011 in securing the crucial sum of $100 from a carpetbagger plaintiff.  Thus, compliant (albeit tardy) plaintiffs can avoid a tricky procedural pitfall which could cost them attorneys’ fees on top of costs. 

As always, procedural traps abound for the unwary litigants.  Contact mortgage and real estate litigators that are experienced in dealing with these issues (and a host of others) for help navigating your legal issue. 

Be careful dismissing your action, even after you win

A recent court decision in Palm Beach County, Florida in the 15th Judicial Circuit awarded attorneys’ fees to a tenant who vacated the landlord’s property after the landlord filed an action for eviction and damages. Kornheisl v. Scuderi, et al., 23 Fla. L. Weekly Supp. 614c.    The landlord, having obtained possession without entry of a judgment when the tenant filed a so-called “Notice of Mootness,” stating that the property was being abandoned by the tenant.  Appearing to have prevailed on the issue of possession by concession of the tenant, the landlord dismissed the eviction count voluntarily.  The court later awarded attorneys’ fees and costs to the tenant on the eviction count*, stating that the tenant never entered into a settlement agreement with the landlord with respect to attorneys’ fees and that the landlord therefore dismissed the eviction count “at their peril.” 

This case illustrates some of the potential pitfalls that face landlords and other litigants that proceed on their own behalf without the advice of an attorney.  A brief consultation with an experienced litigation attorney could prevent backfires like the one the landlord faced in this case.


*Attorneys’ fees and costs were also awarded on the damages count, however this resulted from a dismissal by the court for lack of prosecution by the Landlord.

Time is of the Essence: Challenging Approved Development as Inconsistent with the Comprehensive Plan

may-15.jpgA towering monstrosity, a commercial complex, an industrial factory; the new construction just does not fit in with the rest of your quiet residential community.  In many instances these facilities may be challenged as inconsistent with the comprehensive plan for the local community.  Unfortunately for many, by the time they realize the new construction should be challenged as inconsistent with the comprehensive plan it is often too late.

Fla. Stat. § 163.3215 is “the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”  This section provides the mechanism for challenging the development order, but only provides thirty days from the approval of the development order to bring this challenge.1 In most cases, this means that by the time the inconsistent construction begins, the thirty day window to bring a challenge under Fla. Stat. § 163.3215 has closed.

Real estate and land use attorneys experienced in bringing these challenges, like those at Icard Merrill, are often able to circumvent the 30-day time limitation by challenging notice given by the local government concerning the approval of the development.  The seminal cases on the legally required notice to trigger the 30-day time limit under to Fla. Stat.  §163.3215 are commonly referred to as Das I and Das II.  In Das I, the Court was clear that “notice is required where a proposed project will affect the property of a party other than the one seeking the permit.”  Das v. Osceola Cnty., 685 So. 2d 990, 994 (Fla. 5th Dist. Ct. App. 1997).

While the Courts in Das I and Das II did provide some concrete examples of what would constitute sufficient notice, they did not provide a singular process for local governments to follow.  In other words, whether sufficient notice was given to trigger the 30-day time limit under to Fla. Stat. §163.3215 is often a very fact-specific grey area.  It is in navigating this grey area that an attorney experienced in bringing these challenges can make the difference between a dismissed challenge and achieving removal of the inconsistent construction.

Under any scenario, one of the keys to bringing challenges to construction that is inconsistent with the comprehensive plan is to act immediately.  Time is of the essence and challenges ultimately will be barred thirty days after the date proper notice was given.

Contact the offices of Icard Merrill in Sarasota, Bradenton and Punta Gorda as soon as possible if you would like to challenge an inconsistent development.

1  “Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.”  Fla. Stat. § 163.3215(3).

Icard Merrill's Michael L. Foreman Featured as a Panelist on Ethics and Professionalism At the 2014 Bench Bar Conference

Michael L. Foreman, an attorney and shareholder at Icard Merrill, was a featured presenter at the 2014 Bench Bar Conference.

The theme of this year’s conference focused on current issues related to civility and professionalism within the legal industry.

Mr. Foreman was a panelist in the breakout session dedicated to discussing civility for transactional lawyers practicing businessreal estate, probate, estate planning and guardianship law.

Mr. Foreman focuses in probate, estate planning and guardianship law and his discussions as a member of the panel dealt specifically with professionalism and civility within those areas of law.

Mr. Foreman highlighted frequent areas of professional and ethical violations for probate, estate planning, and guardianship attorneys. A unique situation that Mr. Foreman discussed was dual representation in the “second marriage” situation. One of Mr. Foreman’s pieces of advice was to make a “loud exit” by withdrawing if either party attempts ex-parte communication.

When discussing civility in communication with other attorneys, Mr. Foreman’s advice was to “put in writing, sleep on it before you send it, keep the big picture in mind, and use the Golden Rule.”

Read our press release for more information…