Blogs & Resources

For well over a century, Florida’s Constitution has made the homestead exempt from the claims of creditors. Public Health Trust v. Lopez, 531 So. 2d 946, 948 (Fla. 1988). Florida’s constitutional provisions provides one of the most debtor-friendly homestead exemptions in the country, and debtors are permitted to divert substantial assets to the purchase of new and extravagant homes that can be shielded from creditors. Florida’s Unlimited Homestead Exemption Does Have Some Limits: Part I, 77 Fla. Bar J. 60 (2003). There are, however, exceptions to the rule. This blog post will focus on one exception: the creditor’s ability to collect on homestead property located in a municipality that exceeds one-half acre.

In a standard foreclosure action, the lienholder with a first position of priority files suit to foreclose out all junior lienholders and recover the outstanding balance on a promissory note secured by the mortgage.  But what happens when a junior lienholder decides to foreclose on its lien?  The scenario is […]

Defaulted borrowers often attempt to argue that the waiver of defenses language included in loan documents is unconscionable and therefore unenforceable. However, for a contract to be held to be unenforceable under Florida law, the contract must be both procedurally and substantively unconscionable. See Golden v. Mobile Oil Corp., 882 F.2d 490, 493 (11th Cir. 1989); Gainesville Health Care Center v. Weston, 857 So. 2d 278, 284 (Fla. 1 st DCA 2003). If a contract is found to be either procedurally or substantively conscionable, then the contract is enforceable. See Eldridge v. Integrated Health Services, Inc., 805 So. 2d 982 (Fla. 2d DCA 2001)(emphasis added).

By: Charles B. Jimerson, Esq.

In 1992, Congress passed the Annunzio-Wylie Anti-Money Laundering Act (the “Act”) which requires banks to report suspicious activities to the appropriate federal authorities. Cotton v. Privatebank and Trust Co., 235 P. Supp. 2d 809, 812 (N.D. Ill. 2002). The laudable goal of the requirements contained in the Act was to encourage banks to make such reports related to criminal activities. Id. In fact, the stated purpose of the Act is to:

require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. 31 U.S.C § 5311.

Florida’s Banking Statute of Frauds was enacted in order to curb a 1980’s trend of increasing lender liability lawsuits. The enactment of this statute has made it difficult for Plaintiff’s to maintain tort based claims that might otherwise flow from the written loan documents. Typically, such claims involve oral promises pertaining to breach of an oral commitment to lend, breach of an oral agreement to refinance an existing loan, breach of an oral agreement to forbear from enforcing contractual remedies or breach of an oral agreement to take certain actions in connection with the underlying loan. By requiring that loan documents be in writing for a borrower to sue a lender on those types of claims, the Banking Statute of Frauds prevents borrowers from pursuing claims based upon oral representations or understandings. The effect of the Banking Statute of Frauds is to bar tort claims that otherwise may have been colorable under common law.

In order to state a cause of action in Florida for breach of fiduciary duty, there must exist a fiduciary duty, a breach thereof, and resulting damages. Gracey v. Eaker, 837 So. 2d 348,353 (Fla. 2002). In Doe v. Evans, 814 So.2d 370 (Fla. 2002), a fiduciary relationship was characterized as follows:

Contract reformation is an equitable remedy that acts to correct an error not in the parties’ agreement but in the writing that constitutes the embodiment of that agreement. It is designed to correct a defective or erroneous instrument so that it reflects the true terms of the agreement that the parties actually reached and, at its essence, acts to correct an error not in the parties’ agreement but in the writing that constitutes the embodiment of that agreement. The doctrine has evolved such that if a document is to be reformed, it should reflect the true intention of the parties. Florida courts employ this equitable measure in order to preserve the sanctity of the contracting parties’ negotiations and the spirit of the deal.

Occasionally we represent a bank that has multiple parcels of property to foreclose upon in order to obtain pledged collateral on a non-performing loan. Regretfully, we often have to maintain separate actions and are unable to consolidate those actions because the parcels are in different counties which lie in different […]

Most bank lending documents (and commercial contracts for that matter) contain a merger clause, which explicitly states that the agreement itself embodies the entire understanding nd agreement between the parties and further supersedes any and all prior agreements, promises, negotiations, representations, understandings, or inducements, whether express or implied, oral or written, regarding the terms of the agreement between the parties. Therefore, by the express contractual terms of the parties, the integrated agreement itself, subject to limited exceptions, will embody the entire agreement between the parties. The effect of this clause is to bar parties from reaching outside the confines of the written agreement to impose additional contractual duties upon the other party. This often becomes an issue when a claim or defense of fraudulent inducement is asserted in attempt to vitiate an integrated document. This blog post will endeavor to analyze the interplay of a fraud in the inducement defense/claim with a merger clause.

By Austin Calhoun, J.D. 2013

It takes on average 600 days for a party to litigate a foreclosure through trial in Florida. Successful summary judgment motion practice may squeeze that time down to as little as 180 days. Even better, under the proper conditions, a diligent plaintiff can shorten foreclosure time down to less than 60 days by properly utilizing Florida Statute 702.10. If you’re interested in bypassing the foreclosure log-jam to obtain a speedy foreclosure – read on.