News from the short sale front: more problems from Bank of America

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approval, authorization, Bank of America, boa, foreclosure, hafa, mortgage, negotiator, sale, servicer, short, short sale

News from Title Express:  BOA assigning loans to new servicers – short sale files closed out.    Mortgage brokers no longer authorized to communicate with BOA  on short sales starting April 14, 2012

Tort Liability

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Casualty, damages, florida, injury, LANDLORD, liability, notice, personal, repair, TENANT, tort

Black’s law dictionary defines a “tort” as denoting a wrong or wrongful act, for which an action will lie. When can a landlord’s failure to perform repairs become a tort ?

 In  the case of  FISHER  vs.  PEARSON,  [ Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 06-003536 CACE (04). October 27, 2008,  16 Fla. L. Weekly Supp. 426a],  the tenant moved into an apartment September 1, 2003.   There were no apparent defects. On the morning of February 5, 2004, the tenant noticed a leak in the living room ceiling.  The tenant notified the  landlord  of the leak.   Within a few minutes of notifying the  landlord  of the leak the ceiling collapsed onto the tenant.   The tenant sued the  landlord  for the injuries.  The court granted summary judgment in favor of the landlord as the landlord had not been notified of the condition in time to remedy it.

Notice of lease violation

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83.56(2)(b), arrest, conviction, crime, cure, florida, incurable, LANDLORD, lease, notice, seven day, TENANT, unauthorized occupant, violation

The landlord’s seven-day notice of lease violation alleging unauthorized boarders was held  defective for failing to provide the tenant with an opportunity to cure and also  for alleging that the unauthorized boarder was arrested without indicating that boarder was engaged in criminal activity — Mere arrest is not tantamount to criminal activity or violation of lease.

1. Defendantl Warren, (hereinafter “Ms. Warren”) occupies residential real property owned by Plaintiff, Miami-Dade County, under a public housing lease.

2. Plaintiff filed a complaint for eviction against Ms. Warren on November 11, 2010, based upon a 7-Day Notice of Termination.

3. Plaintiff’s 7-Day Notice of Termination states in pertinent part: “Ms. Warren you have two unauthorized boarders living in your unit who are not listed on your public housing lease. One was arrested at your unit on 10/22/2010 for Violation of Probation due to Possession of a loaded gun which was in plain sight on the nightstand (No Permit for Gun). The arrestee gave the arresting officer Ms. Warren’s address as her place of residence.”

4. Proper statutory notices must be provided for each violation alleged by Plaintiff in the complaint.

5. Plaintiff’s 7-Day Notice of Termination is defective as it failed to provide Ms. Warren with an opportunity to cure regarding the allegation of unauthorized persons.

6. In accordance with Section 83.56(2)(b), Florida Statutes,  an unauthorized person residing in a public housing unit is the type of non-compliance for which a tenant should be given an opportunity to cure.

7. Plaintiff’s 7-Day Notice of Termination is also defective as it alleges that the unauthorized person was arrested with a crime and does not indicate that the person has engaged in criminal activity.

8. Plaintiff cannot evict a public housing tenant for criminal activity when the only allegation is that the person has been arrested. Merely being arrested is not criminal activity and is not a violation of the lease.

9.  As the notice of termination was defective, Plaintiff’s complaint for eviction is dismissed.

MIAMI-DADE COUNTY, v. WARREN, . County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-18626 CC 05. June 16, 2011. Online Reference: FLWSUPP 1905WARR

If it looks like a duck ….

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contract for deed, eviction, florida, foreclosure, LANDLORD, lease, lease option, mortgage, TENANT

The “duck test”  is defined as  “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.”

The court found that a written “Real Estate Lease”  which required tenant to make regular monthly payments to landlord; to reimburse landlord  for one-twelfth of his annual insurance premiums, property taxes, and mobile home registration expenses; and to maintain and repair subject dwelling unit and real property; and which further gave tenant  option to purchase at end of twelve-year term for specified sum constituted a contract for deed, rather than a lease.  A contract for deed is excluded from eviction procedures provided under Landlord-Tenant Act.    Eviction complaint dismissed for lack of jurisdiction.

Possession of  real property under a contract for deed  is tantamount to a mortgage and subject to the same rules of foreclosure and the same regulations and restraints as mortgages generally. Ziegler v. Hawkins, 315 So2d 200 (Fla 1st DCA 1975); H & L Land Co. v. Warner, 258 So2d 293 (Fla 2nd DCA 1972; and Cook v. Merryfield, 335 So2d 297 (Fla 1st DCA 1976).   Therefore “Landlord’s”   complaint to evict “Tenant”  is dismissed.

BUYER’S ADVANTAGE FINANCE CO., INC.,   v. MORSE,. County Court, in and for Santa Rosa County, December 3, 1996.  4 Fla. L. Weekly Supp. 475c.

Foreclosure dismissed where verification of complaint was signed by a person who was not identified as related to plaintiff

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complaint, florida, foreclosure, Mortgages, Verification

Effective February 11, 2010, Florida Rule of Civil Procedure 1.110(b) requires plaintiff seeking to foreclose a residential mortgage to verify the complaint. In addition, any verification of a foreclosure complaint must be in conformity with Section 92.525, Florida Statutes (2011), as construed by Muss v. Lennar Florida Partners, 673 So. 2d 84 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D849b]. The Supreme Court indicates in its opinion that one of the primary purposes of the rule change is to have the plaintiff appropriately investigate and verify its allegations. In re Amendments to The Florida Rules Civil Procedure, 44 So. 3d 555 (Fla. 2010) [35 Fla. L. Weekly S317a].

The purported verification in this action was signed by a“Debra Blaney,” who was not represented or identified in any way to be connected or related to the Plaintiff. There is no statement or allegation in the complaint or the verification indicating that Ms. Blaney has knowledge of the matters alleged in the complaint or is authorized to verify the complaint on the Plaintiff’s behalf.  Consequently,  the court finds that the complaint filed by Plaintiff in the instant action is not verified in accordance with Rule 1.110(b).   The court continued Defendant’s Motion for Fraud on the Court for an evidentiary hearing, but granted Defendants Motion to Dismiss the foreclosure complaint with leave to amend within 60 days

US BANK NATIONAL ASSOCIATION, As TRUSTEE FOR THE STRUCTURED ASSEST SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES, 2006, BC 4, Plaintiff, vs. STOKES.  Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2011-CA-2233-XXXX, Division FC-F. February 8, 2012. Online Reference: FLWSUPP 1905STOK

Foreclosure judgment vacated where plaintiff was assigned mortgage & note after complaint filed

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assignment, florida, foreclosure, Mortgages, standing

Where record shows that plaintiff did not obtain standing through assignment of note and mortgage until after foreclosure complaint was filed, motion to vacate final judgment of foreclosure is granted

My tenant is dead. Now what do I do ?

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83.59(d), dead, death, deceased, florida, florida landlord tenant dead 83.59(d), LANDLORD, probate, TENANT

 Florida Statues §83.59(d) provides that if the only tenant has died, the rent is unpaid, and sixty days  has elapsed and the landlord has not received a notice of probate, the  landlord automatically recovers possession.   Abandoned property shall be dealt with as per the lease terms or statute.  The law does allow you to execute an abandoned property agreement which would allow you to automatically dispose of the tenant’s belongings.  This must be executed as an addendum to the lease.

NOTE HOLDER HAS STANDING TO FORECLOSE

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assignment, florida, foreclosue, mortgage, note, promissory, standing

Appellate court rules that Bank that was in actual possession of the promissory note had standing to foreclose even though there was no valid assignment of mortgage

Title insurers reject mortgage terminator judgments

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florida, foreclosure, judgment, law suit, mortgage, terminator, title insurance

Old Republic Title Insurance issued the following directive to its title insurance agents:

“A Fund Member should not close and insure any transaction where the title search  and examination depends upon the outcome of a lawsuit seeking to extinguish an outstanding mortgage without obtaining approval from The

Fund’s Legal Underwriting Department.”

“There remains a significant body of precedent that suggest that these terminator judgments would not operate as res judicata or law of the case in a subsequent proceeding filed by the mortgagee to enforce the mortgage.”

 

Fund Concept March 2012