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It seems that recently, every attorney is practicing foreclosure defense. The problem is that not many of them are knowledgeable enough in the area to be worth the money they charge their clients. The reason for the large increase of attorneys practicing foreclosure defense is simply that there the need for foreclosure defense is in high demand. With so many active foreclosure cases, many lawyers have decided to take a shot at practicing foreclosure defense even though they have never practiced in that area of law before. This raises several problems, the greatest of which is bad lawyering. I have spoken to many potential clients that are not happy with the way their case has been handled. I am usually shocked after reviewing the case file and seeing how much needs to be fixed to properly protect the client. This usually results in the case becoming more expensive for the client than it would have been if their lawyer was properly representing them. Bottom-line, before you hire any attorney to defend your foreclosure case, ask them about their experience. Ask them how many cases they have handled. Ask them how many motions for summary judgment they have defended and what the results have been.

At the Morey Law Firm, P.A., we can help determine your options and legal rights if you are in foreclosure. If you live in Orlando or the surrounding area, call to set up your consultation today!

1. DO gather as much information about your prospective tenants as possible.

As a landlord, you need to make sure you gather as much information as possible about your prospective tenants. This information can prove to be valuable both before the move in and after the move out. Before the move in you want to make sure you have researched who it is that you are renting to. Several websites offer inexpensive background checks geared specifically for landlords. Make sure to make copies of identification cards and if possible, get their social security number. In the event that the tenants cause damage beyond what the security deposit can cover, this information can help you locate a tenant in the future. All too often landlords are left footing the bill for damages to their property because they did not collect enough information to be able to locate the tenant after they’ve moved out.

2. DO make sure your lease is specific and thorough.

A poorly put-together lease can be a landlord or tenant’s worst nightmare. Remember, the entire landlord/tenant relationship is structured and guided around what the lease says. A proper lease should be very specific as to what each parties’ responsibilities are, and what they are not. It should specify how, and in what form, letters and notices should be delivered between the parties. And it should provide specific terms regarding the duration of the lease, rent installments, or other types of restrictions.

3. DO NOT resort to “self-help.”

If you have a tenant who is behind on rent, do not try to take the law into your own hands. Florida has very specific laws in place for dealing with the eviction of a tenant. Florida also has very strict penalties in place for those landlords who resort to “self-help.” The term “self-help” is used to describe a landlord’s actions when they resort to changing the locks, cutting off utilities, etc. Your best bet is to find a competent landlord/tenant attorney in your area and speak with them before taking any action on your own. Keep in mind that if you try to file an eviction on your own, and that eviction is dismissed because of an error on your part, you may be liable for the other parties’ attorneys’ fees.

4. DO NOT forget to send the tenant notice if you plan on keeping any portion of their security deposit.

It’s not uncommon for a landlord to keep a portion, if not all, of a tenant’s security deposit to cover the cost of damages or cleaning costs for the property. However, once a tenant moves out of the property the clock starts ticking. Florida provides specific deadlines within which a landlord must return the deposit in full or provide the tenant with notice of their intent to impose a claim on the security deposit. The notice requirements and time-frames provided in Florida law must be complied with in order to avoid the possibility of future litigation.

*Please note that the Protecting Tenants at Foreclosure Act of 2009 is set to expire on December 31, 2014*

During the foreclosure crisis, numerous renters in good standing have been forced to relocate after a foreclosure sale with little or no notice. To address this critical problem and to stabilize neighborhoods, Congress passed the Protecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, §§701 – 704 (2009). This law immediately went into effect when President Obama signed it on May 20, 2009, and it applies to all pending and future residential foreclosures.

Prior to the enactment of this law, foreclosure automatically extinguished any leases on the property and the purchasers of the home at auction could immediately evict the tenant. The law now allows for a lease to survive the foreclosure action, meaning “bona fide” tenants can stay at least until the end of their lease, or in the case of a month-to-month lease, tenants are entitled to 90 days’ notice before having to move. However, an exception was created when the buyer of the foreclosed home intends to use the property as his/her residence. If the buyer intends to live in the property, the buyer may terminate the lease with 90 days’ notice. Overall, the new law affords greater protections for tenants in that at least some tenants will be able to remain in their homes until the end of their lease, or will at a minimum be given 90 days’ notice to relocate.

The law has also afforded protection to landlords in a roundabout way. Tenants with leases will have no legal recourse against their former landlords because their lease survives and ends as if there had been no foreclosure. Similarly, tenants with month-to-month leases will have no legal recourse against their former landlords because month-to-month leases may always be terminated with proper notice, and 90 days is much longer than the 15 days required by Florida law. However, a tenant with a lease who is forced to move out so the new owners may move in might consider suing their former landlord in small claims court for relocation and moving expenses, applications fees, or the difference, if any, between the new rent for a comparable rental and the rent under the old lease.

As a recently enacted law many landlords and/or tenants may not be aware of its requirements and it is still uncertain how the act will be enforced by the courts. We can help! At the Morey Law Firm, P.A., we can help you determine your legal rights and defend you in a lawsuit if necessary. If you live in Orlando or Central Florida, call us today at (407) 426-7222 to set up your consultation!

Subrogation is the legal process by which an insurance company seeks reimbursement after it has already paid a claim for an accident on behalf of its insured.

For example, if a person caused an auto accident and did not have insurance at the time, the injured driver’s insurance company would pay the injured party for property damage and/or bodily injury. The insurance company would then seek to collect from the at-fault driver the amount it pays to the injured driver. Usually, this means that the insurance company will sue the at-fault driver to obtain a judgment for the amount it paid.

Subrogation can also occur if you were in a car accident and filed a property damage claim with your insurance company, your collision insurance, and comprehensive auto insurance would pay to have your vehicle fixed. If the accident was later determined to be the fault of the other driver, however, your insurance company would file for reimbursement against the other driver’s auto insurance policy.

Keep in mind that most attorneys will not represent the at-fault in a subrogation lawsuit. However, at the Morey Law Firm, P.A. we have represented many at-fault drivers in subrogation lawsuits. If you are being sued by an insurance company for a subrogation claim, we can help! Learn more about how our Florida Subrogation Defense Attorneys can help you. Contact us today at (407) 426-7222 to determine your rights. We will zealously defend you against the insurance company. As part of our representation, we will also attempt to determine whether you were actually at fault for the accident and determine whether the other driver actually suffered property damage and/or bodily injury. If your insurance company denied the claim, we will communicate with them in an attempt to have them provide coverage. If all else fails, we will attempt to negotiate a settlement. 

The term subrogation comes from the Latin word “subrogare,” which means to “stand in the place of.” If you are not responsible for an auto accident, you have the legal right to sue the negligent driver. If you accept payment for damages from your insurance company, however, you transfer this right. Subrogation means the insurance company can sue on your behalf.

In the insurance business, subrogation is the last step in the claims process, and because of this many drivers stop worrying about a property damage claim after they get their vehicles repaired; however, subrogation is necessary to help keep costs down.

For example, if your car insurance company pays for a claim that is the legal responsibility of someone else, it causes an unnecessary increase in your rates. In addition, if you have a deductible on your policy, you could have out-of-pocket costs ranging from $100 to $1,000 or more. Recovering this money through the subrogation process allows your insurance company to reimburse you for your deductible payment.

After an auto accident, your insurance company must tell you if it is planning to pursue subrogation. If it pursues subrogation, repayment of your deductible must be part of the process. If it is not planning subrogation, you still have the option of trying to recover the deductible on your own.

Typically, your insurance policy requires you to cooperate with the company’s subrogation efforts. You are not legally allowed to take any action that would jeopardize your auto insurance company’s right of recovery, such as signing an agreement that would release the negligent driver from liability in exchange for the payment of your deductible.

If you were responsible for an auto accident and did not have the proper car insurance coverage, you will want to contact an attorney if a claim is being subrogated against you. This process can be very involved and is difficult to handle on your own. Having the assistance of a legal professional will help you make sure your rights are protected. At the Morey Law Firm, P.A. we can help! Contact us today at (407) 426-7222 for a consultation to determine your rights.

One of the most frequent questions we are asked at the Morey Law Firm, P.A. is, “will I get alimony,” or “how much alimony will I get.” To answer these questions, there are many factors we must consider.

A party receiving alimony is called the payee and the person paying alimony is the payor. The most basic determination the court will make in awarding alimony is whether payee’s has a need for alimony and whether the payor has the ability to pay. This will be based on each party’s finances. Once the court determines that there is a need and an ability to pay, it will need to consider many other factors, including the length of the marriage. There are many types of alimony. The longer the marriage, the more likely it will be that permanent alimony will be awarded. Section 61.08 of the Florida Statute deals with alimony. Subsection (2) states:

In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.

In alimony situations, the most important thing for you to do is contact a reputable family law attorney. If you try to represent yourself (pro se), you will probably not be happy with the results and will have to live with the consequences for a long time.

At the Morey Law Firm, P.A. we can help! We can consider your situation and help you determine your rights regarding alimony. Contact us today at (407) 426-7222 for a consultation to determine your rights.

We get asked this question a lot. He is the answer I usually give:

In order for a landlord to be entitled to make a claim on any portion of your security deposit two things need to happen: 1) your lease must provide for the security deposit being used for the purpose it is being used for and 2) the landlord must provide the proper notice under Chapter 83 of the Florida Statutes. Section 83.49(3)(a) states: Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to . It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address). If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.

If the landlord does not voluntarily return your full security deposit, whether through communication with you or your attorney, you will need to sue them for it. You are entitled to prevailing party attorney’s fees in that suit. However, if you sue them, be prepared for a countersuit for damage to the property if there is any. That’s because the landlord is still entitled to go after you for damages to the property even though he/she may have waived their rights to the deposit itself.

One last thing you need to be aware of, Section 83(5) states: Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

At the Morey Law Firm, P.A., we can help you determine your rights to your security deposit. If you live in Orlando or the surrounding area, call (407)-426-7222 to set up your consultation today!

Please click this link to get the whole story: http://www.youtube.com/watch?v=NbxQpCq21l0

TALLAHASSEE – With Florida among the slowest states to wade out of the post-boom foreclosure morass, lawmakers in Tallahassee have proposed a number of bills to speed up the process of property seizures.

Two that have the backing of both the state’s banking industry and Florida Realtors, are House Bill 87 and Senate Bill 1666, sponsored by Naples Republican Kathleen Passidomo and Sen. Jack Latvala, R-Clearwater, respectively.

Both would accelerate the judicial foreclosure process for the benefit of lenders and real estate alike.

Another, HB 1777, would create a homeowner “bill of rights” in the event of late mortgage payments, similar to a law passed in California last summer. That bill is sponsored by Rep. Mark Danish, D-Tampa.

“The reality is that in this Legislature, the power structure seems less concerned about protecting the homeowners than about simply pushing foreclosures through as rapidly as they can,” said Alice Vickers, an attorney who lobbies on behalf of the Florida Consumer Action Network.

In Florida last year, 3.1 percent of all housing units—or one out of every 32 homes—were subject to a foreclosure filing, the highest state rate in the nation.

In Southwest Florida, banks’ rush to refile cases derailed by federal legal action has sent the region’s courts’ foreclosure dockets back into overdrive. Filings in 2012 surged 70 percent from the previous year. Many had been previously dismissed as a result of inadequate paperwork or fraudulent bank practices.

The 12th Judicial Circuit, composed of Sarasota, Manatee, and DeSoto counties, now has roughly 16,000 cases—1,000 more than it did two years ago when the economy was substantially worse.

HB 87 would shorten the statute of limitations on deficiency judgments, to one year from five.

A deficiency judgment occurs when courts rule in favor of lenders, if they can show that borrowers owe more on a mortgage than a property has sold for.

But consumer advocates say another feature would prove more troublesome, with the bill putting the burden of proof on borrowers to show why a lender should not win an expedited foreclosure from a judge.

Passidomo says the provision “preserves all appropriate due process rights protecting borrowers. It eliminates unnecessary court hearings, and it permits community associations standing to participate when there are delinquent assessments due.”

The bill also would be retroactive, which has raised the ire of foreclosure defense attorneys.

“Say you’re already fighting a foreclosure in court,” said Charles Gallagher III, a St. Petersburg attorney. “If this passes, even though the bill wasn’t in effect when your case started, all of a sudden you’d have a new burden and new guidelines. The bill itself is very bank-friendly, and revokes a whole lot of procedural protections.”

But the Florida Bankers Association said the bill would accelerate a stymied process.

“Our position is, once we start the foreclosure proceeding, the faster we can complete it, the faster the property can get sold,” said Anthony DiMarco, the association’s executive vice president of government affairs.

Delinquent borrowers now can live rent-free in homes where mortgages are in default for months at a time, and delay foreclosure hearings or force actions to trial, DiMarco said.

The association is hoping to negotiate a longer time period for filing deficiency judgments.

“We understand they want to go down, but we think going from five years to one is too much of a change,” DiMarco said.

Florida Realtors also supports HB 87. The group says that it would help neighborhoods plagued by foreclosed and empty homes, and also prop up house and condo values.

“We think it provides protections for homeowners and allows for faster foreclosures,” said Trey Goldman, the group’s legislative counsel.

‘More certainty’

Another HB 87 provision mandates that even if an appeals court determines that a homeowner was erroneously foreclosed on, they could not get their property back as part of a judgment. Instead, those borrowers would be entitled only to a monetary payment.

“We think that will bring more certainty to the market,” said Goldman.

HB 87 also would enhance condo and homeowner associations’ standing in legal proceedings.

“This is going to help them, which is important to all the members of the association,” Goldman said.

Senate Bill 1666 is roughly parallel in its reforms, but it adds two other important measures.

It would make the appointment of retired circuit court judges as foreclosure judges more permanent. The practice has been used extensively in the 12th Circuit, hard hit by foreclosures.

The Senate bill also eliminates the requirement that property owners be notified a second time about a pending foreclosure in a print newspaper advertisement.

Instead, that second publication requirement could occur on a publicly accessible website, such as a clerk of the court site, in lieu of other media.

Foreclosure defense attorney Matt Weidner, another St. Petersburg attorney, calls that aspect of the bill “troubling.”

“Particularly with these lower income folks, the only way they found out they were being foreclosed upon is in a newspaper,” Weidner said.

As the Legislature kicked off its annual session Tuesday, other bills pertaining to foreclosures are also circulating.

Orlando Senator Darren Soto, D-Orlando, has several.

His SB 1228, a “Short Sale Debt Relief Act,” would make deficiency judgments unenforceable on a short sale if the original debt was 20 percent or greater than fair market value.

But Weidner, the St. Petersburg attorney, contends many of the new bills would be superfluous.

“The problem in foreclosure court is not that pesky defense attorneys are holding up the procedure, and it is not that the courts are not doing their job or that the existing laws don’t work,” said Weidner, who along with other attorneys has formed Florida Consumer Justice Advocates, to fight some of the reform bills.

“The foreclosure problem is the banks, choosing not to complete foreclosures,” he said. “They don’t want to. They realize it is better to negotiate or get a short sale done.”
Originally published in the Herald-Tribune (By Michael Pollick Published: Tuesday, March 5, 2013 at 8:49 p.m.)

Thousands of homes languishing in foreclosure are a real problem for Florida. But lawmakers aiming to clear the logjam should resist legislation that would speed up the legal process at the expense of consumers.

Instead, resources should be directed toward rectifying unfair loan practices; helping “underwater” homeowners; assisting condominium and homeowner associations as they deal with foreclosure-related maintenance gaps; and boosting legal aid and court staff.

A bill–HB 87–now moving through legislative committees addresses some of these problems. On the whole, however, the measure poses too much risk for consumers.

HB 87 has gained lopsided favor in two committee reviews. It contains some important benefits for lenders and for foreclosed homeowners, but members of the public spoke against it–sharply–at a hearing last week before the House Justice Appropriations Subcommittee.

Those speakers’ concerns about lender abuses, unconstitutionality, and unfairness are too significant to ignore.

A question of defense

HB 87 aims to accelerate foreclosures in which the homeowner has “no defense,” as supporters of the legislation put it. These suits would still undergo judicial review but in more streamlined fashion.

Opponents warn that, in some cases, the problem isn’t homeowners’ lack of a defense; it’s their difficulty proving lender misdeeds and errors that contributed to defaults. The faster timeline under HB 87 could deprive them of needed processes to get documentation and make their case.

It’s a compelling complaint, even though other parts of HB 87 are praiseworthy. Those include, for example, redress for affected condo and homeowner associations, which are harmed by lingering foreclosure battles that deprive the groups of needed maintenance funds.

HB 87 also would reduce foreclosed homeowners’ exposure to “deficiency judgments,” which can saddle them with additional debts after a foreclosure is final.

Supporters of the legislation say it will “serve the greater good,” which is true in some respects.

But it’s hard to ignore warnings from consumer advocates and bankruptcy attorneys who say the bill is particularly outrageous in that it shifts the burden of proof from plaintiffs–the lenders seeking to foreclose–onto struggling homeowners. Considering the many instances unearthed in recent years of error and fraud by the mortgage industry–remember robo-signing?–this could be a big mistake.

Legal-aid services swamped

It also seems to assume that homeowners shouldering debt problems–sometimes because of unpredicted job loss, illness or lenders’ predatory practices–understand the foreclosure process and can afford a lawyer. Both are faulty assumptions; legal-aid services are overwhelmed with requests for help.

As critics point out, Florida already has a legal avenue for expedited foreclosures, but banks rarely use it. Several speakers also noted that foreclosures often take nowhere near as long as the 600 to 800 days cited by lawmakers.

Yet, because tied-up foreclosures slow the real estate recovery–which is important to the economy and tax revenues–it is understandable why lawmakers wish to expedite a solution. HB 87 doesn’t strike the necessary balance, however, nor does it provide the debt relief that would help thousands more Floridians avoid foreclosure.

With the annual legislative session just begun, lawmakers still have time to fashion a more constructive set of solutions, including more lender cooperation on loan modifications, more money for extra judges to handle the foreclosure caseload, and better-funded legal-aid agencies.

These are some of the hard steps needed to resolve Florida’s foreclosure crisis. Short cuts won’t do the job.

Originally Published in Herald-Tribune Monday, March 11, 2013: http://www.heraldtribune.com/article/20130311/OPINION/303119995/-1/news?p=3&tc=pg

Many landlords and tenants are unaware that a landlord cannot cause any utility in a rental unit to be turned off while a tenant is in possession of the unit, even if the tenant is not paying rent. Section 83.67(1) of the Florida Statutes states:  

A landlord of any dwelling unit governed by this part shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.

If this occurs, this Section states:

[L]andlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages.

At the Morey Law Firm, P.A. we can help! We can consider your situation and help you determine your rights whether you are a landlord or a tenant. Contact us today at (407) 426-7222 for a consultation to determine your rights.

As of July 1, 2013, Chapter 83, Part II of the Florida Statutes was substantially revised. Chapter 83 is the section that governs landlord-tenant relations. Part II deals with residential as opposed to commercial leases. As part of the revision to this law, there are certain notices and disclosures that are required to be in the residential lease agreement. If you are a landlord, have you revised your lease agreement so that it complies with Florida’s new landlord-tenant law?

At the Morey Law Firm, P.A., we work diligently to stay up-to-date on all the new laws in the areas we practice in. We can help determine whether your lease needs to be revised to comply with the new law. If revisions are necessary, we can help! We can provide you with a new lease agreement that is in full compliance with the new law. Give us a call today!

Chapter 509 of the Florida Statues deals with lodging. Generally speaking, lodging refers to hotels, motels, and inns. The term also includes other forms of lodging as well. The main types of lodging are Transient public lodging establishments and Nontransient public lodging establishments.

Transient public lodging establishments are defined by Chapter 509 as being rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests. The most common type of transient public lodging would be hotels and similar establishments where guests stay during their vacation.   

Nontransient public lodging establishments are defined as being rented to guests for periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests for periods of at least 30 days or 1 calendar month. The common examples of nontransient public lodging would be your extended stay hotels.

There are also Transient establishments, Transient occupancy, Nontransient establishments, Nontransient occupancy, Transients, and Nontransients. The distinction can become somewhat confusing.

Chapter 83, Part II of the Florida Statutes deals with residential landlord-tenant relationships. In general, Chapter 83 does not apply to, “transient occupancy in a hotel, condominium, motel, rooming house, or similar public lodging, or transient occupancy in a mobile home park.” However, in many cases, it may apply to a nontransient situation.

The distinction between Chapters 509 and 83, Part II are very important. If you are only considered a guest, you have considerably less protection under Florida law in regards to your right to stay in possession of the property, or in this case room. Normally, owners of transient public lodging can elect to have the sheriff remove you from the property without a court order or they can just deny you access to the room. Additionally, it may be a crime to stay in this type of lodging and not pay.

That is not the case if you fall under Chapter 83, Part II and are essentially considered a tenant. The owner of the nontransient public lodging cannot remove you from the property without going through the eviction process and obtaining a court order. If they try to resort to other means to recover possession of the property, the owners put themselves at risk of being penalized by the courts for exercising behavior that is prohibited by Chapter 83.

Unfortunately, the distinctions between these two statutes are sometimes ignored or unknown by law enforcement. That can result in some very unjust predicaments. It seems to be better for all parties involved to err on the side of caution. The Orlando Sentinel has published an article regarding a dispute between hotel owners and the Osceola County Sheriff Department. Here is a link to that article: Click Here 

It is very important that you know your rights under these laws and know what Chapter your situation falls under. At the Morey Law Firm, P.A., we can help determine your legal rights. Give us a call today to set up your consultation!

On Friday, June 7, 2013, Governor Rick Scott signed The Florida Fair Foreclosure Act, which made many substantive changes to how foreclosures must be conducted in the state.  The primary focus of the Act is residential real estate foreclosures, however, a number of the new foreclosure requirements also relate to commercial real estate foreclosures.

Section 3 of the Act creates Florida Statute §702.015, which is intended to expedite the foreclosure process by requiring the initial disclosure of a plaintiff’s status upon the filing of a foreclosure action.  Specifically, a complaint that seeks foreclosure against residential real estate must either contain affirmative allegations that the plaintiff is the holder of the original promissory note secured by the mortgage or it must allege the factual basis by which the plaintiff is entitled to enforce the promissory note.  Although this subsection specifically applies to residential real estate, individual units of condominiums and cooperatives are included, which could affect the foreclosure of a commercial loan that encumbers real property consisting of several residential units.  It is better to err on the side of caution when filing a complaint against these types of properties by alleging the plaintiff’s position relating to the original promissory note when the action is initiated.  It is a relatively simple measure to take, and it could prevent major headaches down the road.

In the same vein, the Act requires in all mortgage foreclosure actions where the plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the promissory note, the plaintiff must describe in the complaint, with specificity, the document that grants the plaintiff that authority.  Further, if the plaintiff is in possession of the original promissory note, the plaintiff must file, contemporaneously with the filing of the complaint, a certification that the plaintiff is in possession of the original promissory note.

If the plaintiff is seeking to enforce a lost, destroyed, or stolen promissory note, the Act requires that the plaintiff file an affidavit that details a clear chain of all endorsements, transfers, or assignments of the promissory note.  It must also set forth facts showing that the plaintiff is entitled to enforce the unavailable promissory note, and adequate protection must be provided before the entry of a foreclosure judgment (discussed further below).  Clearly, the legislature has sought to hasten foreclosure proceedings by requiring the information as to the plaintiff’s status and ability to enforce the promissory note be presented to the court upon the filing of the complaint, rather than wasting time in a proceeding where a plaintiff’s inability to enforce the promissory note does not become apparent until much later in the legal proceeding.

Section 4 of the Act creates Florida Statute §702.036, which relates to the finality of the disposition of foreclosed property after the entry of a mortgage foreclosure judgment.  If a party seeks to set aside, invalidate, or challenge the validity of a foreclosure judgment, as long as certain criteria are met, the court may only grant monetary damages and may not grant relief that adversely affects the quality or character of the title to the property (i.e. the court cannot give the property back).  If a party seeks to invalidate a foreclosure judgment, the court will not grant relief other than monetary damages if: (1) the party seeking relief from the judgment was properly served, (2) the final judgment of foreclosure was entered, (3) the appeals periods have run with no appeals having been taken, or if an appeal was taken, it has been resolved, and (4) the property has been acquired for value by a person not affiliated with the foreclosing lender or the foreclosed owner.  Additionally, this section provides that upon the enforcement of a lost, destroyed, or stolen note, a person who is not a party to the underlying foreclosure action (but who claims to be the person entitled to enforce the promissory note) has no claim against the foreclosed property after it is conveyed to a bona fide purchaser.  The net effect of these provisions is to bolster the finality of foreclosure judgments once the foreclosed property has been subsequently conveyed by the lender.  A party challenging a foreclosure judgment can seek monetary damages and other relief, but after entry of a final judgment of foreclosure, an attempt to reverse the foreclosure will be unsuccessful.

Section 6 of the Act relates to entry of an order to show cause and amends Florida Statute §702.10 to read that any lienholder may request an order to show cause for the entry of a foreclosure judgment in a foreclosure action.  Formerly, only a mortgage holder could request entry of an order to show cause.  The changes now allow any lienholder to make that request, which includes the plaintiff and a defendant to the action who holds a lien encumbering the property, including a defendant homeowners’ association, condominium association, or cooperative association that may file a lien against the property.  If properly requested, the court will issue an order directed to the other parties to show cause why a final judgment of foreclosure should not be entered and will set a date and time for a hearing to show cause.  The filing of defenses by a motion, responsive pleading, affidavit, or otherwise before the hearing that raise a genuine issue of material fact or otherwise constitute a legal defense to foreclosure will cause the court not to enter a foreclosure judgment.  If the defendant files defenses, the hearing will be used to consider whether the evidence does indeed raise an issue of material fact.  If the defendant fails to appear at the hearing to show cause, fails to file defenses, or files an answer not contesting the foreclosure, the defendant may be considered to have waived the right to a hearing, and the court may enter a default and even a final judgment of foreclosure.  Moreover, if the mortgage provides for reasonable attorney fees and the fees sought do not exceed 3% of the principal amount owed at the time of the complaint, no hearing will be necessary to determine that the attorney fees are in fact reasonable.

In our experience, this show cause procedure usually does not save time in commercial foreclosures, but rather increases costs, because all a defendant has to do is raise a defense, and then the expedited foreclosure judgment sought is not entered.  What is likely to happen under this new section is homeowner and condominium associations will try to use this procedure to expedite the entry of foreclosure judgments in mortgage foreclosure actions to force the foreclosing lender to take title as soon as possible and thereby become responsible for paying homeowner and condominium association assessments.

Section 6 also provides that in any action for foreclosure other than against owner-occupied residential real estate, in addition to any other relief that the court may award, the plaintiff may request that the court enter an order directing the borrower to show cause why an order to make payments during the pendency of the foreclosure proceedings should not be entered, and if the required payments are not made, why an order to vacate the premises should not be entered.  If a borrower has not waived the right to be heard on the order to show cause, the court will determine if the plaintiff is likely to prevail in the foreclosure action, and if so, the court will enter an order requiring the borrower to make payments to the plaintiff.  If the court enters an order requiring payments, the payments will be payable at such intervals and amounts provided for in the mortgage before acceleration or maturity.  If the payment order is granted, it will also provide that the plaintiff is entitled to take possession of the property upon the failure of the borrower to make payment.  Finally, Section 6 provides that any payments made during the foreclosure proceeding will be credited against the mortgage obligation in accordance with the terms of the loan; however, payments made under Section 6 do not constitute a cure of any default.  While this procedure could expedite the removal of the owner, lenders should be very cautious taking possession of encumbered real estate before they acquire title (from a casualty and/or liability standpoint).  However, if the owner is forced to vacate the premises under this section, it would enhance the foreclosing lender’s pursuit of the appointment of a receiver to take possession and control of the vacated premises.

Section 7 of the Act enumerates certain methods of providing adequate protection where the foreclosing lender is not in possession of the original promissory note.  Section 7 of the Act creates Florida Statute §702.11, under which all of the following will be considered adequate protection: (i) a written indemnification agreement by a person reasonably believed sufficiently solvent to honor such an obligation, (ii) a surety bond, (iii) a letter of credit issued by a financial institution, (iv) a deposit of cash collateral with the clerk of the court, and (v) such other security as the court may deem appropriate under the circumstances.  Additionally, Subsection 2 provides that a person who wrongly claims to be a promissory note holder or entitled to enforce a promissory note and causes foreclosure is liable to the actual holder of the promissory note for actual damages suffered together with attorney’s fees and costs which the actual holder of the promissory note may pursue recovery directly against any adequate protections given or by other means.

It is important to note that every provision discussed in this article, except for the content of complaint requirements of Florida Statute §702.015, applies to current and pending actions beginning on July 1, 2013.  That means that after July 1, 2013, all requirements and procedures provided in the act will apply, even to ongoing proceedings.  Furthermore, any action filed after July 1, 2013 will be subject to the aforementioned complaint content requirements.

The enactment of The Florida Fair Foreclosure Act brings about some significant changes to the commercial real estate foreclosure process.  It is important that those seeking foreclosure pay attention to the new requirements provided by the Act.  If these provisions are ignored, it could mean trouble for lenders, but if utilized, the new provisions could help promote a more expedited foreclosure process.

Article by Gary Soles, Michael S. Provenzale and Adam Lewis, Summer Law Clerk

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

Florida Law Provides for the notice a homeowners’ association must give to its members of any meetings of the Board or Directors. Florida law also provides for who has the right to attend these meetings. Section 720.303 of the Florida Statutes states:

2) Board meetings.–

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

(b) Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and another manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to members other than directors.

(c) The bylaws shall provide for giving notice to parcel owners and members of all board meetings and, if they do not do so, shall be deemed to provide the following:

1. Notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative, if a notice is not posted in a conspicuous place in the community, a notice of each board meeting must be mailed or delivered to each member at least 7 days before the meeting, except in an emergency. Notwithstanding this general notice requirement, for communities with more than 100 members, the bylaws may provide for a reasonable alternative to posting or mailing of notice for each board meeting, including publication of the notice, provision of a schedule of board meetings, or the conspicuous posting and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners’ association. However, if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. When a broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. The bylaws or amended bylaws may provide for giving notice by electronic transmission in a manner authorized by law for meetings of the board of directors, committee meetings requiring notice under this section, and annual and special meetings of the members; however, a member must consent in writing to receiving notice by electronic transmission.

Sometimes the Association’s governing documents can change some of these requirements.  At the Morey Law Firm, P.A., we can help you determine your legal rights. If you live in Orlando or the surrounding area, call to set up your consultation today!

The amount of fees to which a prevailing party is entitled in any lawsuit where they are at issue are calculated following a method laid out by the Florida Supreme Court in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This method is often referred to as the “lodestar” method because the Court modeled it after a similar federal formula of that name. This formula is applicable where a statute authorizes an award of fees to a prevailing party.  Rowe applies whether the awarded attorney’s fees are based on entitlement by statute or by contract.

In Rowe, the Florida Supreme Court lays out a formula to provide a suitable foundation for an objective structure in fee calculations. In determining reasonable attorney fees, the Court in Rowe explains that courts should utilize the criteria set forth in Disciplinary Rule 2-106(b) of The Florida Bar Code of Professional Responsibility:

• The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly;
• The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
• The fee customarily charged in the locality for similar legal services;
• The amount involved and the results obtained;
• The time limitations imposed by the client or by the circumstances;
• The nature and length of the professional relationship with the client;
• The experience, reputation, and ability of the lawyer or lawyers performing the services; and
• Whether the fee is fixed or contingent.

The first step in the lodestar process requires the court to determine the number of hours reasonably expended on the litigation. To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed. Counsel is expected to claim only those hours that he could properly bill to his client. Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary. The “novelty and difficulty of the question involved” should normally be reflected by the number of hours reasonably expended on the litigation.

The second half of the equation, which encompasses many aspects of the representation, requires the court to determine a reasonable hourly rate for the services of the prevailing party’s attorney. In establishing this hourly rate, the court should assume the fee will be paid irrespective of the result, and take into account all of the Disciplinary Rule 2-106 factors except the “time and labor required,” the “novelty and difficulty of the question involved,” the “results obtained,” and “[w]hether the fee is fixed or contingent.” The party who seeks the fees carries the burden of establishing the prevailing “market rate,” i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience, and reputation, for similar services. The number of hours reasonably expended, determined in the first step, multiplied by a reasonable hourly rate, determined in the second step, produces the lodestar, which is an objective basis for the award of attorney fees.

It is important to note that Florida Courts generally do not award fees for time spent litigating the amount of the fees to be awarded. This is a critical factor in determining whether fees should be expended in pursuing a fees claim. Please note, however, recent case law suggests there may be certain circumstances under which fees may be awarded for time spent litigating the amount of fees.

In The Waverly at Las Olas Condominium Association, Inc. v. Waverly Las Olas, LLC, 4th District Case No. 4D11-2180, May 16, 2012, the Court found that the trial court did not abuse its discretion by awarding developer all fees incurred in the litigation, including fees for time spent litigating amount of fees. Broad language in the owners’ purchase agreements provided for award of fees for “any” litigation between the parties under the agreement. This holding may be used to support a similar award of fees for litigating the amount of fees in covenant enforcement disputes where the declaration of covenants includes broad prevailing party fees language.

Once the court arrives at the lodestar figure, it may add or subtract from the fee based upon a “contingency risk” factor and the “results obtained.”

The Court in Rowe explained that when the prevailing party’s counsel is employed on a contingent fee basis, the trial court must consider a contingency risk factor when awarding a statutorily-directed reasonable attorney fee.11 In contingent fee cases, the lodestar figure calculated by the court is subject to enhancement by an appropriate contingency risk multiplier in the range of 1.5 to 3. When the trial court determines that success was more likely than not at the outset, the multiplier should be 1.5; when the likelihood of success was approximately even at the outset, the multiplier should be 2; and, when success was unlikely at the time the case was initiated, the multiplier should be in the range of 2.5 to 3.12

In describing the Supreme Court’s computation method in Rowe, the court in Lake Tippecanoe Owners Ass’n, Inc. v. Hanauer, 494 So. 2d 226 (Fla. 2d DCA 1986) explained that in computing attorney’s fees, the trial judge should: (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and, when appropriate, (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims.

The trial judge correctly followed steps (1), (2), and (3), and arrived at a figure of $11,875, the lodestar factor under Rowe. The trial judge then proceeded to multiply this amount by what it termed a “success factor” of 1.5 and arrived at $17,812.50. The trial judge erred in multiplying the lodestar factor by 1.5, however, because the case did not qualify for an enhanced fee. Enhancement under Rowe is only applied where the prevailing party’s counsel is employed on a contingent fee basis.

The “results obtained” may provide an independent basis for reducing the fee when the party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims. When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success.

Evidence sufficient to support a finding of the number of hours reasonably expended by an attorney need not necessarily include specific, written time records, although such records are highly preferable and the lack thereof may in certain cases justify a reduction in the number of hours claimed.

Expert witnesses may be used to determine reasonable fee awards, and may be required in some cases. Florida Statutes § 92.231 permits any expert or skilled witness who testifies in any cause to be allowed a witness fee. As such, the costs associated with pursuing fees should be factored into the decision to pursue fees at all.

Blog based on article published at: http://www.csklegal.com/pages/calculating-reasonable-attorneys-fees-for-…

This question used to come up quite often in the early days of the foreclosure boom; however, the courts put this question to bed a long time ago. If the only issue is the pending foreclosure, the tenant does not have the right to unilaterally terminate the lease agreement. Additionally, the tenant is required to continue paying rent. In fact, if the tenant stops paying rent, they will no longer be considered “bona fide” tenants under the Federal Protecting Tenant at Foreclosure Act. This Act generally provides bona fide tenants with an additional 90 days to stay in the rental property after the foreclosure auction.

Whether you’re a landlord or a tenant, if you have any questions regarding your rights under a lease agreement, we can help! We can consider your situation and help you determine your rights. Contact us today at (407) 426-7222 for a consultation to discuss your specific situation.

A proposal for settlement in Florida can be filed by either party to a lawsuit. Section 768.79 of the Florida Statutes provides for the proposal for settlement, a/k/a offer of judgment. Proposals for settlement are most often used in personal injury cases; however, they can be utilized in other cases as well. The proposal itself is simply an offer to pay, or an offer to receive, a certain amount of money to settle the case. For example, an insurance company might give a proposal for settlement to an injured party where they offer to pay the other party $25,000.00 to settle the case. This is obviously an offer to pay. An example of an offer to receive would be where an injured party gives the party that caused the injury a proposal for settlement asking for payment of $25,000.00.   

The amount offered varies greatly depending on the facts of the case. Proposals for settlement are often utilized in litigation by insurers before trial once it becomes apparent that the chances for settlement are minimal.   The proposal for settlement can potentially bring consequences to the party receiving it if not accepted. Insurers know this and use the proposals to impact the other party’s decision regarding the settlement.

The party to whom the proposal is directed has thirty days from the date of filing to accept the proposal or it is automatically deemed rejected. In my first example, the insurance company gave a proposal to pay $25,000.00 to the injured party. If the proposal for settlement is rejected by the injured party and the injured party is awarded a final money judgment at least 25% less than the amount offered in the proposal (less than $18,750.00), a court can award costs and attorney’s fees to the party that made the proposal. In saying this, it is important to point out that in personal injury cases, generally, neither side is entitled to an award of attorney’s fees and costs. So, an injured party that sues normally will not have a negative consequence if they lose; however, the proposal for settlement changes that. Now that injured party can be on the hook for a very large judgment of attorney’s fees and costs if they lose, or obtain a judgment for 25% less than what is offered.

In my second example, an injured party gives a proposal for settlement to the at-fault party for $25,000.00. If the proposal for settlement is rejected by the at-fault party and the injured party is awarded a final money judgment at least 25% greater than the amount offered in the proposal (less than $31,250.00), a court can award costs and attorney’s fees to the party that made the proposal.

 It is very important that a party to litigation have a detailed discussion with their attorney regarding the consequences of a proposal for settlement if one is made in their case. One topic that should be discussed is a proposal for settlement insurance. Recently, some companies in Florida have begun providing insurance coverage for a proposal for settlement in case it results in that party having to pay the other side’s attorney’s fees and costs.

At the Morey Law Firm, P.A. we can help! We can consider your situation and help you determine your rights whether you have given a proposal or have received one. Contact us today at (407) 426-7222 for a consultation to determine your rights.

Landlords often make the mistake of not considering whether they need to provide their former tenants the security deposit notice required under Florida law after the tenants are evicted.  It is rare that anything happens to the Landlord as a result. The reason seems to be that once a tenant is evicted, they may think that they have waived their rights to the deposit. That may be the case; however, that may not waive the tenant’s right to receive the notice. Section 83.49 of the Florida Statutes states:

(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to_______. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).

If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.

(b) Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.

This Statute also provides for situations where the notice is not needed:

Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises that are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

Whether you’re a landlord or a tenant, if you have any questions regarding your rights to notice and the security deposit, we can help! We can consider your situation and help you determine your rights. Contact us today at (407) 426-7222 for a consultation to discuss your specific situation.

On Friday, June 7, 2013, Governor Rick Scott signed The Florida Fair Foreclosure Act, which made many substantive changes to how foreclosures must be conducted in the state.  One of those changes affected the statute of limitation regarding the bank/lender’s ability to pursue deficiency judgments after a home is sold through a foreclosure auction.

What is a deficiency judgment in a mortgage foreclosure? It is a personal money judgment for the difference between what the property sold for at or after the foreclosure auction and the total amount owed to the lender in the final judgment of foreclosure. For example, if you owed $400,000.00 to the lender and the property sold at auction for $100,000.00, you could be liable to a personal money judgment in the amount of $300,000.00.

What is a Statute of Limitations? A Statute of Limitation creates a definite period of time within which a party may bring a lawsuit. If a lawsuit is brought outside of that time period, the suit may be dismissed, as the claim is forever barred.

Before the Florida Fair Foreclosure Act was passed, the Statutes of Limitation allowed a party to bring an action for a deficiency judgment at any point up to five years from the date a certificate of sale was issued by the Clerk following a foreclosure sale. After the Act passed, that time limit has shrunk to one year for deficiencies created by foreclosure sales or deeds in lieu of foreclosure. However, this change is limitation to actions commenced on or after July 1, 2013.

Although actions filed before July 1, 2013 are still subject to the old statute, there is a silver lining for homeowners facing a potential deficiency judgment.  Any action put into motion before July 1, 2013 only remains valid until July 1, 2014.  For example, if the five-year time period will expire on August 1, 2016 under the old law, the new law shortens the lender’s right to pursue a deficiency judgment to July 1, 2014.

If you are facing a potential deficiency judgment, we can help! We can consider your situation and help you determine your rights. Contact us today at (407) 426-7222 for a consultation to discuss your specific situation.