OCTOBER 2016 REAL PROPERTY CASE LAW UPDATES

By: Jacqueline A. Salcines, Esq.

FORECLOSURE LAW:  Debtor lost the right to defend the mortgage foreclosure action pending in state court, when it agreed to surrender the property in the bankruptcy and was required to surrender the property to the trustee and to the mortgage lender.  Failla v. Citibank, N.A., Case No. 15-15626 (11th Cir. Oct. 4, 2016) (affirmed).

FORECLOSURE AND CONDO ASSESSMENTS (SAFE HARBOR LIMITATION):  The mortgage lender, who recovered the property via the foreclosure sale, is entitled to the safe harbor limitation of liability for condominium assessments as applicable to first mortgagees under Fla. Stat. 718.116.  Brittany’s Place Condominium Association, Inc. v. U.S. Bank, N.A., Case No. 2D15-3444 (Fla. 2d DCA Oct. 5, 2016).

FORECLOSURE DEFAULT NOTICE:  Final Summary Judgment of Foreclosure reversed where Plaintiff failed to address, in its motion for summary judgment, or at the hearing on the motion, defendant’s affirmative defense that default notice did not comply with Paragraph 22 (acceleration clause).  Young v. Nationstar Mortgage, LLC, No. 2D15-1023 (Fla 2d DCA September 28, 2016) (reversed and remanded).

FORECLOSURE LAW STATUTE OF LIMITATIONS:  The trial court erred in dismissing amended complaint as barred by the Florida statute of limitations where claims asserted in amended complaint arose from same “conduct, transaction, or occurrence” as initial timely complaint.  Anderson v. Epstein, et al., No. 3D15-1050 (Fla. 3d DCA September 28, 2016 (dismissed in part, reversed in part and remanded).

FORECLOSURE/STANDING:  Plaintiff failed to establish its own standing to foreclose as substituted plaintiff, as well as standing of original plaintiff, because (1) there was no evidence  as to when indorsement was placed on note or to whom note was payable at commencement at suit, (2) testimony regarding when note was lost did not demonstrate that note was indorsed in blank to predecessor prior to suit being filed, and (3) insufficient evidence to prove a transfer of note from original lender to predecessor as a nonholder in possession with rights of a holder. Luiz v. Lynx Asset Servs., LLC No. 4D15-558 (Fla. 4th DCA Aug. 24, 2016) (reversed)

FORECLOSURE – BANKRUTPCY AUTOMATIC STAY:  Final Judgment entered day after Defendant’s petition for bankruptcy was in effect, voided the judgment, even though trial court did not have the notice of stay filed.  Citibank, N.A. as Trustee v. Unknown heirs, No. 1D15-2502 (Fla 1st DCA July 25, 2016) (reversed and remanded).

About the Author:

Jacqueline A. Salcines, Esq is the Owner and Managing Partner of the Law Offices of Jacqueline A. Salcines, P.A. Real Estate and Business Law Litigation Group. With over 17 years experience as a real estate lawyer, including holding a dual degree in Accounting, her broad knowledge of real estate law serves to aggressively protect and defend our firm’s clients.

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Jacqueline A. Salcines

JACQUELINE A. SALCINES, ESQ.

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