Publications


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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Applying the Doctrine of Ratification in the Mortgage Context

By Edward L. Kelly and Karl R. Gruss Florida’s doctrine of ratification allows for enforcement of a contract against an individual who did not actually sign the contract so long as the individual intended to affirm the contract and possessed full knowledge of the material facts surrounding transaction. In the mortgage context, the doctrine provides […]

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11TH CIRCUIT CONFIRMS LIMITATION OF TILA LIABILITY FOR ASSIGNEES

By Adam B. Brandon The Truth in Lending Act (“TILA”) requires lenders to make certain disclosures to borrowers about the terms of residential mortgages. For example, TILA requires a lender to provide a payoff balance to a borrower within seven business days of a written request. See 15 U.S.C. § 1639g. An original “creditor” who […]

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