FLORIDA CASE LAW UPDATES
DEMAKIS V. SUNTRUST BANK, 2D19-3751 (Fla. 2nd DCA Feb. 24, 2021).
​
​The Court held it was error to grant summary judgment in favor of the bank seeking to foreclose on a HELOC because the HELOC was not authenticated. A HELOC was not self-authenticating because it is not a negotiable instrument. An unauthenticated HELOC would not have been admissible evidence at trial and, as such, it was not a sufficient basis for a summary judgment.

FLORIDA CASE LAW UPDATES
SAAVEDRA V. UNIVERSAL PROP. & CAS. INS., 5D19-2176 (Fla. 5th DCA Feb. 21, 2021)
​
The Court reversed summary judgment in favor of the insurer that had denied, in its responsive pleading, the insured had complied with conditions precedent. The Court held that pursuant to Fla. R. Civ. P. 1.120(c), in denying that conditions precedent were met, a defendant is required to identify both the nature of the condition precedent and the nature of the alleged noncompliance or nonoccurrence. The purpose of the rule is to put the burden on the defendant to identify the specific condition that the plaintiff failed to perform so that the plaintiff may cure the omission. If satisfaction of the condition precedent is not denied with specificity, it is waived, as it was by the insurer in this case.

FLORIDA CASE LAW UPDATES
Valencia v. PennyMac Holdings, 3D20-1727 (Fla. 3rd DCA Feb. 17, 2021).

​The Court dismissed a borrower’s petition for writ of certiorari that sought to quash a circuit court order allowing the borrower to videotape a deposition of the substituted plaintiff's corporate representative, but prohibiting the petitioner from “disseminating, publishing, distributing, or using the records (written, audio, and visual) of U.S. Bank’s corporate representative outside of this litigation.” The Petition was dismissed for failure to demonstrate irreparable harm that could not be remedied on direct appeal. With respect to the Petitioner’s argument that the lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials.

FLORIDA CASE LAW UPDATES
WELLS FARGO BANK V. DIAS, 2D19-3256 (Fla. 2nd DCA Feb. 12, 2021).

​The Court held a party who purchased the property at a homeowners association lien foreclosure sale during the pendency of a senior lien mortgage foreclosure action had no standing to raise the mortgagor’s forgery defense at trial in the foreclosure action (the mortgagor did not participate at the trial). There is a presumption that the mortgagor’s signature on the note and mortgage is authentic. The Court also rejected the third-party purchaser’s argument that the lender was required to prove the mortgagors’ continued marriage (the property was held by the mortgagors as tenants by the entireties) to prevail against them on its foreclosure claim.

FLORIDA CASE LAW UPDATES
U.S. BANK TRUST, N.A. V. DICK, 2D19-3998 (Fla. 2nd DCA Feb. 5, 2021).

​The Court held the assignments of the note and mortgage introduced by the substituted plaintiff at trial were sufficient to warrant denial of defendant's motion for involuntary dismissal for lack of standing, notwithstanding defendant's assertion that the most recent assignment to the plaintiff was invalid if not fraudulent. In moving for involuntary dismissal, the borrowers were required to admit as true all of the facts in evidence, including the representations made in the assignments and every reasonable conclusion or inference that could be drawn from them favorable to the lender. Further, the plaintiff introduced the original note into evidence at trial, which established plaintiff’s standing to enforce it.

MINNESOTA CASE LAW UPDATE
Stuckey v. Gislason & Hunter LLP (D. Minn. 2021)
The US District Court in Minnesota issued a favorable order for creditors on January 12, 2021 in Stuckey v. Gislason & Hunter LLP. Facts of the case include, plaintiff’s as mortgagors and foreclosing Law Firm as a defendant. Law Firm sent out a letter with a Notice of Default and a pre-foreclosure notice to Plaintiff’s.

Plaintiff’s alleged that the Law Firm violated the FDCPA (15 U.S.C. § 1692 et seq.). Law Firm moved to dismiss for failure to state a claim under Rule 12(b)(6), arguing it is not a debt collector and therefore not subject to the FDCPA. Additional, Law Firm contends Plaintiff’s did not plead sufficient facts to establish it is a debt collector under the limited purpose definition in 15 U.S.C. § 1692(f)(6). The court threw out the argument that Law Firm was a debt collector, relying on the recent Obduskey precedent, “those who engage in only nonjudicial foreclosure proceedings are not debt collectors within the meaning of the Act”.

Plaintiff’s claims include, Law Firm attempted to collect more than the secured-claim amount owed, sent pre-foreclosure notices directly to plaintiffs represented by counsel, and notifying a foreclosure-prevention agency of the debt. The first claim was thrown out for failing to plead sufficient facts to state a claim, and plaintiff’s amended complaint listed the secured claim amount exactly as in the notice. The second claim was thrown out because Plaintiff failed to cite any post-Obduskey authority that Law Firm was acting as a primary-purpose debt collection, and that the notice was sent pursuant to state statutory requirements with counsel being copied. The final claim was also thrown out because Plaintiff’s failed to establish Law Firm was a primary purpose debt collector, and sent the homeowners name, address and phone number to foreclosure prevention agencies as required by state statute. 
Ultimately, the court found that the Law Firm commencing non-judicial foreclosures was not a debt collector under the primary purpose of the FDCPA. Even if a debt collector for the limited purposes of 15 U.S.C. § 1692(f)(6), complying with state statutes do not amount to FDCPA violations.