FLORIDA CASE LAW UPDATES
WELLS FARGO BANK, N.A. V. TAN, 4D20-613 (Fla. 4th DCA May 5, 2021) 

The Fourth District agreed with the trial court that the foreclosure judgment in favor of a junior mortgagee was void as to a senior mortgagee whose mortgage had been recorded before that of the junior mortgagee. In addition, the trial court erred in finding that the senior mortgagee’s motion to vacate that foreclosure judgment was not timely filed, as a party may move to vacate a void judgment at any time. Nevertheless, the Fourth District affirmed the order denying the senior mortgagee’s motion to vacate judgment because it also agreed with the trial court that section 702.036, Florida Statutes, barred the court from vacating the judgment where the vacation of judgment would adversely impact the quality and character of title to the property since that property had been purchased by bona fide third parties after the foreclosure sale. Document Link 

FLORIDA CASE LAW UPDATES
PALMER V. HMG VENTURE PARTNER, LLC, 5D20-956 (Fla. 5th DCA May 7, 2021) 

In this Per Curiam affirmed case, Judge Cohen, in his special concurring opinion, explained the appellant, Palmer, argued the trial court abused its discretion by failing to grant him an evidentiary hearing on his timely objection to the bid amount under section 45.031(8), Florida Statutes. The judge, citing to precedent, noted that as a general proposition, mere inadequacy of price standing alone is not a basis to set aside a judicial sale. Because the only allegation in Palmer’s affidavit was the mistake in failing to attend the foreclosure sale, it was wholly inadequate to necessitate an evidentiary hearing on his objection. Document Link

FLORIDA CASE LAW UPDATES
WATERS V. WILMINGTON TRUST, N.A., 4D20-397, (Fla. 4th DCA May 26, 2021).​

In a per curiam opinion, the Fourth District reversed the trial court’s order denying the homeowner’s motion for attorney’s fees under section 57.105(7), Florida Statutes (providing reciprocal attorney’s fees to the other party to a contract who prevails in a suit regarding that contract which provides fees for its enforcement). The Court explained the Lender confessed error (a way of consenting with the homeowner on appeal that the order denying fees should be reversed) based on the Florida Supreme Court’s recent holding in Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953 (Fla. 2020). However, the Fourth District characterized the Page holding as one which stands for the proposition that a mortgagor who prevails in a foreclosure action based on the plaintiff’s lack of standing at the time the lender filed the foreclosure action was entitled to prevailing party attorney’s fees. Moreover, the Court described the Lender’s confession of error as acknowledging the mortgage provided for “prevailing party attorney’s fees,” and that based on Page, the homeowner was entitled to fees for successfully defending the case in the trial court. Nevertheless, the standard residential mortgage form is bereft of any provisions that provide prevailing party attorney’s fees. This decision adds to the confusing jurisprudence regarding a borrower’s entitlement to attorney’s fees under section 57.105(7) when that borrower prevails by either showing the plaintiff did not prove standing or successfully proving a lack of standing defense. Document Link

FLORIDA CASE LAW UPDATES
WILMINGTON SAV. FUND SOC'Y FSB V. MORRONI, 2D20-3085 (Fla. 2nd DCA May 28, 2021).

The Second District held that the trial court erred in denying the plaintiff’s motion for the return of the loan documents in the court file following its unsuccessful foreclosure action based on the trial court’s mistaken conclusion that the appellate court, in reversing judgment for the plaintiff, had found that the documents were not the originals. The appellate court only ruled that the plaintiff failed to carry its burden of proof that the note and the allonge it tendered were originals, not that the note and allonge were not actually originals. Moreover, there was no judgment cancelling the note. Absent such a judgment, the plaintiff was entitled to the return of its property. Document Link

FLORIDA CASE LAW UPDATES
CASTELLANOS V. REVERSE MORTG., 3D20-472 (Fla. 3d DCA May 12, 2021) 
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The Third District ruled that to the extent its decision in Suchman Corp. Park, Inc. v. Greenstein holds that, as matter of law, the reciprocity provision of section 57.105(7), Florida Statutes cannot apply to authorize an award of attorney’s fees to a prevailing borrower on an underlying nonrecourse loan (because the borrower under such a loan would have no personal liability for those fees), such a holding has been implicitly overruled by the supreme court’s recent decision in Page v. Deutsche Bank Tr. Co. Ams. The Court remanded the case for the trial court to enter an order finding the prevailing borrower was entitled to fees under section 57.105(7) and for further proceedings. Document Link​

FLORIDA CASE LAW UPDATES
​VALLS V. HSBC BANK USA, N.A., 4D20-1984 (Fla. 4th DCA May 12, 2021) 
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The Fourth District, on the Lender’s confession of error to the Borrower’s argument that he was entitled to an evidentiary hearing on his objection to sale, reaffirmed Florida law (§ 45.031(8), Fla. Stat.) that if a timely objection to sale is lodged, the court must hold a hearing on that objection prior to the issuance of a certificate of title to the successful bidder. Document Link

FLORIDA CASE LAW UPDATES
​REFAIE V. BAYVIEW LOAN SERVICING, 2D19-4780 (Fla. 2nd DCA May 14, 2021)

Pursuant to section 45.032(3), Florida Statutes, the Second District held the issuance of the certificate of disbursements triggers the running of the 60-day period for filing claims to surplus monies following a foreclosure sale. To conclude otherwise, the Court held, would produce inconsistent application of sections 45.031(7)(b) and 45.032(3). Here, the incorrect legal description and property address on the certificate of title did not invalidate the foreclosure or conveyance of the property because no error occurred prior to entry of the final judgment of foreclosure. All relevant documents preceding the certificate of title contained the correct property address and legal description and all parties were on notice of the foreclosure proceedings and sale of the property. The junior lienholder’s initial motion for surplus proceeds, filed more than 60 days after the filing of the certificates of disbursements, was untimely. The trial court erred by granting the renewed motion for surplus because the initial motion was untimely. Document Link​​

The bill clarifies recording requirements for clerks with and without eRecording Systems in place. If eRecording system is in place,  the clerk shall follow the provisions of the Uniform Real Property Electronic Recording Act. The bill further provides that if a clerk does not have an eRecording System, the clerk shall record a legible paper copy of an electronic document, provided that such copy otherwise meets the requirements for recordation and is certified to be a true and accurate copy of the electronic original by the party who submits the document for recordation. 

Additionally, the bill requires an electronic notarial certificate to include the county or city in the Commonwealth where the notary public was physically located and indicate whether the notarization was done in person or by remote online notarization, defined in the bill as an electronic notarization where the signer is not in the physical presence of the notary. The bill also adds additional forms of "satisfactory evidence of identity" when a notary is using video and audio communication. Document Link

The new state bill is increasing the period for a foreclosure sale notices from 14 to 60 days and is requiring such notices to include information about the housing counseling. It also requires that an affidavit signed by the party that provided notice of the sale to the owner confirming that such notice was sent to the owner, with a copy of such notice attached to the affidavit. The foreclosure-related notice requirements will go into effect on October 1st, 2021.

This bill also provides several additional protections to the owners and tenants of manufactured homes, including restrictions for enforcement of judgment liens when the debt is less than $25,000 and providing additional notices about state housing rights and counseling.

Servicers shall be aware that the modified pre-foreclosure sale notice requirements will extend the overall foreclosure timelines. Document Link

​The Pennsylvania Housing Finance Agency sent out an email blast to lenders’ counsel stating that if monies designated under PMAP (the Pandemic Mortgage Assistance Program) can’t be applied to the months designated under the program by the lenders, the funds are to be returned. Please contact Christopher DeNardo for assistance in PA and NJ.