NEWS

When it comes to mergers and acquisitions (M&A) in Jacksonville, FL, there’s no such thing as a one-size-fits-all strategy. Maximizing the potential of your M&A strategy is unique and requires careful consideration of a variety of…

Owning and operating a business, no matter the size, involves complex legal and regulatory issues.  From the formation of your business, and daily operations, to executing the exit strategy that is right for you, the business…

FY 2024 H-1B Cap Initial Registration Period Opens on March 1   On January 27, 2023, U.S. Citizenship and Immigration Services (“USCIS”) announced that the initial registration period for fiscal year 2024 H-1B cap will open…

Effective January 13, 2023, the Occupational Safety and Health Administration (OSHA) increased its penalties based on the increase in the Consumer Price Index.  These increases are as follows: Type of Violation Maximum Penalty Serious                                  $15,625 per violation…

Effective January 30, 2023, U.S. Citizenship and Immigration Services (“USCIS”) is accepting the filing of Form I-907, Premium Processing Request (a request for 15-day adjudication) for all pending and initial multinational executives and managers (“EB-1”), and members of…

With summer now upon us, employees are being exposed to higher temperatures in or at workplaces, and OSHA has announced an initiative to enforce claims related to heat-related illnesses and deaths. Although OSHA has not yet…

Effective January 15, 2022, the Occupational Safety and Health Admnistration (OSHA) is authorized to assess higher fines against employers based on the annual increase in the Consumer Price Index. The new fine schedule is: Type of Violation Maximum…

On June 30, Governor DeSantis signed into law HB 487, which increased the size of development projects that may be the subject of “small scale” land use amendments from 10 acres to 50 acres. The new…

Late last week, the Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 guidance to employers in light of recent guidance from the Centers for Disease Control and Prevention (“CDC”) relating to vaccinated individuals. OSHA modified…

On March 12, 2021, the Occupational Safety and Health Administration (“OSHA”) launched a National Emphasis Program (“NEP”) in an effort to protect workers from the hazard of contracting COVID-19 at work.  This NEP was issued the…

On January 29, the federal Occupational Safety and Health Administration (OSHA) issued guidance to employers on how to make the workplace safe from potential exposure to the COVID-19 virus. You should know that the Occupational Safety and…

Beginning January 15, 2021, the maximum fine under the Occupational Safety and Health Act for a serious or other-than-serious violation increases to $13,653 per violation.  Significantly, for each willful or repeat violation, the maximum fine increases…

On Sunday December 27, 2020, as part of an omnibus spending package in the Consolidated Appropriations Act, 2021, the President signed into law the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Act”). …

On Thursday October 8, 2020, the U.S. Small Business Administration (SBA) issued an interim final rule (the “SBA PPP Interim Final Rule”), which is effective immediately, announcing, as described below, additional guidance concerning exemptions to reduction…

The U.S. Small Business Administration (“SBA”), in consultation with the U.S. Department of the Treasury, has from time to time issued responses to frequently asked questions by lenders and borrowers regarding the PPP (the “SBA PPP…

On Saturday July 4, 2020, the President signed into law congressional bill S. 4116, extending the application deadline for Paycheck Protection Program (PPP) loans from June 30, 2020 until August 8, 2020.  Otherwise eligible businesses who…

On June 22, 2020, President Trump issued a new proclamation temporarily suspending entry into the United States of certain nonimmigrants seeking to enter on the popular H-1B (specialty occupation), H-2B (seasonal worker), L-1 (intracompany transferee), and…

On Tuesday June 16, 2020, the SBA posted a new short-form Paycheck Protection Program PPP Loan Forgiveness Application Form 3508 EZ, together with instructions (“PPP New Forgiveness Application EZ”), and a revised Form 3508 Paycheck Protection…

On Friday June 5, 2020, the President signed into law the Paycheck Protection Program Flexibility Act of 2020 (the “PPP Flexibility Act”), which makes a number of significant changes to the Paycheck Protection Program (PPP)  and…

Mobility Fee Waiver Update: On April 27, 2020, the Jacksonville City Council approved Ordinance 2020-235, which, among other things, provided various financial incentives for the real estate industry, including certain mobility fee waivers.  A summary of…

On Friday May 22, 2020, the U.S. Small Business Administration (SBA) and the U.S. Department of the Treasury contemporaneously issued two interim final rules with respect to the Paycheck Protection Program (PPP).  The first rule relates…

On May 16, 2020, the U.S. Small Business Administration (SBA) issued the Paycheck Protection Program Loan Forgiveness Application (PPP Forgiveness Application) to be used by borrowers to apply for forgiveness of their Paycheck Protection Program (PPP)…

The U.S. Small Business Administration (“SBA”), in consultation with the U.S. Department of the Treasury, has extended the safe harbor repayment date to May 18, 2020. On May 13, 2020, the SBA added FAQ # 47…

Section 1102(a) of the CARES Act requires that all borrowers, in applying for a PPP loan, make a good faith certification “that the uncertainty of current economic conditions makes necessary the loan request to support the…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). The U.S. Small…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). The U.S. Small…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). From time to…

The coronavirus pandemic presents unique challenges regarding evaluation of workers’ compensation claims by employees who claim to have contracted COVID-19 in the course of their employment. Florida and other states have taken varying approaches to such…

Yesterday (April 28, 2020) at a Special Meeting the St. Johns County Commission approved Resolution No. 2020-147, which will temporarily reduce certain County development and permit fees in response to the COVID-19 health emergency. The fee…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). On Friday April…

This afternoon (April 27, 2020) at 1:00 p.m. the Jacksonville City Council will hear and vote on emergency legislation (Ordinance 2020-235) that provides direction on the distribution of the $159 million that the City of Jacksonville…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). The U.S. Small…

On Wednesday, April 22, 2020, President Trump signed a proclamation to temporarily suspend certain employment-based, family-based, and other immigrants from entering the United States for 60 days from the proclamation’s effective date of April 23, 2020. …

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing, among other things, authority to the Board of Governors of the Federal…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). On Thursday April…

On April 6th the City of Jacksonville adopted Ordinance 2020-200 which sets forth policies and procedures for public attendance and participation in City public “open meetings” during the COVID-19 state of emergency. When members of the…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” allowing for, among other things, a deferral by employers of the deposit and…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Paycheck Protection Program (“PPP”). On Thursday April…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, the Payment Protection Program (“PPP”). On Thursday April…

Two weeks ago we sent a summary of the measures being implemented by northeast Florida local governments in response to the COVID-19 pandemic.  Below is an update based upon additional inquiries with selected local governments, and…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing for, among other things, a refundable payroll tax credit for 50% of…

The Internal Revenue Service (“IRS”) issued guidance on tax credits for employers who pay for leave required under the Families First Coronavirus Response Act (“FFCRA”).  As part of this guidance, the IRS gave some detail on…

On March 31, 2020, the SBA issued initial guidance on the Paycheck Protection Program established under the CARES Act enacted May 27, 2020.  This guidance is available at at the US Small Business Administration website . Among other…

On Friday March 27, 2020, the President signed into law, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) or “CARES Act,” providing about $2 trillion to individuals, businesses, and states, among others, in response…

As we previously addressed, earlier this week the Wage and Hour Division of the U.S. Department of Labor (“DOL”) published answers to some key questions under the new paid leave provisions of the Families First Coronavirus…

Today, the U.S. Department of Labor (“DOL”) has published a poster with a model of the notice that covered employers must post pursuant to the Families First Coronavirus Response Act.  A copy of the poster can…

We have made inquiry with selected local governments, and reviewed the relevant information posted on their websites. While the following summary presents the best information available to us at this time (COB March 23), nevertheless, and…

Today, the Wage and Hour Division of the U.S. Department of Labor answered some key questions arising under the new paid leave provisions of the Families First Coronavirus Response Act.  Of most significance is that the…

On Friday, March 20, two days after enactment of the Families First Coronavirus Response Act (“FFCRA”), the U.S. Department of Treasury, Internal Revenue Service and U.S. Department of Labor jointly issued a news release announcing a…

Enactment of the Families First Coronavirus Response Act On March 18, 2020, the President of the United States signed into law the Families First Coronavirus Response Act (“FFCRA”). Three key portions of the FFCRA, which take…

With the Families First Coronavirus Response Act (“FFCRA”) set to take effect this week, the United States Department of Labor (“DOL”) has further revised and expanded its questions and answers providing guidance to employers on how…

By: Michael J. Lufkin FLORIDA MINIMUM WAGE INCREASE EFFECTIVE JANUARY 1, 2020 On October 16, 2019, the Florida Department of Economic Opportunity (DEO) announced that, effective January 1, 2020, the minimum wage in the State of Florida…

By: Kathryn K. Rudderman On March 7, 2019, the U.S. Department of Labor (“DOL”) announced the new proposed rule modifying the Fair Labor Standards Act’s overtime regulations.  This proposed rule (“New Rule”) replaces the rule issued by…

This article was written for and originally published in ALAS Managing Partners’ Corner Newsletter. By: Fred D. Franklin, Jr. and Brian G. Kelley As you probably know, the legal profession is facing a health crisis. The statistics are jarring: lawyers experience…

By: Emily G. Pierce On April 6 th , the Governor signed into law House Bill 1151, a 167 page bill which, among other things, eliminated Florida Quality Developments (“FQDs”) under Section 380.061, Florida Statutes and dramatically changed Section…

By: Scott J. Kennelly & James M. Riley Throughout the last couple of years, the Florida Department of Transportation has announced a number of road plans in Northeast Florida, with none more ambitious than the First Coast Outer Beltway,…

On November 6, 2017 the First District released its opinion in Arlington Pebble Creek, LLC v. Campus Edge Condominium Association, Inc. Although the opinion is based on well settled Florida law, it is a reminder of the challenge…

By: Emily G. Pierce On November 13 th , the City Commission for the City of Atlantic Beach approved Ordinance 33-17-23 which provides for the appearance of a Charter Amendment on the next ballot to move the City’s elections…

By: Emily G. Pierce On November 13 th , the new Commissioners for the City of Atlantic Beach were administered the Oath of Office and took their seats.  One of the first official actions taken by the new City…

By: Emily G. Pierce In 2016 the citizens of the State of Florida voted to legalize the use and prescription of medical marijuana to alleviate pain by those suffering from terminal, chronic, or debilitating medical conditions.  The…

By: Emily G. Pierce The Senate and House adopted legislation (SB 90/HB 1351) implementing Amendment 4 which had been approved by a supermajority of the voters in 2016.  Prior to the approval of Amendment 4, the Florida…

Pursuant to Chapter 2017-149 Laws of Florida, the Florida Legislature adopted numerous changes to the Florida Building Code.  Included within the changes is the addition of subsection 20 to Section 553.79, Florida Statutes.  The new subsection…

By: Trey Mills In an effort to protect small businesses, Governor Scott vetoed the highly controversial Senate Bill 106 on May 24th.  The bill would have eliminated the “liquor wall” law that requires physical separation between areas…

By: Emily G. Pierce Frustrated with the Legislature’s failure to fund Visit Florida and Enterprise Florida, two projects which the Governor sees as critical to the future of Florida, and following on the heels of his veto…

By: Emily G. Pierce On Friday, June 2, 2017, Governor Rick Scott signed an $83 billion state budget into law.  However, he also vetoed $410 million in education and special legislative projects which included over $15.5 million…

This afternoon, the Land Use and Zoning (“LUZ”) Committee will vote on legislation commonly referred to as the Glitch Bill.  The bill is the product of the workshops that were held prior to the LUZ Committee…

By William Michaelis On April 4, Senate Bill 996 was temporarily postponed by the Senate Judiciary Committee.  The bill provides for an award of attorney’s fees in certain circumstances when a development permit or other order is…

By William Michaelis This year will see the Constitutional Revision Commission (the “CRC”) convene for the first time since 1997, and for only the third time ever.  The CRC convenes every twenty years.  For those who are…

By Richard Q. Lewis, III With the passage of the Compassionate Medical Cannabis Act (§381.986, Florida Statutes) in 2014 and Amendment 2, the Florida Medical Marijuana Legalization Initiative, this past November, Florida is entering the realm of…

By William Michaelis As explained in earlier blog posts, per Section 252.363 of the Florida Statutes, the declaration of a state of emergency by the Governor tolls the period remaining to exercise rights under certain state and…

By William Michaelis As of today, Amendment 2, legalizing medical marijuana, is officially in effect.  The Department of Health now must promulgate rules to implement Amendment 2 within 6 months from today and implement those rules within…

By William Michaelis As explained in an earlier blog post, per Section 252.363 of the Florida Statutes, the declaration of a state of emergency by the Governor tolls the period remaining to exercise rights under certain permits…

By William Michaelis At tonight’s City Council meeting, the City of Jacksonville Beach has its second reading and a public hearing on an ordinance to declare a temporary moratorium on the operation of medical marijuana treatment centers…

By William Michaelis After the passing of Amendment 2 in Florida, many local governments are trying to get out ahead of medical marijuana dispensaries and treatment facilities by enacting temporary moratoriums or zoning ordinances in order to…

By William Michaelis Last week, Councilmen Love withdrew legislation to amend the Riverside/Avondale Zoning Overlay. The legislation was withdrawn after the community raised concerns over the initial drafts. If you are interested in where this will go…

By William Michaelis Today, the Land Use and Zoning Committee of the City of Jacksonville will take up the Planned Unit Development (“PUD”) and San Marco Overlay legislation introduced by Council Member Boyer. The PUD portion of the legislation…

By: William Michaelis Recently, legislation was introduced that would amend the Zoning Code by altering the requirements and the procedure for obtaining a rezoning to Planned Unit Development, or PUD. The proposed ordinance amends Sec. 656.340 , titled Planned…

By: William Michaelis At 5:00 p.m. on August 31, 2016, Governor Rick Scott issued a state of emergency for 42 counties because of Hurricane Hermine. If you have a project that is subject to permitting requirements, this…

By Courtney Gaver In a case that will have a direct impact on creditors, the U.S. Supreme Court has agreed to hear an appeal involving the City of Miami’s claims in three related cases that it suffered…

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…

By Timothy D. Hedrick In Florida, a plaintiff seeking to foreclose a mortgage must have “standing” to foreclose the mortgage as of the date it files its foreclosure complaint.[1] That is, if the plaintiff is not the…

In a win for creditors, the Supreme Court of the United States has taken an expansive view of the type of fraud that will prevent a debtor from discharging his debts in bankruptcy. The Court’s decision…

A purchaser of real property may be subject to liability for taxes, including sales taxes, owed by the Seller to the Florida Department of Revenue (“DOR”). Title insurance does not protect against this liability. Under F.S.…

By: Edward L. Kelly   Many settlement agreements contain mutual releases by the parties of claims against each other.  For institutional lenders, workouts of defaulted loans often result in the execution of such agreements by the parties. …

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…

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…

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…

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…

By Edward L. Kelly 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…

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…

For those involved in high-dollar residential real estate transactions, two new Geographic Targeting Orders (“GTOs”) issued by the Financial Crimes Enforcement Network (“FinCEN”) of the U.S. Department of the Treasury may affect your transaction. Concerned about…

By Janet C. Owens In previous posts , we have set forth explanations of the business records exception to the hearsay rule of evidence, and how that exception applies when a successor note holder seeks to introduce the loan…

Just when you thought it was safe to bring a foreclosure lawsuit, a recent Second District Court of Appeal opinion illustrates the harsh result of lack of standing. As you recall from prior blog articles, “standing”…

The Federal District Court for the Middle District of Florida ruled last month that a lender does not need to show cause as a condition to enforcing an assignment of rents. In PNC Bank v. Maranatha…

With the real estate markets in large cities such as San Francisco, Washington, D.C. and New York City saturated with domestic and foreign capital, driving market prices beyond the reach of many developers and lenders, investors…

By Adam B. Brandon To establish standing to enforce a promissory note, a lender must prove that it is the rightful holder of the negotiable instrument. Typically, this entails producing the original note together with all allonges…

As someone interested in both real estate development and finance, I follow John Anderson’s musings at RJOHNTHEBAD . John is a developer and leader of the Incremental Development Alliance , and often teaches at Small Developer Boot Camps promoted by the Congress for…

By Janet C. Owens Florida courts continue to grapple with various issues related to the statute of limitations for installment loans and whether a previously dismissed foreclosure action bars suit on subsequent defaults. As we have previously discussed ,…

Periodically the world of synthetic hedge arrangements collides with that of commercial lending in a way that provides interesting results. I was recently surveying some case law involving this very topic and came across Blue Bonnet Hotel…

By Timothy D. Hedrick and Mark S. Mitchell On December 9, 2015, Florida’s Fourth District Court of Appeal issued an opinion hurting a borrower’s ability to claim a lender orally agreed to modify the borrower’s obligations. In OCWEN Loan Servicing,…

By Timothy D. Hedrick and Mark S. Mitchell In August 2013, we discussed the requirements for enforcing a lost promissory note . The same year, the Florida legislature passed Section 702.015, Florida Statutes, requiring that the holder of a promissory note…

We are all aware of the basic premise that one must own real property in order to mortgage it.  However, what happens in a case where the mortgage is signed and delivered a few days before…

By Edward L. Kelly Rogers Towers, P.A. and the Florida Banking Law Blog have previously emphasized how provisions of Chapter 655 of the Florida Banking Code governing the creation and administration of checking and savings accounts in the names…

By Janet C. Owens In many residential mortgage foreclosures, paragraph 22 of the mortgage provides certain notice provisions with which a lender must comply before it can bring the foreclosure action. As we have previously posted , in 2014,…

By Adam B. Brandon On October 30, 2015, the Securities and Exchange Commission (“SEC”) adopted final crowdfunding rules to implement Title III of the bipartisan Jumpstart Our Business Startups Act (“JOBS Act”). An alternative to traditional financing,…

By Timothy D. Hedrick and Mark S. Mitchell The Fair Debt Collection Practices Act (the “FDCPA”), codified at 15 U.S.C. §§ 1692–1692p, is a consumer protection statute intended to curtail false, deceptive, or unfair debt collection practices. The FDCPA…

Commercial loan structures frequently call for either landlord lien waivers or tenant subordination agreements. In a situation where the collateral is real property that is already subject to a leasehold interest, the proper document will be…

Trustees, creditors and other interested parties are responsible for reviewing a chapter 13 Debtor’s plan and schedules to determine whether the Debtor’s plan complies with the Bankruptcy Code. This point is illustrated in a recent case…

A receiver is a person or entity that has been charged with custodial responsibility for the property of others. One type of receivership that we saw quite a bit in the past decade involved the FDIC,…

By Edward L. Kelly The Florida Banking Law Blog has stressed that Florida courts are quick to render judgments in favor of borrowers in foreclosure actions based on lenders’ lack of standing. The Florida’s Fourth District Court…

Florida Documentary Stamp Tax in the amount of 35 cents per $100.00 (or fraction thereof) is payable on the principal amount financed under a written obligation to pay money that is made, delivered, sold, transferred or…

Chapter 20 is the colloquial term for the practice of filing for Chapter 13 bankruptcy on the heels of a Chapter 7 discharge. In re Whiting , the Middle District of Florida Bankruptcy Court held that a junior…

By Adam B. Brandon In a November 2014 post , this blog discussed how the Federal Deposit Insurance Corporation (“FDIC”) warned financial institutions they could be liable for facilitating illegal activities if their customers were involved in money laundering…

By Timothy D. Hedrick and Mark S. Mitchell Creditors and debtors should be aware of the lifespan of money judgments, as well as judgment liens on real and personal property. This blog is intended to address, under Florida law,…

In a tough opinion for creditors, the Ninth Circuit has ruled that “Chapter 20” debtors can still take advantage of lien stripping, the bankruptcy tool that effectively bars wholly unsecured junior lien holders from foreclosing on…

October is here and so are the new TILA-RESPA Integrated Disclosure rules or TRID, for short. One aspect of the new rules is the disclosure of title insurance premiums in consumer real estate transactions. The new…

By: Emily G. Pierce As discussed in my July 29 th blog , the Legislature adopted some significant changes to Florida’s Growth Management Laws during the regular 2015 session. The changes made to the Bert J. Harris Private Property Rights Act…

Under many loan documents, lenders will have the right to appoint a receiver in the event of a default under the loan. In such circumstances, a receiver may be needed to take charge of the property…

By Edward L. Kelly Banks that meet the statutory definition of “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”) are prohibited from engaging in abusive consumer debt collection practices. Excluded from the debt collector classification…

Leases can be complex commercial contracts. When a lender is reviewing a loan, the reviewer should keep in mind that the review is not only for things that may affect a borrower’s ability to pay the…

By Janet C. Owens Despite indications from the Federal Reserve in as early as March that rates would be raised in 2015, the window for the Fed to hike interest rates this year is quickly closing. The…

Creditors take note; the Southern District of Florida Bankruptcy Court recently revised procedures for its Mortgage Modification Mediation Program. The new changes relate to individual debtors who are unable to settle at mediation with the lender…

By Adam B. Brandon         As detailed in a previous post , the Servicemembers Civil Relief Act of 2003 (SCRA) protects members of the Army, Navy, Air Force, Marine Corps, and Coast Guard whose financial obligations…

The ECOA has been the topic of numerous posts on this blog. It is the law which makes it illegal for a creditor to discriminate against a credit applicant on the basis of, among other factors, the applicant’s…

By Edward L. Kelly An equitable lien may provide a Florida creditor relief in scenarios where Florida’s broad homestead protections would otherwise bar the forced sale of homestead property. But a string of cases following the 1993…

By Scott J. Kennelly and Janet C. Owens While lenders frequently prevail at foreclosure trials, there are certainly occasions where they do not. In those instances, is the lender precluded from pursuing a subsequent foreclosure action by the doctrine…

We all have too many friends who leave their offices late in the evening the day before or the day of a closing. They miss time with their kids, cocktail hours, dinner, daylight… and still the…

Florida is a state with plenty of agribusiness and lenders frequently consider commercial loans to growers of farm products with the products themselves as collateral. Farm products are not “goods” under the UCC definition and they…

As mentioned in previous posts, filing an involuntary bankruptcy petition could subject a petitioning creditor to extensive attorneys’ fees and costs. In the final installment of the “Involuntary Bankruptcy 101” series, this post reviews a recent…

By Mark S. Mitchell and Timothy D. Hedrick Through the economic turmoil of the late 2000s, borrowers came up with creative (and at times, inequitable) ways to protect their investments. One such method—the borrower’s indirectly purchasing and foreclosing a…

By Adam B. Brandon On July 22, 2015, the Department of Defense (DOD) issued its final rule implementing the Military Lending Act (MLA).  Enacted in 2006, the MLA seeks to protect active-duty military members and their dependents…

Securities claims subject to arbitration proceedings are subject to the same statute of limitations as any other judicial action. In holding that section 95.011, Florida Statutes, applies to arbitration proceedings, the Florida Supreme Court effectively cut…

In the right circumstances, creditors can utilize involuntary bankruptcy a tool for collecting on its debts. This post addresses the process a creditor must follow after filing an involuntary petition under chapter 7 or 11 of…

By Irvin Weinstein Florida law has permitted the creation of community development districts or “CDDs” since 1980. According to the Florida Department of Economic Opportunity there are presently 593 active community development districts that have been established…

By Adam B. Brandon On July 24, 2015, a federal court cleared the way for a small Texas bank to challenge the constitutionally of the Consumer Financial Protection Bureau (“CFPB”).  In State National Bank of Big Spring, et…

Deficiency actions arising under a mortgage note secured by Florida real estate used for personal, family or household purposes are subject to many of the same consumer protection regulations as other consumer debt. Last April, in…

By Scott J. Kennelly and Janet C. Owens FDUTPA is the primary consumer protection statute in Florida, prohibiting unfair, unconscionable, or deceptive methods of competition, practices, or acts in the conduct of commerce. According to the express terms of…

Involuntary bankruptcy can be a useful tool for creditors.  Filing an involuntary bankruptcy petition against a debtor can help actualize the value of a debtor’s assets. The following are some basic requirements when considering filing an…

It’s official – TRID will take effect on October 3, 2015. As we have previously discussed , ever since the Dodd-Frank Act mandated new, regime-changing, mortgage disclosures, the banking industry has been diligently preparing for the day that…

By: Emily G. Pierce   On May 14, 2015, the Governor signed into law legislation which includes significant changes to Florida’s growth management laws. The legislation includes provisions which: Eliminate the Developments of Regional Impact (DRI) review…

By Edward L. Kelly Parties claiming a violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq. , need not prove intentional discrimination to prevail, according to a recent ruling handed down by the United States…

By Edward L. Kelly When a State or local government law, regulation or ordinance in Florida decreases the value of the land at which it is directed, the affected landowner can invoke the Bert J. Harris, Jr.,…

By Scott J. Kennelly and Janet C. Owens Jury trial waiver provisions are likely unnecessary for foreclosure actions. It is well-settled under Florida law that mortgage foreclosures are actions in equity, and therefore do not entitle a party to…

By Timothy D. Hedrick and Mark S. Mitchell Obtaining a judgment against a borrower is only the first step in realizing collection on account of a defaulted debt. Assuming the borrower is unwilling to pay the debt in full…

Lenders in Florida should note a new statutory protection for residential tenants in foreclosed homes that may delay a lender’s ability to take possession after a foreclosure sale. On June 2, 2015, Governor Rick Scott signed…

Florida’s Fourth District Court of Appeals has paved the way for individuals and businesses to bring claims for violations under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). FDUTPA is the primary consumer protection statute…

By Janet C. Owens As we have previously discussed , the Supreme Court held in Stern v. Marshall that Congress did not have the authority under the Constitution to empower bankruptcy judges to decide legal claims that are based entirely on…

St. Johns County has proposed a series of amendments to the Land Development Code. The County will be holding a public workshop on July 7, 2015 at 3:00 p.m. in the first floor conference room of the…

The City Council recently approved a number of changes to the Zoning Code. These include: Ordinance 2015-250-E which clarified and revised the off-street parking requirements for restaurants. The previous language required one space for each four…

By Adam B. Brandon   The U.S. Constitution requires that each state give “full faith and credit” to judgments of other states. Consistent with this mandate, the Florida Enforcement of Foreign Judgments Act provides a process for…

Florida 1st DCA Distinguishes Between Amending a Final Judgment under Florida Rule of Civil Procedure 1.540(a) and 1.540(b) as to Mistakes In Lorant v. Whitney National Bank , decided February 24, 2015, Florida’s First District Court of Appeal…

By Edward L. Kelly The Supreme Court has agreed to address a split between circuits that emerged last summer centering on whether the Equal Credit Opportunity Act (the “ECOA”) permits financial institutions to require the spouse of a loan…

The banking industry has spent the last two years preparing for the Consumer Protection Financial Bureau’s implementation of the Truth-in-Lending Act (TILA)/Real Estate Settlement Procedures Act (RESPA) Integrated Mortgage Disclosures Rule – referred to by the…

“Deepening Insolvency” is a developing theory of law in cases brought by bankruptcy trustees, litigation trust trustees, receivers, reorganized debtors, or some other plaintiff “standing in the shoes” of an insolvent company. Essentially, the deepening insolvency…

By Scott J. Kennelly and Janet C. Owens One of the most critical aspects in any litigation is to ensure that court deadlines are met for all court filings. Florida Rule of Judicial Administration 2.514 is the primary rule…

The U.S. Supreme Court has resolved a circuit split by answering the question; what happens to post-petition wages held by a Chapter 13 trustee at the time a case is converted from Chapter 13 to a…

In Bank of New York v. Calloway , a decision that should prove beneficial to lenders and servicers, Florida’s Fourth District Court of Appeal offered to “shed some light” on “confusion among litigants and jurists” about…

In residential foreclosures, a notice of default letter, commonly found in paragraph 22 of most mortgages is a condition precedent to acceleration of the amount owed under the note and mortgage. Those familiar with residential mortgage…

By Timothy D. Hedrick and Mark S. Mitchell Questions sometimes arise from creditors regarding the effect of a debtor sending to a bank or other creditor a check for less than the creditor’s claim that purports to be in…

By Adam B. Brandon Under Rule 1.370, Florida Rules of Civil Procedure, a party may serve a written request that another party admit certain facts to be true. If the party served with the request fails to…

Earlier this month, Florida’s Fourth District Court of Appeal released an opinion seemingly designed to serve as a primer on perfecting a security interest in a promissory note secured by a mortgage. The analysis is found…

By: Edward L. Kelly Your client, an individual, walks into Friendly Bank and presents for payment a check in the amount of $100.00, drawn on Friendly Bank and payable to the order of your client. The bank…

By: Scott J. Kennelly and Jacy C. Owens Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony…

As the old saying goes, there are two certainties in life: death and taxes.  For commercial real estate owners and developers, the latter is an inevitability that may be mitigated.  Each August, Florida property tax appraisers…

The Equal Credit Opportunity Act (the “ECOA”) prohibits creditors from discriminating against credit applicants based on race, religion, sex, national origin, marital status, and age among other things.  Penalties for violations of the ECOA were discussed…

By: Edward L. Kelly Cash proceeds obtained from the sale of a homestead property receive protection from creditors’ claims, provided the funds are not commingled with other assets and are intended in good faith to be reinvested…

By: Adam B. Brandon The Servicemembers Civil Relief Act of 2003 (SCRA) protects members of the Army, Navy, Air Force, Marine Corps, and Coast Guard whose financial obligations and ability to participate in civil proceedings are materially…

By: Scott Padgett You’ve completed your work, payment is past due and you’re ready to record a construction lien . . . then you discover your client is a tenant, not an owner.  Your ability to lien…

By Scott J. Kennelly and Janet C. Owens We have written multiple blogs about standing to foreclose , but a new spate of recent cases out of Florida’s Fourth District Court of Appeals demonstrate that lenders still struggle with the issue…

By: Adam B. Brandon The Truth in Lending Act (“TILA”) requires lenders to make certain disclosures to borrowers before the parties close on a residential mortgage.  TILA also affords borrowers the right to rescind a mortgage for…

A recent Eleventh Circuit case examines equity shareholders’ role (or lack thereof) in a reorganized entity.  Vision-Park Properties owned an equity share of Seaside Engineering & Surveying, Inc.  Seaside filed for Chapter 11 protection in 2011,…

By: Gabriel Grafton According to Florida law, the prevailing party in a suit brought to enforce a lien or claim against a bond is entitled to recover reasonable fees for the services of an attorney used for…

Commercial Mortgage-Backed Securities (CMBS) loans are on the rise and many familiar with the market are concerned with the relaxed underwriting standards.  Interestingly, looser underwriting standards and increased loan volume are not the only issues.  Lenders…

By Scott J. Kennelly and Janet C. Owens We have previously posted about some of the protections available under FIRREA to the FDIC as Receiver of a failed bank, including the FDIC’s power to enforce contracts of the failed bank under 12 U.S.C.…

By: Edward L. Kelly Including an accurate legal description (known as the “legal”) in a mortgage is of utmost importance to lenders; in the event of foreclosure, a purchaser (often the lender) cannot obtain clear title to…

Investing in commercial real estate is a pipe dream for all but the highest net worth individuals.  However, in July of last year, the Hard Rock Hotel in Palm Springs defied conventional real estate logic and…

A few days ago, the popular television program “60 Minutes” aired a story about a national flooring retailer selling Chinese-manufactured laminate flooring that contains extremely high levels of the cancer-causing chemical formaldehyde.  The report detailed the…

As we discussed in our previous post, in the wake of the financial crisis that began with large financial institutions failing in 2008, practitioners and politicians alike have been calling for Bankruptcy Code reform.  Both the…

By: Adam B. Brandon Florida’s Fifth District Court of Appeal recently filed an opinion that emphasizes the importance of properly authenticating evidence in support of a motion for summary judgment.  In Colon v. JP Morgan Chase Bank, N.A.…

In the latest chapter of “lien stripping,” the Honorable Judge Erik P. Kimball of the Southern District of Florida, Bankruptcy Court, recently grappled with the issue of whether a debtor can strip a completely unsecured junior…

As previously discussed on this blog, the Equal Credit Opportunity Act (the “ECOA”) prohibits creditors from discriminating against credit applicants based on race, religion, sex, national origin, marital status, and age among other things. But what happens when…

Recently, in Montreaux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., _ So. 3d _, 2014 WL 7183213 (Fla. 1st DCA Dec. 18, 2014), Florida’s First District Court of Appeal followed the Third District in…

New legislation may soon create a separate structural engineering license in the State of Florida.  The move toward structural licensure is well underway due to House Bill 217 and Senate Bill 338 .  Under the proposed legislation, structural engineering is…

By: Edward L. Kelly The doctrine of subrogation enables a party discharging another’s debt to step into the shoes of the creditor who held the discharged debt.  Subrogation plays a significant role in the mortgage context, as…

On January 22, 2015, Representative Jay Fant introduced House Bill 501 , a bill aimed at reducing the current statute of repose for construction-related claims from 10 years to 7 years.  Florida’s statute of limitations and statute of…

By: Scott J. Kennelly and Jacy Owens Although typically foreclosure actions are brought in state court, lenders may occasionally find themselves pursuing foreclosure in federal court. Although the costs and procedures for conducting the foreclosure sale are basically consistent…

Does your private company contract with government agencies?  If so, your company may have records that must be disclosed to the public under Florida’s Public Records Law. Florida’s Public Records Law can be found in Chapter…

By: Adam B. Brandon Florida’s Third District Court of Appeal recently filed an opinion that illuminates when a lender’s acceleration of debt triggers the five-year statute of limitations.  In Snow v. Wells Fargo Bank, N.A. , 2015 WL 160326…

Florida Statute § 718.116(1)(b) limits a foreclosing first mortgagee’s liability for past due condominium assessments by providing that liability will be the lesser of twelve months of past due assessments or one percent of the original…

On Monday, December 8, 2014, the American Bankruptcy Institute’s Chapter 11 Reform Commission, which is tasked with recommending reforms to the nearly 40-year-old bankruptcy regime, released a report which found that the current Chapter 11 system…

The Second District Court of Appeal recently reversed a jury verdict that awarded a contractor nearly $300,000 after determining that the amount had already been paid by another entity.  The dispute in Tern Bay Community Development District…

On January 1, 2015, United States District Judge Hinkle issued an Order ruling that all Florida counties are to start issuing marriage licenses to same-sex couples as of January 6, 2015. The implications of this ruling are significant…

In Florida, it is well settled that a Chapter 7 debtor who does not claim or receive the benefit of the homestead exemption on his bankruptcy schedules is entitled to claim the “wildcard” exemption pursuant to…

In a recent opinion, the Fourth District Court of Appeal appears to have expanded the Slavin doctrine in the context of design professional liability.  In McIntosh v. Progressive Design and Engineering, Inc. (Jan. 7, 2015) , the plaintiff’s father was killed in…

Foreclosing mortgagees often wait until after a foreclosure judgment and certificate of title are issued to determine the extent of liability to a homeowners or condominium association for past due assessments.  But what if there is…

On December 9, 2014, Florida Representative Kathleen Passidomo introduced House Bill 87, a bill aimed at amending Florida’s Construction Defect Statute.  The bill contains several changes which could have a significant impact on construction defect claims…

By: Scott J. Kennelly and Jacy C. Owens When an institution acquires a failed bank from the FDIC as Receiver and then faces litigation arising from the failed bank’s loans, FDIC “special powers” can often be asserted by the institution, as assignee…

By: Edward L. Kelly While failure to pay Florida’s documentary stamp taxes on a promissory note or mortgage can subject the offender to criminal and financial sanctions, the state’s courts of appeal are split when it comes…

For those of you who have followed our blog since its inception, you will know that one of our most discussed opinions is that of In re McNeal , in which the Eleventh Circuit held that a debtor…

By: E. Carson Lange When preparing or negotiating the terms of construction contracts, parties often indicate where any dispute that may arise between the parties must be litigated.  Courts will generally enforce such “venue” or “forum selection”…

By: Adam B. Brandon In special assets litigation, a bank offers into evidence its own loan records as well as the records of other lenders who previously serviced the loan.  However, Florida courts treat these records as…

Who would have imagined that a dismissal with prejudice would be better for a lender than a dismissal without prejudice? It is counterintuitive to say the least, but when it comes to the application of the statute of limitations defense…

If your company has ever been sued, then you know how important it is to have qualified and experienced counsel handling your case. Besides experience and qualifications, knowledge of your industry and your company can be…

By: Scott J. Kennelly and Jacy Owens Following a foreclosure sale, a lender may seek to obtain a deficiency judgment against the borrower and guarantors for the difference between the amount of the debt (as listed in the foreclosure…

By: E. Carson Lange A decision issued by the Florida Supreme Court earlier this year significantly limits the protection afforded by the statute of limitations to subcontractors and the like that are brought into construction litigation as…

By: Edward L. Kelly and Karl R. Gruss In a previous article, we provided an overview of the basic procedures judgment creditors must follow when serving writs of garnishment on banks and the obligations of financial institutions that are…

By: Adam B. Brandon As part of a coordinated, multi-agency initiative known as “Operation Choke Point,” the Federal Deposit Insurance Corporation (FDIC) has warned financial institutions that they might be liable for maintaining banking relationships with certain…

By: Sherri L. Worman Sophisticated parties in large projects know that it is not unusual for claims of all types to occur during the course of the project. Despite everyone’s best efforts, claims for property damage, material…

By: Armando Nozzolillo and Michael S. Waskiewicz Garnishments are one of the most effective tools at a creditor’s disposal for collection purposes. The rules and requirements for initiating a garnishment action are laid out in Chapter…

By Scott J. Kennelly and Janet C. Owens When a lender “willfully” charges interest in excess of statutory limits, civil usury penalties may apply. However, Florida’s usury statutes provide for two exceptions to the application of civil usury penalties. The first…

By: Amanda Parker Baggett The Slavin Doctrine has been on the books for more than fifty years and is a favorite defense used by contractors, architects and engineers defending against personal injury and wrongful death claims. Generally, the Slavin doctrine absolves…

By: Edward L. Kelly and Karl R. Gruss Writs of garnishment provide judgment creditors (i.e., the party in whose favor the judgment was entered) access to money that belongs to debtors but is possessed or controlled by third parties,…

By: Amanda Parker Baggett Design-build firms are not required to hold a contractor’s license in Florida. They’re also not required to have an engineer’s license. Architect’s license? Nope, they don’t have to hold that one either. But,…

By: Edward L. Kelly and Karl R. Gruss Florida law recognizes, and most banks offer, multiple forms of account designation to meet the desires and needs of individual customers. Keep in mind, however, that the standard demand deposit account…

By: Jon Sacks and Heather S. Nason When a closely-held entity applies for a loan, the financial institution usually requires the entity’s owner(s) to guaranty the loan. If the owner is married, the financial institution may also require the…

By Scott J. Kennelly and Scott St. Amand The advent of social media has brought about many changes in the world of litigation, not the least of which is the availability of information that previously would have been impossible…

By: J. Ellsworth Summers and Scott St. Amand As we mentioned in our previous posts regarding document preservation, establishing a written document retention and destruction policy is essential to any company, large or small. As with the Pradaxa case out of…

By: Adam B. Brandon In addition to ensuring compliance with the federal Fair Debt Collection Practices Act (FDCPA), lenders should take precautions to limit its exposure to claims under the Florida Consumer Collection Practices Act (FCCPA). For example, lenders…

By: Armando Nozzolillo and Michael S. Waskiewicz In the last 2 years, three judges of the Middle District of Florida (Judges Funk, Delano and Williamson) have each issued opinions finding 11 U.S.C. § 707(b)(2) inapplicable in…

By: Douglas L. Waldorf The Florida Bar News, in its September 15, 2014 edition, reported that Florida foreclosure volume has declined with the number of filings in the first half of 2014 about 50% of filings for…

By: Scott J. Kennelly and Janet C. Owens There are two “tiers” of penalties for violation of the Florida usury statutes, one civil and the other criminal, and both are severe. Civil penalties usually involve forfeiture of the entire…

By: Samantha Alves Orender In a previous post , we considered whether guarantors are considered to be “applicants” under the Equal Credit Opportunity Act (the “ECOA”), and today, we will consider whether assignees who acquire debt would be subject…

By: Karl R. Gruss and Edward L. Kelly Florida’s homestead exemption protects a married couple’s primary residence from forced sale to satisfy a judgment lien, but what happens when spouses retain two properties as their individual primary residences, claiming…

In April of 2010, the Office of the Comptroller of the Currency closed First National Bank Myrtle Beach, S.C., a wholly-owned subsidiary of Beach First National Bancshares, a bank holding company, and named the FDIC as…

By: Heather S. Nason and Jonathan Sacks To avoid foreclosure, a borrower might agree to execute a deed in lieu of foreclosure to be held in escrow. In these circumstances, the borrower would execute a deed-in-lieu of foreclosure to…

By J. Ellsworth Summers, Jr. and Scott St. Amand In Detroit’s ongoing restructuring effort, the city cleared a major hurdle last week by settling with its largest adversary, Syncora Guarantee, a New York based bond insurer.…

By: Douglas L. Waldorf In July, the 2d DCA overturned a bank’s summary judgment on the grounds that the bank failed to rebut the defense of lack of standing. The frequency and similarity of these cases makes…

By: Adam B. Brandon As discussed in a prior post , the Florida Consumer Collection Practices Act (FCCPA) can apply to both debt collectors (like collection agencies) and lenders who seek to collect their own debts. The FCCPA is…

By: Armando Nozzolillo and Michael S. Waskiewicz Recently, the Eleventh Circuit Court of Appeals (the “Court”) ruled whether filing a proof of claim in a chapter 13 bankruptcy case after the statute of limitations on the ability…

By Samantha Alves Orender We have discussed the Equal Credit Opportunity Act (“ECOA”), which makes it unlawful for a creditor to discriminate against an applicant in any aspect of a credit transaction on the basis of, among other things,…

By Janet C. Owens and Scott J. Kennelly Because intent is a key element of usury , a lender may be able to successfully defend against a claim of usury if it can demonstrate that the interest was demanded, or in…

By: Adam B. Brandon The Florida Consumer Collection Practices Act (“FCCPA”) prohibits anyone attempting to collect a debt from using certain types of abusive, deceptive, and misleading tactics. In a recent decision, Florida’s Second District Court of…

By J. Ellsworth Summers, Jr. and Scott St. Amand In numerous previous posts, we have noted that the purpose of the Bankruptcy Code is to help the “honest but unfortunate debtor.” Like gerrymandering, certain “creative” debtors…

Legal standing to foreclose a note and mortgage continues to be an issue that frustrates plaintiffs and delights defense counsel. Florida courts have consistently held that standing must exist when the lawsuit is filed and the…

Commercial mortgage lenders of non-owner occupied property need to be adept at reviewing leases to protect themselves from risk. Although the rent roll is a useful tool, some lenders learned during the economic downturn that it…

By Scott J. Kennelly and Janet C. Owens When borrowers default under the terms of their loans, lenders often, in accordance with the loan documents, can assess late fees against the borrower. When lenders assess late fees around the…

By Scott St. Amand and J. Ellsworth Summers, Jr. Twenty-seven years ago the Second Circuit was faced with a debtor who proposed to use the Bankruptcy Code to avoid her student loan debt – only five…

By: Scott St. Amand Although a suit against a particular officer of a corporation for sexual harassment would clearly trigger a litigation hold, what must counsel do about less obvious players in a more abstract dispute? The…

By Scott St. Amand and J. Ellsworth Summers, Jr. On Friday July 25, 2014, the City of Detroit released a revised restructuring plan that provides for a reserve fund that may enhance the recovery for certain classes of unsecured…

By: Adam B. Brandon On June 23, 2014, the U.S. Supreme Court issued its decision in Laughlin v. United States which defined what type of fraudulent activity is punishable under the federal bank fraud statute. Posing as a Mormon…

By: Douglas L. Waldorf, Jr. There have been several articles posted on this blog on the subject of standing – the legal right to enforce a promissory note and/or mortgage. This continues to be a popular issue…

By: Heather S. Nason The hotel industry appears to be on an uptick, which is good news for lenders. Hotel construction in May 2014 is up over 13% from the same time period in 2013 . Moreover, record high…

By: Gabriel Crafton and Scott St. Amand As we discussed in our previous post regarding the Christou case , social media is discoverable – and consequently subject to a litigation hold. From an evidentiary standpoint, social media is not without its shortcomings, and…

By: J. Ellsworth Summers and Scott St. Amand Earlier this month the Sixth Circuit Court of Appeals ruled that the appeal of Syncora Guarantee Inc. must be heard by the lower federal district court before the bankruptcy court may…

By: Samantha Alves Orender The Equal Credit Opportunity Act (“ECOA”) was signed into law by Congress in 1974. This law makes it unlawful for a creditor to discriminate against an applicant in any aspect of a credit…

By: Armando Nozzolillo and Mike Waskiewicz A recent case out of the Eleventh Circuit Court of Appeals (the “Court”) concluded that proceeds stemming from a post-confirmation settlement agreement between a chapter 13 debtor and its mortgagor related to a…

By: J. Ellsworth Summers and Scott St. Amand When the Fourth Circuit handed down its opinion in the case of In re Davis , [1] which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Often referred to as the “holy grail” of bankruptcy law, a bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. Because of the sweeping relief,…

By: Douglas L. Waldorf, Jr. Banks are, once again, making real estate secured loans in Florida. Those in the industry will undoubtedly be aware of the fact that most lenders require a mortgagee title insurance policy to…

By: J. Ellsworth Summers and Scott St. Amand For numerous corporate Chapter 11 debtors, the sale of some or all of the company’s assets may be the only way to reorganize the company’s debt. Section 363 of the Bankruptcy…

By: Heather S. Nason The Florida Second District Court of Appeals recently ruled on yet another challenge to a note holder’s standing to foreclose based on lack of ownership of the mortgage. In OneWest Bank, F.S.B. v. Bauer (May…

By: J. Ellsworth Summers and Scott St. Amand Not even Nostradamus could have predicted the profound effect that former Playmate Vickie Lynn Marshall (a/k/a Anna Nicole Smith) would have on the landscape of U.S. bankruptcy court jurisdiction. Nevertheless, two…

By Scott J. Kennelly and Adam B. Brandon As previously discussed on this blog, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process for claims against the assets of failed financial institutions. If a party…

By: J. Ellsworth Summers and Scott St. Amand On Tuesday, June 2, 2014, the Michigan state senate passed a number of important bills, all of which are aimed to help lift Detroit out of its $18 billion bankruptcy. Approval…

By J. Ellsworth Summers, Jr. and Scott St. Amand Over the Memorial Day weekend, while many around the country were enjoying beautiful weather, the lawyers for the city of Detroit were busy filing a lengthy defense to their proposed…

By: Samantha Alves Orender and M. Scott Thomas When a bank assigns a mortgage to another bank, the assignor typically provides a loan payment history to the assignee as part of the transfer. If the assignee later brings suit…

By: Armando Nozzolillo and Michael S. Waskiewicz Ordinarily, when a debtor files a chapter 13 bankruptcy petition, the automatic stay is triggered immediately. The stay prohibits lenders from pursuing any claim against the debtor unless they seek and are…

By: J. Ellsworth Summers and Scott St. Amand As we have discussed in previous posts, when a plaintiff or defendant in a pending civil lawsuit files for bankruptcy, the suit becomes part of the bankruptcy estate. Further, under §…

By: Adam B. Brandon Previous posts discussed how the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) creates a mandatory administrative claims process for claims against the assets of failed financial institutions. If a party with a claim against…

By: Douglas L. Waldorf, Jr. One of the threshold issues to consider in loan transactions is determining who is authorized to sign the loan documents on behalf of entity borrowers. This is important not only in cases…

By: Scott J. Kennelly and Jacy Owens In the midst of litigation, the lender and the borrower often reach a settlement and execute a settlement agreement.  Sometimes, the settlement agreement calls for the immediate resolution of the lawsuit, so…

By: J. Ellsworth Summers and Scott St. Amand The automatic stay of § 362(a) of the Bankruptcy Code is one of a debtor’s most powerful tools and protections, because it stays all proceedings and collection efforts. Under § 362(b),…

By: E. Carson Lange and Gabriel Crafton In a prior post , we discussed a grantor’s continuing liability under a promissory note that is renewed without his notice or consent where the guaranty is a continuing guaranty, meaning it contemplates revisions…

By: Douglas L. Waldorf, Jr. The legal right to enforce, by judicial proceeding, a promissory note and mortgage is referred to as “standing”. This has been a hot topic in Florida foreclosure cases with courts holding that…

By: Adam B. Brandon Florida’s Fifth District Court of Appeal recently emphasized the need for lenders to strictly comply with the notice requirements of a mortgage prior to foreclosure. In Samaroo v. Wells Fargo , the borrower appealed…

By: Douglas L. Waldorf, Jr. I receive frequent inquiries from bank clients who are concerned because their mortgage borrower has requested permission to transfer the collateral real property to another entity. These requests commonly are made for…

By: J. Ellsworth Summers, Jr. & Armando Nozzolillo On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of…

By: Scott J. Kennelly & Adam B. Brandon As described in a previous post , the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) requires that anyone with a claim against a failed bank must file a claim…

By: Scott J. Kennelly & Adam B. Brandon Enacted by Congress after the Savings and Loan Crisis of the 1980s, the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) gives the FDIC sweeping authority to resolve the problems posed…

By: Samantha Orender & M. Scott Thomas If the value of a foreclosed property is less than the loan amount, lenders may seek a deficiency judgment from borrowers and guarantors after the foreclosure sale. In most cases, the lender…

By: E. Carson Lange & Gabriel Crafton Promissory notes are often renewed and extended without the express written consent of, or even notice to, the guarantors of the note. A guarantor, faced with changing circumstances and…

By: J. Ellsworth Summers, Jr. & Armando Nozzolillo It is well-settled that secured creditors are ordinarily entitled to credit bid their allowed secured claim in a sale pursuant to § 363 of the Bankruptcy Code (the “Code”). In Radlax Gateway…

By: Gabriel Crafton & Scott St. Amand In the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course…

By: Scott St. Amand Under the Chapter 9 Plan of Adjustment filed on Friday of last week, Detroit Emergency Manager Kevyn Orr urged retirees to vote on a quick exit from bankruptcy by offering smaller-than-expected pension cuts.…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Of the three most common chapters of the Bankruptcy Code, Chapter 7 offers an insolvent individual the freshest of starts; yet it is not without its pitfalls. Under Chapter 7…

By: Scott J. Kennelly & Jacy C. Owens In previous posts, we have given an overview of judgment liens , including what must be included in the underlying judgment, and have described how to obtain judgment liens on real property and personal property . If…

By: J. Ellsworth Summers, Jr. and Scott St. Amand A recent case out of the 9 th Circuit, In re Dale , revives a controversial subject for Chapter 13 debtors: whether an inheritance received more than 180 days after commencement of the case…

By: J. Ellsworth Summers, Jr. & Armando Nozzolillo In order to confirm a chapter 11 plan of reorganization, a debtor must satisfy all the provisions of §1129(a) of the Bankruptcy Code, except for §1129(a)(8). Section (a)(8) requires that each class of creditors either…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Google has come under scrutiny in the last few years over collecting information from users’ email accounts to provide targeted advertising for its paid clients. In a 2013 case filed…

By: J. Ellsworth Summers, Jr. & Scott St. Amand In 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued five landmark decisions, which have since shaped the landscape of electronic discovery…

By: E. Carson Lange A previous post discussed the non-judicial foreclosure procedure used in Georgia. This post discusses the steps that a Florida bank doing business in Georgia, or with clients owning property in Georgia, must take to obtain…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As we discussed in our previous spoliation post , parties are required to place a litigation hold on all documents once litigation could be reasonably anticipated. Although there are certain definite “trigger…

By: Douglas L. Waldorf, Jr. Recently, The Wall Street Journal published an editorial discussing the status of mortgage foreclosure litigation. The purpose of the article was to extol the alleged benefits of non-judicial foreclosure over judicial foreclosure. Without getting…

By Jacob J. Payne & Scott St. Amand The Bankruptcy Code permits a trustee to avoid transfers of property that a debtor has made within two years prior to its bankruptcy filing. In 1998, Congress added a safe-harbor provision…

By: M. Scott Thomas & Scott St. Amand Insurance and financial institutions understand the importance of data preservation, but from time to time – usually in the throes of complex litigation – the specific requirements of federal and state…

By: J. Ellsworth Summers, Jr. & Scott St. Amand “Standing” is a legal term of art that refers to a party’s ability to bring a cause of action, to intercede in one or to appeal the court’s judgment. To…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Yesterday Bankruptcy Judge Steven Rhodes ruled that the appeals to his earlier holding that Detroit was entitled to proceed in its Chapter 9 Bankruptcy proceeding would be allowed to bypass…

By: Jacob J. Payne & Scott St. Amand Some of you who read the title of this post may have done a quick double-take, as it is well established that lenders may not collect a deficiency on a nonrecourse…

By: J. Ellsworth Summers, Jr. & Armando Nozzolillo The principle behind the absolute priority rule is simple: unsecured creditors should be paid before the debtor is entitled to retain property of the bankruptcy estate. In a corporate setting the…

By: Gabriel Crafton Mortgages are big business. When mortgages are assigned, however, the mortgagor often is a non-party to the assignment. Thus, within certain jurisdictions, mortgagors have historically lacked the requisite standing to challenge the validity…

By: J. Ellsworth Summers, Jr. & Scott At. Amand The oral summary of Bankruptcy Judge Steven Rhodes’s opinion lasted roughly ninety minutes, and the forthcoming written opinion is rumored to be over one hundred and forty pages in length.…

By: E. Carson Lange Given our geographic proximity, it is not uncommon for Florida banks to do business in Georgia or with clients owning property in Georgia. This geographic proximity, however, does not lend itself to equivalence…

By: Douglas L. Waldorf, Jr. On average, a Florida foreclosure can take nearly two years from service of process to final judgment. Lenders have little option but to suffer the costs of this delay in the form…

By: Samantha A. Orender & M. Scott Thomas Given the importance of the allonge in establishing a bank’s standing in commercial foreclosure cases, you may be surprised that the term “allonge” is nowhere to be found in Florida’s Commercial…

By: J. Ellsworth Summers, Jr. & Scott St. Amand A new study published by the American Bankruptcy Institute has found that the aggregate effect of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which was passed…

By: Adam B. Brandon You may be wondering why an article about the new Florida statute banning texting while driving is being featured on a banking law blog. Admittedly, texting does not have much to do…

It is well established that after a judgment of default, a creditor may serve a writ of garnishment upon the debtor’s employer to collect the unpaid principal and interest of the underlying loan from the employee’s…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Nearly a year ago to the day, we published a post regarding the uncertainty that bankruptcy practitioners and lenders faced when a Chapter 7 debtor received a discharge, and subsequently…

By: Douglas L. Waldorf, Jr. Following a monthly high volume of foreclosure filings from July 2008 to July 2010, there has been a significant decline in new cases through August of 2013. This information was provided…

By: Douglas L. Waldorf, Jr. In prior posts we examined several components of HB 87, the bill which became law in Florida this past summer.  In this post we will review a few more aspects of…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As most lenders and banking litigators understand, courts construe the language of the Fair Debt Collection Protection Act (FDCPA) very broadly. As we have discussed in previous posts, an initial…

By: Douglas L. Waldorf, Jr. The Florida Bar News, in its October 1, 2013 edition, published an article summarizing the status of Florida mortgage foreclosure cases. The current volume of cases is reportedly the lowest since 2006. In…

By: Scott J. Kennelly & Janet C. Owens Financial institutions seeking to challenge discovery relating to Loss-Share Agreements and payments from the FDIC should be able to do so on the grounds of relevance, as we previously discussed . A second…

By: Douglas L. Waldorf, Jr. This article is the final article of a series and is excerpted from my book entitled Mortgage Foreclosure and Loan Collection: A Practical Guide for Lenders which is now available at Amazon.com. Here, we…

By Scott J. Kennelly and Janet C. Owens There is a common misconception among borrowers that the application of Loss-Share Agreements may result in “windfalls” to institutions that acquire assets of failed banks from the FDIC. They reason that…

By: Douglas Waldorf, JD, MBA This article is the second of a series and is excerpted from my book entitled Mortgage Foreclosure and Loan Collection: A Practical Guide for Lenders which is now available at Amazon.com. Here, we discuss…

By: Scott J. Kennelly and Janet C. Owens In foreclosure actions based on assets of a failed bank, borrowers sometimes attempt to discover whether and how much the FDIC has reimbursed the acquiring institution for its loss under the…

By: Jacob Payne The Florida Statutes provide that the subsequent owner of a condo unit or home subject to a homeowner’s association is liable for the assessments of the previous owner that remain unpaid at the…

Part I: The Setup: Treatment of Prepetition Causes of Action in Bankruptcy Proceedings By: J. Ellsworth Summers, Jr. and Scott St. Amand In commercial lending, as in law, no single practice area exists independently of another. Bankruptcy law often intersects with contract…

By: Scott J. Kennelly & Janet C. Owens Once a bank’s primary regulator has determined to close a bank, the Federal Deposit Insurance Corporation steps in to “resolve” it, usually by accepting appointment as the bank’s receiver.  Before being…

(This post is no longer current.  The Third Circuit reversed its opinion in Bennett and held that authority is self-authenticating.  For more on the revised opinion, please see our updated post .) By: Douglas L. Waldorf, Jr. & Scott St. Amand Establishing the authority…

By: Samantha Alves Orender In Florida, it is well established that the original promissory note must be surrendered to the court as a condition of its enforcement. What do you do when you cannot find the original…

By: Amanda Parker Baggett Stop! Before you make those repairs, there are some things you should consider. Otherwise, you could find yourself down the road facing claims that your repairs destroyed evidence of the defects. Florida courts…

By: J. Ellsworth Summers & Scott St. Amand The long-awaited rehearing of In re McNeal has been given the green light from an unlikely source – a New York Bankruptcy Court Judge. The Chapter 7 lien stripping saga has been well…

By: Amanda Parker Baggett The old adage “time is money” is truer perhaps in the construction industry than anywhere else. Delays can cause significant economic damages for everyone involved on a construction project. But are those delay…

By: J. Ellsworth Summers, Jr. and Scott St. Amand From March 2012 to March 2013, 76,467 bankruptcy petitions were filed in Florida under Chapters 7, 11 and 13. In contrast, since the Great Depression less than 500 municipalities have…

By: Jacob J. Payne and Scott St. Amand As creditors’ counsel, we have often faced debtors who file bankruptcy simply to delay and frustrate the collection process.  A recent case out of the Eleventh Circuit typifies the no-nonsense attitude…

We hear this term, lienor, but it is often misunderstood. One does not have to record a Claim of Lien to be a lienor. The Act provides that anyone who has the right to file a…

By: Douglas L. Waldorf, Jr. One of the new statutes created by HB 87 is 702.015. I referenced this in a prior blog post on July 11, 2013. In reviewing the statute in detail, I find it…

By: Scott J. Kennelly and Susan Novak Many lending institutions use the 365/360 method of calculating interest on their loans.  This method involves applying the ratio of the annual interest over a year of 360 days, multiplied by the…

By: Scott J. Kennelly and Susan Novak A usury savings clause is a provision in a loan document that attempts to negate any other provisions therein that might result in the extraction of an illegal interest rate. Common examples…

By: M. Scott Thomas and Samantha Alves Orender A reasonable workout often remains the prudent choice for defaulted commercial real estate loans even in the context of a pending (or nearly completed) foreclosure action. Thus, it is not surprising…

We have all heard someone accused of defective design or construction say “we did it that way because that is the way we have always done it.” While there are circumstances that require analysis of industry…

By: Edward L. Kelly and Sara K. White Florida’s Uniform Commercial Code was subject to some recent changes and revisions which became effective on July 1, 2013. One change in particular was to Florida Statute § 679.5 16 which…

By: Scott J. Kennelly and Timothy D. Hedrick The Fair Debt Collection Practices Act (FDCPA) gives a debtor the right to notify a debt collector that he or she wishes the debt collector to cease communication with respect to…

By: Scott A. Padgett This past spring, the insurance and banking lobbies created quite a stir in the water and fire damage mitigation and restoration industry. During March and April, water mitigation contractors and restoration companies in…

By: Douglas L. Waldorf, Jr. In today’s environment, clients are more cost-conscious than ever and this is in direct conflict with the ever-increasing cost of litigation. There are, however, some common sense ways in which a…

By: Douglas L. Waldorf, Jr. In prior posts we analyzed the main components of HB 87, the bill introduced in the Florida legislature which proposed significant changes to certain aspects of Florida’s mortgage foreclosure process. The bill…

Sometimes it is good to review the basics. For instance, with Florida’s Construction Lien Act, it is easy to remember that alienor may obtain a lien for any unpaid “contract price” related to the permanent improvement…

By: J. Ellsworth Summers, Jr. and Scott St. Amand The Bankruptcy Code provides that creditors holding nondischargeable claims may pursue post-confirmation collection efforts. For example, § 1141(a), provides that a confirmed plan binds the debtor and the debtor’s creditors,…

By: F. Eugene Atwood The Supreme Court of Florida recently blurred the lines between contract and tort law in a case involving breach of contract and negligence claims between an insured and its insurance broker. The Court…

By: J. Ellsworth Summers, Jr. and Scott St. Amand In our previous post we discussed the due process requirements that underpin a debtor’s bankruptcy discharge. We noted that a debtor’s failure to schedule an actual or potential claim may prejudice the…

Of recent interest to architects, engineers and owners, Governor Scott signed into law an act relating to design professionals which limit their individual liability in certain circumstances. The new statute created by this law is section…

By: F. Eugene Atwood On March 7, 2013, the Supreme Court of Florida filed its opinion in Tiara Condominium Assoc., Inc. v. Marsh & McLennan Companies, Inc. With this case, the Court took the final step of receding from…

By: J. Ellsworth Summers, Jr. & Scott St. Amand It is not an uncommon practice for commercial lenders or real estate owners to employ a broker to assist with the sale of property for a commission. Recently, a corporation…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Although the 2005 BAPCPA amendments appeared to be a boon for creditors, at least with respect to Chapter 7 claims, individual Chapter 11 debtors immediately seized upon a perceived ambiguity…

By: Scott A. Padgett When foreclosing mortgages on commercial properties in Florida, banks are often able to choose whether to keep or remove the tenants after foreclosure. The decision to keep or remove a tenant usually depends…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Creditors often find themselves at the crossroads of multiple disciplines of law, such as the intersection of bankruptcy and tort law. Less commonly, however, creditors may find themselves at the…

By: Douglas L. Waldorf, Jr. With property values slowly increasing and borrowers beginning to see the light at the end of a long recession, the demand for renewal loans is slowly building. To that end, let’s briefly…

By: Aristides “Kico” Diaz One of the issues faced by a judgment creditor in pursuing collection of the judgment is the amount of attorney’s fees and costs that will be incurred in the collection efforts. They can…

By: Douglas L. Waldorf, Jr. In my April 18th post , I discussed the recent trend of municipalities enacting ordinances designed to give their code enforcement liens “superpriority” over prior-recorded mortgages. Basically, the municipalities have sought to achieve for…

By: Scott St. Amand & Douglas L. Waldorf, Jr. It is no secret that Florida consistently ranks among the worst states in the union in regards to the mire of the residential mortgage foreclosure case backlog. From 2007 to…

By: Scott St. Amand & J. Ellsworth Summers, Jr. When Hostess announced last November that it would be shutting the doors to its factories, spooked by the news and likely addled by decades of cream filling, hoarders of Ho-Ho’s…

By: J. Ellsworth Summers, Jr. & Scott St. Amand One of the primary roles of a Chapter 7 trustee is to ensure that the bankruptcy estate is preserved prior to liquidation. It is no wonder, then, that the Trustee’s…

By: Wyman R. Duggan The City of Jacksonville has enacted Ordinance 2013-94-E, granting a partial waiver of mobility fees for 18 months. The ordinance applies to both residential (single family and multifamily; existing lots and new development)…

By: Sara K. White & Douglas L. Waldorf, Jr. In a prior post, we discussed two of the four main components of HB 87, the foreclosure reform bill presently under consideration in Florida. The remaining sections of the bill…

By: Douglas L. Waldorf, Jr. I have recently encountered several situations in which local governments are claiming, under ordinances they have enacted, that their liens and fines have “superpriority” status over existing mortgages, regardless of when the…

By: J. Ellsworth Summers, Jr. & Scott St. Amand When an individual obtains a loan with no intention of repaying the lender, it is well established that such a debt is not dischargeable in bankruptcy. If, however, a debtor…

By: Jacob J. Payne Can a Chapter 11 debtor propose a plan to sell a lender’s collateral free and clear of the lender’s lien without allowing the lender to credit bid? The Supreme Court says “no”—unless there’s…

By: Scott J. Kennelly & Susan Novak Usury under Florida law is largely a matter of intent. It is not fully determined by the fact that the lender actually received more than law permits but by the existence of…

By: J. Ellsworth Summers, Jr. & Scott St. Amand When the time comes to collect a debt, few organizations are as accomplished as the Internal Revenue Service. The IRS showed just such guile in the case of In re Williams ,…

By: Scott J. Kennelly & Susan Novak Under Florida law, usury is defined as the willful and knowing charge or receipt of interest in excess of 18% per year for credit transactions involving less than $500,000 or between 25%…

By: J. Ellsworth Summers, Jr. & Scott St. Amand It was only a matter of time before judges in the lower courts of the Eleventh Circuit began to accept the appellate court’s decision in McNeal . Two such opinions have recently…

By: J. Ellsworth Summers, Jr. & Scott St. Amand The Bankruptcy Code protects lenders which reasonably rely upon a debtor’s financial statements when approving a loan. The Eleventh Circuit was recently faced with an “enterprising” debtor who attempted to…

By: Sara K. White & Douglas L. Waldorf, Jr. On February 7, the House Civil Justice Subcommittee voted to pass Florida’s newest bill designed to improve the efficiency of mortgage foreclosures: House Bill 87. While it is still early…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As we have discussed in previous posts, the Supreme Court has held that not all counterclaims which arise within the context of a bankruptcy case are “core” proceedings, such that…

By: Scott J. Kennelly & Janet C. Owens Following a foreclosure sale, a secured creditor may seek a monetary judgment for the deficiency amount that remains owed to it by the borrower. If the creditor was the successful bidder…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Under the absolute-priority rule, unpaid creditors normally receive the equity in a reorganized business. If a plan of reorganization proposes a “new value” investment in exchange for equity, however, the…

By: Douglas L. Waldorf, Jr. & Sara K. White On January 10, 2013 the Consumer Financial Protection Bureau issued a rule imposing new requirements on residential mortgage lenders. The “Ability-to-Repay” rule was created to help implement certain provisions of…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Because debtors may avoid certain transfers and contracts entered into during the ninety days before they filed their bankruptcy petition, trade creditors are understandably nervous about entering into contracts with…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Even one year removed from the Supreme Court’s decision in Stern v. Marshall , which challenged the jurisdiction of a lower bankruptcy court, many practitioners and lenders alike are still left with…

By: Scott J. Kennelly In previous posts, we introduced the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e) , which bar claims and defenses against the FDIC and its assignees by private parties based on improperly…

By: Scott J. Kennelly In previous posts, we introduced the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e) , which bar claims and defenses against the FDIC and its assignees by private parties based on improperly…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Mortgage modification has long been an angst-ridden topic for consumer creditors. The issue once again rose to the forefront in May of 2012, when the Eleventh Circuit issued the unpublished…

By: Scott J. Kennelly Last month, the Federal Deposit Insurance Corporation reported that 470 financial institutions have failed since 2007. It is no wonder, then, that many institutions are embroiled in litigation involving loans made by failed…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As stated in Doug Waldorf’s post below, the concept of property valuation in regards to a deficiency judgment is well established within the Eleventh Circuit. The fair market value of…

By: Scott J. Kennelly & Janet C. Owens In the wake of bank failures, some institutions have acquired failed bank assets, including loans, from the Federal Deposit Insurance Corporation. Such institutions should exercise caution when collecting on consumer loans…

By: Scott St. Amand Recently the Fifth Circuit handed down a thorough opinion regarding Chapter 15 cross-border insolvency and its effects on domestic and foreign creditors. Beyond the Chapter 15 context, however, the court of appeals in In re…

By: Jacob J. Payne Offshore asset protection trusts (OAPT) typically have the following characteristics: (1) the trust is governed by the laws of a foreign jurisdiction that does not recognize the judgments or orders of courts of…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Cramdown. The very word makes the hair on the back of lenders’ necks stand up, because in the past, there was little a lender could do once the bankruptcy court confirmed…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As many lenders have learned the hard way, an appeal of a confirmed Chapter 11 plan is often met with strong resistance by the debtor. Often a strong arm tactic…

By: Mark S. Mitchell Recently, the Florida Legislature amended F.S. § 222.11, the statutory exemption of an individual’s earnings from wage garnishment. The amendment of § 222.11 modified Florida’s wage garnishment exemption and afforded greater protection to…

By: Edward L. Kelly & Scott J. Kennelly A lender’s ability to set off against a borrower’s account can be a valuable tool for lenders, but care must be exercised to safeguard against potential liability. If setoff is exercised…

By: L. Javan Grant You own a commercial building which has been on the market for over two years. Finally, after anxiously waiting, a potential buyer emerges and shows some interest. There is just one problem, you…

By: Edward L. Kelly & Scott J. Kennelly Under Florida common law, a bank may set off the balance of an obligation owed to it by its depositor (e.g., a loan) against a general deposit made by…

-By: Jacob J. Payne Suppose you have been sued by the bankruptcy trustee for an alleged fraudulent transfer or a preferential payment. Who decides the case—the bankruptcy judge or a jury? This post explores the circumstances in…

By: J. Ellsworth Summers, Jr. & Scott St. Amand As discussed in the McNeal posts below, junior mortgage holders are increasingly finding that their mortgages are worth less than the paper they were printed on. Especially troubling to lenders, are conflicting…

By: L. Javan Grant You own a business. During the holiday season a customer comes in your store and is physically assaulted and robbed by a third party. Are you, as the landowner, responsible? The answer: It…

By: Douglas L. Waldorf, Jr. In many foreclosure cases, the strategy of the borrower is simply to delay the case. Typically, the borrower hopes that delay will allow time to either work out a settlement with the…

By: Mark S. Mitchell Since the financial crisis of 2008, the economy has been improving, albeit at a slower pace than many would like, and the stock market has seen meaningful gains. However, unemployment is still relatively…

By: L. Javan Grant It can be an employer’s nightmare. You are sitting in your office, the telephone rings and it is the police department informing you that one of your employees has just committed an intentional tort…

By: L. Javan Grant You are the president of Company XYZ. You just finished a long telephone conversation with your outside counsel who is representing XYZ in significant product liability litigation. During your call outside counsel requests…

By: Scott J. Kennelly The central issue for a lender which seeks to obtain a monetary judgment following a foreclosure is the value of the property that was foreclosed. A lender typically engages an appraiser to value…

By: Douglas L. Waldorf, Jr. Recently, the Fifth District Court of Appeals decided Fort Plantation Investments, LLC v. Ironstone Bank , a case that may be of interest to lenders considering their options in pursuing a borrower for mortgage…

By: Douglas L. Waldorf, Jr. Most of you may know that, in Florida, the standard by which a deficiency is determined in a foreclosure case is the difference between the amount owed to the lender and the…

By: Scott J. Kennelly & Mark S. Mitchell The process for acquiring a judgment lien on a judgment debtor’s non-exempt personal property requires a Judgment Lien Certificate to be filed with the Florida Secretary of State [Fla. Stat. §55.202(2)]. …

By: Scott J. Kennelly and Mark S. Mitchell The process for acquiring a judgment lien on a judgment debtor’s non-exempt real property, requires a certified copy of the judgment to be recorded in a county’s public records.  The entry of a…

By: Scott J. Kennelly & Mark S. Mitchell A lien is a type of security interest that attaches to property, both real and personal, to secure payment of a debt or performance of an obligation.  Generally, there are two…

JACKSONVILLE, Fla. (October 8, 2012) – Rogers Towers, P.A. is pleased to welcome Daniel J. Noice and Janet C. Owens as new Associates in the firm. Noice joins the firm’s Real Estate Department and Owens will…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Nearly five months after McNeal was decided by the Eleventh Circuit, a challenge has arisen within the Eastern District of New York, which has historically been fertile ground for bankruptcy law. In Wachovia…

By: J. Ellsworth Summers, Jr. & Scott St. Amand Prior to the real estate market crash in 2008, homeowners routinely borrowed against the equity in their homes, in turn, granting lenders second or even third mortgages.  However, once the…

By: Douglas L. Waldorf & Sara Kannensohn White Lenders foreclosing mortgages in Florida frequently encounter claims by condominium associations for past due assessments. Increasingly, those entities are extending their claims in attempts to recover attorney’s fees and costs as…

An administrative law judge upheld the Florida Department of Environmental Protection (DEP) numeric nutrient water quality standards, clearing the way for those rules to be approved and implemented in the coming months. On June 7, Administrative…

Florida’s Statute of Repose – Safely Afloat In Troubled Waters U.S. Supreme Court Declines Review of Minnesota Bridge Collapse Case By: Amanda S. Parker On May 29, 2012, the Supreme Court of the United States denied…

By: Douglas L. Waldorf, Jr. On average, a Florida foreclosure can take nearly two years from service of process to final judgment. Lenders have little option but to suffer the costs of this delay in the form…

Chapter 2011-139, Laws of Florida, also amended Section 380.06(19)(c)(2) by extending all development of regional impact (DRI) commencement, phase, buildout and expiration dates for four (4) years, regardless of any previous extension, at the option of…

Chapter 2011-139, Laws of Florida (“House Bill 7207”), adopted earlier this year, provides the opportunity to take advantage of additional extensions of existing permits or development orders.  Similar to the last two years, House Bill 7107…

In recent years, individuals and regulatory agencies have become concerned with the effects of “vapor intrusion,” which is the migration of emissions from volatile compounds, such as petroleum or dry cleaning solvents, found in soil or…

The Jacksonville City Council has approved Ordinance 2011-617-E, waiving application of the Mobility Fee Ordinance recently adopted by the City. The Mobility Fee is designed to replace proportionate fair share transportation concurrency mitigation with a uniform and…

By T.R. Hainline, Jr. On September 13, the Jacksonville City Council adopted Ordinance 2011-536, eliminating the “fair share” system of traffic impact payments and replacing it with a mobility fee. On August 15, we sent a client alert…

By T.R. Hainline, Jr. Ordinance 2011-536 has been introduced to the Jacksonville City Council and is currently scheduled for committee hearings during the week of September 5 and a vote by the Council on September 13 . The Ordinance would: End the current system…

Governor Rick Scott signed House Bill 7005 into law on June 27, 2011 amending the Florida Unemployment Compensation Law (the “Law”). These amendments to the Law are intended to reduce state unemployment tax rates for most…

In, Tierra Holdings, Ltd. v. Mercantile Bank , a recent First District opinion, Judge James H. Daniel addressed the issue of whether a contractual fee shift provision is suspended following a reasonable settlement offer when the prevailing party…

Cat Charter LLC, et al v. Walter Schutenberger, et al, Eleventh Circuit Court of Appeals, July 13, 2011 In this case, a panel of the Eleventh Circuit Court of Appeals, in reversing the vacatur of an…

The Legislature has passed and the Governor signed HB 7207, comprehensive growth management reform legislation. The legislation amends several aspects of the growth management regulatory scheme in Florida. Summary highlights of the legislation follow. Changes to Comprehensive Plan…

Retaliation claims, almost always joined in the same action with discrimination claims, have been on the rise in recent years, aided by the United States Supreme Court.  Retaliation claims are dangerous for employers because they can be…

Arbitration clauses and attorney fee provisions tend to be boilerplate contract provisions to which parties give little thought.  Generally, these clauses are automatically included or excluded from a contract on the theory: That’s the way we’ve always…

At this time last year, we announced the surprising failure of Congress to act in 2009 to prevent the repeal of estate and generation-skipping transfer (“GST”) taxes effective January 1, 2010.  Early in 2010, there were…

Are you anxious to build a custom home after the economy recovers?  Are you a builder or architect looking to rekindle your business?  Now may be the time to consider the labyrinth of copyright issues that…

The law on non-compete agreements varies, often significantly, from state to state.   Florida is arguably the most pro-enforcement state in the country.  In Florida, employees generally can be restrained from competing in territories they worked for…

The economy has touched virtually every business and individual.  One of the most impacted industries is the financial market.  Lenders’ business practices have adjusted significantly from financing projects and purchases to collection and enforcement of security…

On September 27, 2010, President Obama signed the Small Business Jobs Act of 2010 (the “Act”).  The Act includes a number of important tax provisions, including among others, liberalized and expanded expensing for 2010 and 2011,…

The U.S. Environmental Protection Agency (“EPA”) is working to strengthen the Federal stormwater program by addressing two categories of sites: construction sites and newly developed or redeveloped sites. In an earlier Alert, dated December 29, 2009,…

A trial judge in Tallahassee has struck down Senate Bill 360, approved by the Legislature and Governor in 2009. As you may remember, Senate Bill 360 provided several forms of growth management relief in response to…

As government budget deficits increase, the misclassification of employees as independent contractors has become the focus of increased scrutiny by federal and state government agencies seeking to recover what they perceive to be lost revenue. In…

Florida’s leading wildlife agency has proposed amendments to its rules regulating endangered and threatened species that will make the state’s fish and wild animal protections more akin to federal requirements and eliminate species listing and permitting…

On January 5, 2010 the Internal Revenue Service published Notice 2010-6 providing relief and guidance on corrections relating to document failures of non-qualified deferred compensation (“NQDC”) plans to comply with Section 409A of the Internal Revenue…

In this difficult economic climate many businesses are over-burdened by debt and are considering various alternatives to satisfy their debt for less than the amount initially borrowed. Some businesses are restructuring the debt to reduce the…

Lenders often hold an “indicia of title” on property as a security interest for a loan. If the buyer has defaulted on the loan and contamination exists on the property, the decision to foreclose can be…

The Patient Protection and Affordable Care Act recently signed into law includes an amendment to the Fair Labor Standards Act entitled “Reasonable Break Time for Nursing Mothers,” which requires employers to provide reasonable break time to…

The Hiring Incentives to Restore Employment Act (“HIRE Act”), signed into law by President Obama on March 18, 2010, creates, among other things, two new tax benefits to employers hiring workers who were previously unemployed or…

Relatively few bills relating to growth management have been introduced in this session due to the pending statewide vote on Amendment 4. However, in response to court challenges to Senate Bill 360, which became law last…

The Florida Legislature is considering two bills during the 2010 session that would make mitigation bank credits the preferred alternative for offsetting wetland impacts from development projects and would establish a formal assessment determination process for…

In our last client alert, we reported that St. Johns County would be conducting a series of public hearings to obtain comments on proposed changes to its Land Development Code (the “Code”) related to transportation concurrency,…

State legislation adopted in 2009 reduced the authority of the Department of Community Affairs (DCA) to review and object to comprehensive plan amendments in many major urban areas (those designated as “Dense Urban Land Areas” in…

In January of this year, we reported to you that the City of Jacksonville Planning and Development Department had prepared a draft Mobility Plan in December, 2009, as required by the Community Renewal Act (Senate Bill…

St. Johns County is proposing some significant changes to its Land Development Code (the “Code”) related to transportation concurrency, site planning and architectural detail requirements for rezoning applications, and siting of ports and marinas. In the…

On December 14th, the Florida First District Court of Appeal issued a decision which impacts the rights of property owners and their ability to contest local ordinances. The decision was in the case of M&H Profit, Inc.…

As part of the Community Renewal Act (Senate Bill 360) adopted by the Legislature and signed into law in June 2009, State law no longer requires the City of Jacksonville to have a traffic concurrency system.…

The next deadline for submission of applications for comprehensive plan amendments in Jacksonville is February 3, 2010. This will be the last cycle of applications processed before the November 2010 election when Amendment 4, the “Hometown…

Federal and State agencies have long been concerned with the impact of stormwater discharges from construction sites where soil is washed into adjacent surface waters. The Florida Department of Environmental Protection (“FDEP”) has already established a…

Don’t forget to submit your permit extension requests by the end of 2009!  Under Senate Bill 360, which became law earlier this year, most state and local development permits can be extended for up to two…

Don’t forget to submit your permit extension requests by the end of 2009!  Under Senate Bill 360, which became law earlier this year, most state and local development permits can be extended for up to two…

Those who have been unlucky enough to participate in remediation of a Superfund site know that two issues make the experience very uncomfortable; strict liability and joint and several liability. Strict liability is painful enough, imposing…

Many elderly people rely entirely on family or other trusted individuals to help them. Whether it is for physical needs or emotional needs, as people grow older they tend to need more and more help from…

Do I need a residential building permit? The Jacksonville Building Inspection Division oversees the permitting process and is responsible for ensuring that existing and future developments and construction comply with Jacksonville’s building ordinances and the Florida…

The owner of a healthy business knows that a sound advertising and marketing strategy is critical to its success. Trademark registration can be an important factor in gaining market share and securing protection against a competitor,…

In the past, the St. Johns River Water Management District (“District”) considered on an ad hoc basis requests for the amendment or release of regulatory conservation easements, which are commonly conveyed to the District as wetland…

Expedited Permitting for Economic Development Projects House Bill 73, which took effect on July 1, 2009, provides expedited processing for Environmental Resource Permitting (ERP) and wetland resource permits issued by the Department of Environmental Protection and…

Senate Bill 2080 became law on July 1, shifting authority for issuance of consumptive use and environmental resource/management and storage of surface water (“MSSW”) individual permits from water management district governing boards to district staff. In…