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Florida Supreme Court Holds Borrower is Entitled to Attorney’s Fees Despite Bank’s Failure to Prove Standing at the Inception of the Case
On December 31, 2020, in Page v. Deutsche Bank Trust Company Americas, No. SC19-1137, the Florida Supreme Court quashed the Fourth DCA’s ruling that the borrower was not entitled to attorney’s fees due to the banks failure to prove standing, and approved the decisions made in Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon, 2018 WL 6816177 (Fla. 2d DCA 2018).
In Page, the lower court held that the bank did not prove standing at the time the complaint was filed, but did establish standing at trial. The Fourth DCA ruled that the borrower who successfully argues that the bank lacked standing at the time the suit was filed cannot rely on the contract to obtain attorney’s fees under Fla. Stat. section 57.105(7).
The Fourth DCA in Page certified conflict with the Fifth DCA’s decision in Madl and the Second DCA’s decision in Harris. Both Madl and Harris held that a prevailing borrower is entitled to attorney’s fees if it is established that plaintiff became subject to the unilateral fee provision in the contract. In other words, if plaintiff lacks standing at the time the suit was filed, but subsequently establishes standing at trial, then the borrower is entitled to attorney’s fees under section 57.105(7). By contrast, in Page, the Fourth DCA did not give weight to the fact that the plaintiff subsequently established standing at trial.
Florida’s Fourth DCA Confirms the One-Year Statute of Limitations for a Deficiency Action Brought Within a Foreclosure Case
On December 9, 2020, in Accardi v. Regions Bank, No. 4D20-0662, the Fourth DCA held that the one-year statute of limitations specified in section 95.11(5)(h), Fla. Stat., applies to a motion for deficiency judgment brought within an existing mortgage foreclosure action. The Court also determined the limitation period began with the issuance of the Certificate of Title.
On December 31, 2020, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, that goes into effect May 2021.
The amended rule adopts the federal summary judgment standard. Prior to the amendment, Florida courts and the federal courts had not been aligned in their controlling summary judgment standard.
Prior to this amendment, there were two relevant differences between the Florida and the Federal summary judgment standards:
On December 4, 2020, the Fifth District Court of Appeal of Florida, in Torruella and Luxury Living Developers Corporation v. Nationstar Mortgage, LLC, Case No. 5D19-3298, held that “a dismissal for lack of personal jurisdiction does not confer ‘prevailing party’ status on the party over whom the trial court lacks jurisdiction because the trial court does not rule on any issue central to the merits of the dispute, and the legal relationship between the parties following such a disposition has not been materially changed.”
This case is not yet final, and Padgett Law Group recommends reading the entire case for the specific facts that led to this holding.
USPS MAILING RECEIPT IS NOT REQUIRED AND WITNESS TESTIMONY IS SUFFICIENT TO PROVE COMPLIANCE
In Lakeview Loan Servicing, LLC v. Walcott-Barr, Case No. 4D19-1582, the trial court granted the borrowers motion for involuntary dismissal because Lakeview failed to introduce evidence of mailing of the HUD face-to-face letter from the United States Postal Service. On October 14, 2020, the Fourth DCA issued an opinion overturning the trial court’s dismissal and reversed the judgment.
At trial, Lakeview’s witness stated that they visited the property once in an attempt to conduct a face-to-face interview, and the HUD face-to-face letter was: addressed to the Borrowers, sent to the property address, and sent by USPS certified mail. As additional confirmation that the letter was sent by certified mail, the witness identified the USPS certified mail tracking number. However, Lakeview did not introduce any mailing receipt or letter log into evidence. The borrowers argued they were entitled to an involuntary dismissal because there was not a face-to-face interview, and Lakeview had not shown it made reasonable efforts to schedule an interview by a certified letter because it did not produce a mailing return receipt. The trial court concluded that Lakeview needed to introduce evidence of a mailing return receipt from USPS and the case was dismissed.
However, the Fourth DCA held that the plain language of the applicable HUD regulation (see 24 C.F.R. § 203.604(d)) does not require a certified mail receipt from the USPS to establish compliance. Rather, the servicer can introduce other evidence to confirm compliance with the regulation. But, most importantly, the regulation does not limit how a lender can prove such compliance.
Accordingly, the Fourth DCA held that Lakeview established compliance through witness testimony. The witness identified the letter sent to the borrowers requesting a face-to-face meeting. The witness explained that the letter, admitted as an exhibit without objection, was sent to the borrowers at the property address and was sent via USPS certified mail. The witness also identified the USPS certified mail tracking number. Moreover, the letter was sent by a third party vendor, and the witness sufficiently detailed her training of the mailing policies and procedures of her employer and the vendor. Pursuant to the Fourth DCA, this testimony was sufficient to establish a “reasonable effort” under 24 C.F.R. § 203.604(d).
Important to note: In this case, because the HUD regulations were incorporated into the mortgage, the Fourth DCA stated that Lakeview was required to substantially comply with the HUD regulation prior to accelerating the obligation or filing the foreclosure complaint. This issue was recently addressed in PennyMac Loan Services LLC v. Ustarez, No. 4D19-3547, 2020 WL 5541982 (Fla. 4th DCA 2020), which states that the HUD regulation is not a statutory pre-condition to foreclosure applicable to all mortgage foreclosure suits. Instead, PennyMac concluded that incorporation of the HUD regulation into a note or mortgage constituted a self-imposed contractual pre-condition to foreclosure. In other words, compliance with the regulation is only an issue if the note and mortgage contain language requiring compliance. In Lakeview, the loan documents did incorporate the HUD regulation, therefore, the servicer was required to introduce evidence that it complied with the regulations.
Marissa Yaker, Esq. Wins 'Rising Business Leader' Award from Five Star Global in 2020 Women in Housing Feature
[ OCTOBER 6, 2020 | ATLANTA, GA ] Padgett Law Group (PLG), is pleased to announce that Managing Attorney of Foreclosure, Marissa Yaker, Esq., has been recognized by Five Star Global as the 2020 Rising Business Leader award recipient as part of the annual Women in Housing Awards.
Yaker was featured last month in the September issue of The M Report along with all 25 other finalists. Other award categories include the Cultural Leader Award, Community Leadership Award, Diversity & Inclusion, and the Laurie A. Maggiano Legacy Award. With open nominations, each category is narrowed to just five finalists each year in a peer review conducted by Five Star Global’s editorial group and then a final winner is revealed for each category.
Yaker said, "This award is an affirmation that our industry recognizes, encourages, and supports women who have a drive, passion, and desire to question and improve this industry. We each have a voice, but collectively our voice is louder and stronger. I feel grateful to work in an industry that supports one another and helps strengthen professionals such as myself." Her full feature can be read online at TheMReport.com.
The firm was previously recognized in the same category when Keena Newmark, Esq., the firm’s Managing Attorney of Bankruptcy was a top-five finalist, making the 2020 nomination the firm’s second consecutive year in the awards’ top five nominees. In 2019, Newmark was the only non-servicing professional recognized in the category. The same year, The M Report recognized PLG as a Top 25 Place to Work in the default services industry.
Yaker joined PLG in 2017 and has practiced in the residential mortgage default space since 2013. She is licensed to practice in the state Florida. In her role as Managing Attorney of Foreclosure, Yaker oversees foreclosure processing and operations across seven physical locations within the firm’s footprint which includes Florida, Georgia, Tennessee, Arkansas, Texas, and Ohio.
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