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Appeals Court Holds Condo Cannot Foreclose On Property If Bank Files Foreclosure Suit First

A Florida appeals court recently held that a condominium association that filed a foreclosure complaint to recover unpaid assessments could not foreclose its lien because of an existing lis pendens placed on the property by the first mortgagee. The court held that, if a bank files a lis pendens on a property, this lis pendens bars others that have an interest in the property from enforcing liens and levies against the unit unless that party intervenes in the first mortgagee’s case. While the decision is only binding in Broward and Palm Beach Counties for now, courts in other Florida counties could rely on it as persuasive authority. This decision has important implications for community associations; if an association does not record a lien against a property before the bank records a lis pendens, a court can bar the association from foreclosing on that property. Therefore, it is important for associations to record liens early so that they can “get in front of” the bank’s lis pendens. Of course, community associations must still comply with the statutory waiting periods in pre-suit collections. Condominium associations must wait thirty days after sending a demand letter to record a lien against the property, and another thirty days after recording the lien to file a complaint. Homeowners associations must wait forty-five days between each step in order to file a foreclosure complaint against a delinquent owner.

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Categories: LitigationCondominium AssociationsHomeowners' Associations
Tags: CollectionsCondos and HOAsCovenants and RestrictionsJamie A. ColeEdward G. GuedesJoshua D. KrutMichael S. PopokJoseph H. SerotaMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerFort Lauderdale Condominium Association AttorneysMiami Condominium Association AttorneysSouth Florida Condominium Association AttorneysMatthew H. MandelFort Lauderdale Homeowners' Association AttorneysMiami Homeowners' Association AttorneysSouth Florida Homeowners' Association AttorneysFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFlorida Community Association LawFlorida Condo Association LawFlorida Litigation AttorneysFort Lauderdale Civil Litigation AttorneysMiami Litigation Attorney
Author(s): Joshua D. Krut & Brooke P. Dolara

Florida Legislators Consider Changes to Existing Foreclosure Laws

For the third time since 2010, Florida lawmakers introduced a bill designed to accelerate the foreclosure process in the state. House Bill 87, otherwise known as the "Fair Foreclosure Act,” offers a number of changes to civil procedures in foreclosure cases, including limiting discovery time available to owners and requiring lenders to file the original note or certification that they have the note. The bill makes these changes retroactively, so pending cases would be affected as by the legislation. Proponents of the Fair Foreclosure Act argue that it provides community associations with leverage against banks that file foreclosure lawsuits against delinquent owners and then fail to litigate the case aggressively. By speeding up the foreclosure process, they argue, the Fair Foreclosure Act helps community associations get rid of delinquent owners who incur massive arrearages during the pendency of a long foreclosure process. Detractors counter that the bill does not incentivize the banks to prosecute a foreclosure aggressively, and that most of the changes place too great a burden on homeowners.

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Categories: LitigationCondominium AssociationsHomeowners' AssociationsCivil Procedure
Tags: CollectionsCondos and HOAsGoverning DocumentsCovenants and RestrictionsJamie A. ColeEdward G. GuedesJoshua D. KrutMichael S. PopokJoseph H. SerotaFlorida LegislatureMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerFort Lauderdale Condominium Association AttorneysMiami Condominium Association AttorneysSouth Florida Condominium Association AttorneysMatthew H. MandelFort Lauderdale Homeowners' Association AttorneysMiami Homeowners' Association AttorneysSouth Florida Homeowners' Association AttorneysFlorida Commercial Litigation LawyerFlorida Community Association LawFlorida Condo Association LawFlorida Litigation AttorneysFort Lauderdale Civil Litigation Attorneys
Author(s): Brooke P. Dolara

New Fannie Mae and Freddie Mac Guidelines Aim to Curb Foreclosures, Facilitate Short Sale Process

The Federal Housing Finance Agency (“FIFA”), the regulatory agency governing Fannie Mae, Freddie Mac and the Federal Home Loan Banks, recently promulgated new guidelines to facilitate approval for eligible borrowers for a short sale.

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Categories: Condominium AssociationsHomeowners' AssociationsReal Estate
Tags: CollectionsCondos and HOAsJonathan CohenJoshua D. KrutFort Lauderdale Condominium Association AttorneysMiami Condominium Association AttorneysSouth Florida Condominium Association AttorneysFort Lauderdale Homeowners' Association AttorneysMiami Homeowners' Association AttorneysSouth Florida Homeowners' Association AttorneysFort Lauderdale Real Estate AttorneysMiami Real Estate AttorneysSouth Florida Real Estate AttorneysFort Lauderdale Real Estate LawyerMiami Real Estate Lawyer
Author(s): Brooke P. Dolara

Government Officials Reach $26 Billion Settlement with Major Banks to Bring Relief to Homeowners

Federal and state officials have reached a $26 billion foreclosure settlement with Bank of America, JPMorgan Chase, Wells Fargo, Citigroup, and Ally Financial, five of the nation’s largest banks. The settlement is the largest deal reached to alleviate the damage caused by the housing market crash, and could provide relief to nearly two million current and former homeowners affected by the crash.

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Categories: LitigationClass ActionsAlternative Dispute Resolution
Tags: CollectionsChapter 7 BankruptcyChapter 11 BankruptcyJamie A. ColeEdward G. GuedesMichael S. PopokJoseph H. SerotaDamagesFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation LawyersSouth Florida Private Transactions AttorneysSouth Florida Private Transactions LawyersFort Lauderdale Private Transactions AttorneysMiami Private Transactions AttorneysMatthew H. MandelFort Lauderdale Real Estate AttorneysMiami Real Estate AttorneysSouth Florida Real Estate AttorneysFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsAlternative Dispute Resolution
Author(s): Brooke P. Dolara

Mandatory Foreclosure Mediation Ends in Florida

On Monday, Florida Supreme Court Justice Charles Canady issued an Order terminating the state’s mandatory foreclosure program. Citing the program’s abysmal success rate, Justice Canady wrote that the state “cannot justify the continuation of the program.”

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Categories: LitigationCondominium AssociationsBankruptcy & Creditors’ RightsHomeowners' AssociationsAlternative Dispute Resolution
Tags: CollectionsFlorida Supreme CourtJamie A. ColeDouglas R. GonzalesEdward G. GuedesJoshua D. KrutAleida Martinez MolinaMichael S. PopokJoseph H. SerotaFort Lauderdale Condominium Association AttorneysMiami Condominium Association AttorneysSouth Florida Condominium Association AttorneysFort Lauderdale Homeowners' Association AttorneysMiami Homeowners' Association AttorneysSouth Florida Homeowners' Association AttorneysFort Lauderdale Bankruptcy AttorneysMiami Bankruptcy AttorneysSouth Florida Bankruptcy AttorneysFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsAlternative Dispute ResolutionMediation
Author(s): Brooke P. Dolara

Condo Owner Files Bankruptcy...Collection Efforts End? Not Necessarily...

Most well-informed Florida condominium and homeowners' association boards know that the filing of a petition in bankruptcy court by a unit owner halts direct collection efforts. What most boards do not understand, however, is that the mere filing of a Chapter 7 or Chapter 11 petition does not discharge that debtor's post-bankruptcy filing obligations to the association – even when the debtor "surrenders" the property in the bankruptcy or otherwise moves out of the subject unit.

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Categories: LitigationCondominium AssociationsBankruptcy & Creditors’ RightsHomeowners' Associations
Tags: Automatic StayCollectionsChapter 7 BankruptcyChapter 11 BankruptcyCondos and HOAsJoshua D. KrutAleida Martinez MolinaFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerFort Lauderdale Condominium Association AttorneysMiami Condominium Association AttorneysSouth Florida Condominium Association AttorneysFort Lauderdale Homeowners' Association AttorneysMiami Homeowners' Association AttorneysSouth Florida Homeowners' Association AttorneysFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFlorida Commercial Litigation LawyerFlorida Litigation AttorneysFort Lauderdale Civil Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysMiami Commercial Litigation AttorneyMiami Litigation Attorney
Author(s): Aleida Martínez Molina