Blogs & Resources

For lenders, prior to taking a mortgage on property within a condominium or homeowners’ association community, it is important to review and understand the association’s governing documents (declaration, by-laws, and articles of incorporation) to determine the priority of an assessment lien and a mortgage. Just because a mortgage was recorded prior to the assessment lien, does not mean the lender’s mortgage will take priority over the association’s assessment lien. The language of the association’s governing documents is critical in determining the priority of these encumbrances.

When a real estate transaction fails to close, there are a multitude of legal issues that arise for the buyer, seller, and real estate broker. Often times the buyer’s earnest money binder or “deposit” is being held by a third party escrow agent. Both the buyer and seller are making conflicting claims to the binder. Section 475.25(1)(d)1., Florida Statutes, sets for the statutory procedure that real estate professionals should follow in the event of conflicting binder claims. Remember that real estate agents and brokers are regulated by the Florida Department of Business and Professional Regulation so they must follow some specific procedures in the event of a binder dispute. These procedure are outlined generally by Florida Realtors® and include seeking an Escrow Disbursement Order, Arbitration, Mediation or Interpleader. This blog will focus on the use of Interpleader Actions for escrow binder disputes in Florida.

Occasionally a borrower’s counsel or counsel for an institution that has served as a lending partner in some capacity will get crafty in trying to shift the blame for bad business transactions to the originating and lead lending institution by asserting claims against the original lender for not performing like a reasonable and prudent bank can be expected to perform in the administration of a loan. The claims come in many forms, but they are all predicated on the same fundamental premise: if the bank had performed a better/reasonable underwriting or processing of the original loan, then the losses that ultimately occurred would have been prevented. Fortunately for banks, these types of claims are unsustainable in Florida law. There is no tort duty for banks to process loans competently. See Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d 1330, 1339 (S.D. Fla. 2011).

You have a claim against a corporation and/or its officers, but you find out that the corporation is dissolved and there is a successor corporation in its place that appears to be essentially the same corporation. Now what? In Bernard v. Kee Mfg. Co., Inc., Florida’s Supreme Court adopted the […]

The newest development concerning independent tort claims and causes of action arising from a breach of contract manifests as a result of Tiara Condo. Ass’n., Inc. v. Marsh & McLennan Co. and is exemplified through the holding of Marian Farms, Inc. v. SunTrust Banks, Inc. Marian Farms, Inc. v. SunTrust […]

As counsel for lenders, I’ve been consulted with and required to opine on a wide range of topics throughout my career.  Specific to financial institutions, lawyers working in our banking law practice group have knowledge of not only the legal process for special assets workouts and the regulations governing commercial […]

Lenders and trade vendors often sagely require personal guarantees from the insiders of their debtor. In the event of debtor bankruptcy, a creditor may look to the insider-guarantor to satisfy the debt. The creditor’s ability to be made whole, then, is directly related to the financial position of the insider-guarantor. There is a problem: the Deprizio doctrine can erode the insider-guarantor’s financial position. Under the doctrine, the bankruptcy Trustee may disgorge assets from the guarantor that could otherwise satisfy the debt. Luckily, there is a solution to the Deprizio problem: a carefully crafted guaranty agreement that waives the guarantor’s claim against the bankruptcy debtor. This blog post explains the problem and clarifies the solution.

Most of the cases alleging an insufficiently drafted  personal guaranty concern corporate officers guarantying corporate debt, and the officer’s  subsequent defense that he was signing in a strictly representative capacity.  In deciding these cases, courts have also outlined the language requirements for a valid guaranty. This post is the third […]

This post is the second part of a two part series examining defenses to enforcement of personal guaranties in Florida. Part one identified successful defense to enforcement of a guaranty and can be found here. Part two seeks to analyze defenses that have been unsuccessfully asserted in defense of personal guaranty enforcement.

A personal guaranty is a contract signed by an individual wherein the guarantor affirms his or her personal obligation on a loan or some other debt obligation, such that if the original debtor becomes unable to pay the debt, the guarantor is personally liable for that debt and is legally responsible for its repayment. In a typical case, a President, CEO, or other officer signs a personal guaranty for the debts of his or her business and becomes personally liable for the debt if the business doesn’t pay it off. Florida case law demonstrates that a simple, but well-drafted personal guaranty that specifically enumerates the personal nature of the debt assurance is adequate to form a legal, binding personal guaranty. This Blog post seeks to identify successful defenses utilized in Florida case law to consider when drafting or seeking to enforce personal guarantees.