Entries by Roy Diaz

COURT REVERSES DISMISSAL | Key Points

Last month the Third DCA reversed the lower court’s dismissal of a two-count complaint seeking foreclosure and reestablishment of a lost note against Florida Kalanit, a subsequent title owner, and others. HSBC Bank v. HSBC Bank USA, Nat’l Ass’n v. Florida Kalanit 770 LLC, 45 Fla. L. Weekly D54 (Fla. 3d DCA Jan. 2, 2020). […]

COURT REVERSES DISMISSAL AND ENTERS JUDGMENT FOR BANK FINDING BANK HAD STANDING TO ENFORCE LOST NOTE

Last month the Third DCA reversed the lower court’s dismissal of a foreclosure action filed by HSBC Bank USA, National Association (“HSBC” or “the Bank”) against the borrowers and a subsequent title holder, Florida Kalanit 770 LLC (“Florida Kalanit”). HSBC Bank v. HSBC Bank USA, Nat’l Ass’n v. Florida Kalanit. HSBC filed a two-count complaint […]

FLORIDA COURT FINDS MORTGAGE TERMS PROVIDE FOR RECOVERY OF BANK’S ATTORNEYS’ FEES FOR PRIOR UNSUCCESSFUL FORECLOSURE

The Fifth District Court of Appeals (“Fifth DCA”) rendered a decision wherein it reversed a judgment for the borrower, Patricia Leigh (“Leigh”), and ordered the lower court to enter judgment for US Bank, the mortgagee. U.S. Bank Trust, N.A., as Trustee for LSF9 Master participation Trust v. Patricia Maria Cozza Leigh. In Leigh, US Bank […]

FLORIDA COURT FINDS MORTGAGE TERMS | Key Points

The Fifth DCA recently reversed a judgment entered in favor of a borrower, Leigh, against its mortgagee, US Bank. S. Bank Trust, N.A., as Trustee for LSF9 Master participation Trust v. Patricia Maria Cozza Leigh, Case No. 5D17-2967, 44 Fla. L. Weekly D2914 (Fla. 5th DCA December 6, 2019). In Leigh, the trial court found […]

UPDATE RE: BANKRUPTCY SURRENDER – DEBTOR’S SURRENDER IN BANKRUPTCY MOOTED APPEAL OF FORECLOSURE JUDGMENT

Earlier this month the Second DCA dismissed an appeal of a final summary judgment of foreclosure based on the statement of intentions the debtor/mortgagor (“Lewis”) filed in his chapter 7 bankruptcy proceedings. Lewis v. Innova Inv. Group, LLC. In Lewis the mortgagor appealed the bank’s final judgment of foreclosure and then the day before the foreclosure sale petitioned […]

COURT CLARIFIES REQUIREMENTS FOR PROVING SATISFACTION OF CONDITIONS PRECEDENT & EXPLAINS NEGATIVE AMORTIZATION DOES NOT DESTROY NEGOTIABILITY OF NOTE

The Second DCA recently issued an opinion wherein it agreed with its sister court that a note containing a negative amortization provision is still a negotiable instrument as defined by Florida Statute § 673.104(1) Stacknik v. U.S. Bank Nat’l Ass’n as Tr., MASTR Adjustable Rate Mortgages Tr. 2007-3 Mortgage Pass-Through Certificates, Series 2007-3. In Stacknik, the borrower […]

DEBTOR’S SURRENDER IN BANKRUPTCY MOOTED APPEAL OF FORECLOSURE JUDGMENT

Earlier this month the Second DCA dismissed an appeal of a final summary judgment of foreclosure based on the statement of intentions the debtor/mortgagor (“Lewis”) filed in his chapter 7 bankruptcy proceedings. Lewis v. Innova Inv. Group, LLC. In Lewis the mortgagor appealed the bank’s final judgment of foreclosure and then the day before the foreclosure sale petitioned […]

REQUIREMENTS FOR FORECLOSING A MODIFIED LOAN IN FLORIDA

In 2016 the Fourth DCA reversed a mortgagee’s final judgment of foreclosure and dismissed the case due to the mortgagee’s failure to introduce the written loan modification into evidence at trial. Rattigan v. Central Mortgage Co., 199 So. 3d 966 (Fla. 4th DCA 2016). In Rattigan, the original note “capped the principal amount that could be owed at $747,500.” […]