Publications

Recent Decision Highlights Importance of Maintaining Original Note Modifications

By Janet C. Owens As we have previously discussed, under Florida law, in a foreclosure action, a lender must either provide the original promissory note or, if the note was lost, stolen, or destroyed, follow the statutory procedure for reestablishing a lost note. However, as a recent decision from the Fourth District Court of Appeal […]

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Third District Court of Appeal Withdraws Decision Applying the Statute of Limitations to Mortgage Foreclosures

By Adam B. Brandon Florida’s Third District Court of Appeal (DCA), sitting en banc, recently withdrew an unpopular decision applying the statute of limitations defense to mortgage foreclosures. As previously discussed on this blog, the Third DCA’s prior opinion in Deutsche Bank Trust Co. Am. v. Beauvais took the unique position that the dismissal of […]

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Replevin: A Remedy for Creditors

The Right of Replevin and What May Be Taken By Courtney Gaver Tracing its roots back to the common law, replevin is not a novel concept. While the cause of action is simple—allowing for the recovery of personal property that is wrongfully detained—replevin can be confusing for some creditors. This article is a brief glance […]

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Foreclosing First Mortgagees Not Liable for Additional Fees and Costs Incurred by HOA

By Janet C. Owens As we have previously discussed , although section 720.3085(2)(b), Florida Statutes, generally makes a subsequent owner of real property liable for all unpaid homeowners’ association assessments that came due under the previous owner, first mortgagees who acquire title through foreclosure may take advantage of a “safe harbor” under section 720.3085(2)(c), Florida […]

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Fourth DCA Reaffirms that a Mortgagee Must Only Substantially Comply With Conditions Precedent to Foreclosure

By Timothy D. Hedrick and Mark S. Mitchell Often times, mortgages contain certain “conditions precedent” to foreclosure that require mortgagees to take certain acts before they may commence an action to foreclose on their collateral. The simplest example of a mortgagee’s condition precedent is a requirement that a mortgagee send a notice of default and […]

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