Section 673.3091, Florida Statutes, permits lenders to enforce lost, destroyed, or stolen instruments, but only upon certain conditions. One of those conditions is that “the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the […]
It is not uncommon for a borrower to file for bankruptcy before or during a foreclosure lawsuit, or most commonly, upon the eve of the foreclosure sale. When a borrower files a voluntary petition under the Bankruptcy Code, Section 362(a) of the Bankruptcy Code provides an automatic stay of most […]
In Florida, foreclosures are judicial. This means that a lender must file a foreclosure complaint with the court, and the borrower will be given an opportunity to file defenses to stop the foreclosure. Some of the common defenses to foreclosure include: lack of standing; failure to provide required notice of […]
Lenders can often expedite a foreclosure by moving for an order to show cause under Section 702.10, Florida Statutes. There are two types of orders to show cause. The first directs the defendants to show why a foreclosure judgment should not be entered. § 702.10(1), Fla. Stat. (2020). If the defendants […]
Foreclosures can be a lengthy, expensive process for both lenders and borrowers. There are several foreclosure alternatives lenders can consider that often achieve more effective resolutions, which are acceptable to both parties. When both the lender and borrower believe the borrower should remain in possession of the property, modification is […]
In Florida, all mortgages are foreclosed in equity. Fla. Stat. § 702.01. Based on this, there are a few things lenders should be aware of before foreclosing on a mortgage: there is no right to a jury trial, the borrower has a right of redemption, the borrower is entitled to […]
Lenders sometime receive requests for a payoff amount during a foreclosure. This is because borrowers can reclaim their interests in property subject to foreclosure by paying off the balance of their loan, at any time before the clerk of the court files a certificate of sale (which is often referred […]
Lenders must pay particular attention to subordinate liens and encumbrances prior to initiating any foreclosure action. Lenders can discover whether subordinate liens and encumbrances exist on a property by performing a title examination prior to initiating foreclosure. Failure to discover subordinate liens and encumbrances will cause lenders to mistakenly exclude […]
Lenders, Developers, Environmental Professionals and others over the years have come to know the industry standard for conducting and reporting environmental due diligence, “ASTM E1527 Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process”. E1527 (commonly referred to as a “Phase I”) was designed by ASTM International […]
When a lender holds a defaulted loan there are several issues that need to be considered before initiating a foreclosure. Lenders must ensure compliance with all relevant State and Federal laws and regulations to preserve their remedies for recovery. Additionally, specific Federal regulations may also apply and provide additional requirements […]