A common dilemma in Florida real estate litigation is preventing the property that is the subject of a lawsuit from being dissipated during the lawsuit. For example, if A invested money to purchase real estate purchased by B, and B endeavored to sell the property without providing A with his proportionate share of the sale proceeds, what could A do to prevent the sale of the property during the pendency of his lawsuit against B for breach of contract? READ MORE
Category: Real Estate Litigation
Few areas create real estate disputes in Florida more frequently than defective conveyances of Florida real estate. The topic often appears in the context of a challenge to the validity of a deed transfer after the grantor named in the deed has passed away. Of course, once the grantor is dead, he or she is no longer capable of executing a new deed to effectuate his or her wishes. Thus, beneficiaries of such a grantor’s estate usually stand to benefit from having the deed set aside, because the absence of the transfer increases the size of the estate in which they are entitled to share. READ MORE
By: Justin C. Carlin
When property (such as real estate or a building) is co-owned and not capable of being divided in half (e.g., a house cannot be cut in half without ruining the house), either co-owner may petition the Circuit Court in which the property is located to have the property partitioned—i.e., sold by an Order of the Court, with the proceeds from the sale, after payment of the costs of the sale and attorneys’ fees associated with the partition action, divided between the co-owners in accordance with his or her proportionate ownership interest in the property.
The procedures for partitioning property are set forth in Chapter 64 of the Florida Statutes. In addition, there are several appellate court decisions that have interpreted that Chapter. Taken together, the rules for partitioning property are well-defined but, unfortunately, often misunderstood or misapplied, even by experienced lawyers and judges. Moreover, some of the rules are counter-intuitive, resulting in the erroneous application of the rules by trial courts and the implementation of nonsensical strategies by lawyers initiating or defending against partition actions. These patterns are illustrated by (among other things) the frequency at which appellate courts have reversed all or a portion of trial courts’ decisions relating to the partition of property. READ MORE
By: Justin C. Carlin
There is, unfortunately, a lot of misinformation among the public regarding mortgage foreclosure cases. As an attorney who has both prosecuted and defended mortgage foreclosure cases, I believe that those holding misconceptions about foreclosures can usually be placed into two groups—those who believe that there are virtually no defenses to a mortgage foreclosure case, and those who (for whatever strange reason) believe that they are unlikely to lose a foreclosure case (despite having not paid their mortgage for months) and, therefore, underestimate a lender’s ability to foreclose. In reality, banks and lenders rightfully win the overwhelming majority of mortgage foreclosure cases, but there are occasionally times when the borrower should (and does) win a foreclosure action.
By far, the most common defense to a foreclosure action is a lender’s purported lack of standing—i.e., the claim that the lender is not the party entitled to bring the foreclosure lawsuit. (An example of standing in the non-foreclosure context: A (but only A) is injured in a car accident caused by B‘s negligence. A would be legally permitted to bring a lawsuit against B, but C could not, because he has not suffered any injury as a result of B‘s negligence. An exception might exist if there was an assignment, by which A, for value or for some other reason, transferred his claim against B to C.) Standing is a legal defense that is often frivolously asserted in a mortgage foreclosure case, but it is occasionally (more often than some would expect) validly asserted. The legal principle not only prevents a borrower from potentially being sued twice on the same debt obligation, but it also prevents an entity that is not owed funds from a homeowner from forcing the sale of the homeowner’s property in satisfaction of a debt owed to someone else. READ MORE
By: Justin C. Carlin
It’s not often that the United States Supreme Court issues an opinion that has an effect on Florida mortgage foreclosure cases, but that’s exactly what the Court did today when it issued its opinion is Jesinoski v. Countrywide Home Loans, Inc. The case involved borrowers who rescinded their mortgage documents based on the lender’s failure to make certain disclosures under the federal Truth-in-Lending Act (“TILA”). After making payments on the mortgage for nearly three years, the borrowers sent notice to the lender of their rescission of the agreement. The issue in the case was whether the borrowers’ subsequent action for a declaratory judgment (by a court declaring the mortgage rescinded) was time-barred under TILA as having been brought more than four years after the execution of the mortgage. The Supreme Court found that the action was not time-barred, because the borrowers complied with the applicable limitations agreement set forth in TILA by providing notice of their recession within three years from the execution of the loan documents.
The Jesinoski case is notable, but not just because of its holding. First, the case illustrates the tremendous protection that TILA affords to Florida consumers. Under Florida law, a contract of any kind (whether a promissory note, a mortgage, or any other kind of contract) may usually not be rescinded after the parties have changed their positions as a result of the contract. Under TILA, however, a consumer in Florida appears to have the ability to rescind the contract years after the contract is entered into. READ MORE