NEW STATUTE IN EFFECT AS OF 10/1/18 REGARDING BANKRUPTCY AND FORECLOSURE: APPLIES TO ALL NEW FORECLOSURES FILED ON OR AFTER OCTOBER 1, 2018
Effective October 1, 2018, Florida Senate Bill 220, also known as Fla. Stat. 702.12 went into effect. One of the purposes behind this law was to curb the abusive bankruptcy filings that hinder and delay foreclosure actions. Per the statute, a lienholder, in an action to foreclose a mortgage, may submit any document the defendant filed under penalty of perjury in the defendant’s bankruptcy case for use as an admission by the defendant to show a rebuttable presumption that the defendant has waived any defense to the foreclosure. The rebuttable presumption is created when a lienholder files evidence of the defendant’s intention to surrender the subject property, and a final order in the bankruptcy case which discharges the defendant’s debts or confirms the defendant’s repayment plan that provides for the surrender of the property.
This law reinforces the already favorable decisions from the bankruptcy courts in Florida that have held that a debtor who surrenders his/her property is unable to contest the foreclosure. To go further, the Eleventh Circuit has recently held that if an election of surrender is made, the debtor is unable to contest a subsequent foreclosure, even if the foreclosure has not yet occurred. In fact, the Bankruptcy Court for the Middle District of Florida found that a Chapter 13 debtor acted in bad faith by filing a Chapter 13 and seeking to treat the property when that same debtor had surrendered the property in a previous Chapter 7 and received a discharge. The Court found this to be an extension of a foreclosure defense and violated the requirements of surrender.
Moving forward, it is imperative that PLG clients are being proactive in the bankruptcy cases (Chapters 7 and 13) in order to ensure that the following occur:
It is to PLG clients' advantage to obtain a declaration of surrender (even if the loan is current) in order to stop endless litigation in the foreclosure.
DATE: OCTOBER 10 TIME: 2:00 - 3:00 P.M. EDT
Manufactured/Mobile homes present numerous challenges in the mortgage origination and default arenas. This webinar will focus on the titling/de-titling of manufactured/mobile homes in the States of Arkansas, Florida, Georgia, and Tennessee. Topics include how to perfect a security interest in a manufactured/mobile home, whether the title to the home should be surrendered and de-titled, or whether the home may remain titled as personal property. Attendees will also learn about state-specific de-title processes, bankruptcy implications, and how manufactured/mobile homes are handled in non-judicial and judicial foreclosures. There will be a ten minute Q&A session at the end of the presentation. This webinar features Mitch Berry, Esq., Supervising Attorney of PLG's Arkansas operations and Josh Hopkins, Esq., Supervising Attorney of REO & Title operations.
PROCHAMPS, a Florida Corporation and Community Champions Company is pleased to announce our new partnership with the community of Doral City, FL. Effective immediately, PROCHAMPS will be administering the property registration program(s) on behalf of Doral City, FL. You should immediately begin registering your properties with www.prochamps.com. The registration requirements include both occupied and vacant properties with:
Slight departures from the name use by a corporation, such as the omission of a part of its name or the inclusion of additional words does not affect the validity of the endorsement on the note.
On September 20, 2018, the Fourth District Court of appeals in Avant Capital, LLC d/b/a Avant Recovery Fund v. Gomez, Case No. 4D17-1014, 43 Fla. L. Weekly D2163a (September 20, 2018) held that “ [s]light departures from the name used by the corporation, such as the omission of a part of its name or the inclusion of additional words, generally will not affect the validity of contracts or other business transactions as long as the identity of the corporation can be reasonably established from the evidence.” Presley v. Ponce Plaza Assocs., 723 So. 2d 328, 330 (Fla. 3d DCA 1998) (Cope, J., specially concurring) (emphasis omitted) (citing 6 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 2444, at 156-58 (perm. ed. rev. vol. 1996)). See also Sweet v. Ranger Realty Co., 146 So. 199, 200 (Fla. 1933) (affirming denial of motion to dismiss suit brought to foreclose a tax certificate issued to “Covington Bank & Trust Company” instead of “Covington Trust and Banking Company”); accord Laws v. Ranger Realty Co., 148 So. 583, 583 (Fla. 1933).”