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.

​Cryan-Singleton Bill (S.B. 2961) mandates that, at the time the lender/servicer sends a Notice of Intent to Foreclose, a borrower must receive written notice from the lender of the option to participate in the NJ Foreclosure Mediation Program, and again when a mortgage foreclosure complaint has been filed. This notice must include information that obtaining a trained foreclosure prevention counselor is a requisite to participating in mediation, and that the borrower is not required to pay any fees to participate in the mediation program. The Notice has to be in English and Spanish. This law will be effective September 1, 2021.

FLORIDA CASE LAW UPDATES
DEMAKIS V. SUNTRUST BANK, 2D19-3751 (Fla. 2nd DCA Feb. 24, 2021).
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​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)
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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.