Florida Real Estate Lawyers Blog

The Use of a Lis Pendens to Collect a Debt in Florida

Published on: August 1, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

Oftentimes, creditors seeking to collect money judgments in Miami-Dade or Broward County will file a lis pendens in the public records against real property (i.e. real estate) owned by the debtor. A “lis pendens” is a written notice that a lawsuit has been filed which concerns title to real property or some interest in that real property. A lis pendens is often referred to as a “cloud on title” and will prevent the homeowner from selling or obtaining refinancing on their property until the lis pendens is removed. Other than providing notice to the public, one of the other practical effects of filing the lis pendens is that the debtor feels pressure to pay of their debt.

However, the filing of a lis pendens is not always appropriate and can give rise to an action for damages and attorneys’ fees under certain scenarios. For example, in cases where a creditor is seeking to collect a debt where there is no nexus (i.e. connection) between the real property that the lis pendens describes and the original dispute between the creditor and the debtor, the creditor is expressly forbidden from filing a lis pendens. An example of a situation where there typically is no nexus or connection between the lawsuit and a lis pendens would be where an “unsecured” creditor – such as a credit card debt collection company – files a lawsuit against a Florida homeowner and records a lis pendens in the public records. In such a case, the creditor would be held liable for any damages that the lis pendens causes and would also be required to pay any of the property owner’s attorneys’ fees which he or she incurred in removing the lis pendens.

Thus, when the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized. Thus, a lis pendens is not an appropriate instrument for use in promoting recoveries in actions for money judgments. In the event that a creditor files an unauthorized lis pendens and the lis pendens causes the property owner damages, the property owner is entitled to have the lis pendens removed and can sue the creditor for damages.

What Is a Florida Realtor’s Responsibility To Their Client?

Published on: July 28, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

A rarely investigated subject by most buyers and sellers of residential real estate in South Florida is what role their realtor is playing in the transaction. By Florida Statute, there are three different roles that a realtor may play in a real estate deal. Whether you are buying or selling home, it is important to understand what capacity your realtor is acting in.

In Florida, a realtor may act as a single agent, a transaction broker, or maintain a “no representation status”. Most realtors in Miami-Dade and Broward County are acting as transaction brokers. In fact, and while it may come as a surprise, it is presumed that your realtor is acting as a transaction broker unless agreed to in writing otherwise. A transaction broker is in essence working to close the transaction and is not in a fiduciary relationship with their client. “Fiduciary” means that the broker is “in a relationship of trust and confidence” with the buyer or seller, has the duty of loyalty, confidentiality, obedience, full disclosure, and accounting, and also the duty to use skill, care, and diligence.

Realtors Acting As A Transaction Broker

Pursuant to statute, a transaction broker provides “limited representation to a buyer, a seller, or both … but does not represent either in a fiduciary capacity or as a single agent.” The transaction broker is working as a facilitator between the buyer and seller to close the transaction and does not owe an undivided loyalty to either party. Nonetheless, the transaction broker must, among other things, account for all funds, use skill, care, and diligence in the transaction, deal honestly and fairly with the parties, and disclose all known facts that materially affect the value of residential property that are not readily observable to the buyer. In addition, the transaction broker is prohibited from disclosing either party’s true “bottom line” regarding price negotiations or financing terms, the motivation of either party, and other matters that either party requests be kept confidential.

Abandoned Property and Florida Landlord Tenant Law

Published on: July 26, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

A commercial landlord recently questioned what her rights were with respect to property that a former tenant had left behind in a commercial rental unit. She wanted to know what to do with the abandoned property and whether she could let other people take it out of the unit or whether the abandoned property could be simply thrown away.

According to Florida Statute Section 715.104 before taking any action a landlord must provide written notice to the former tenant and any other parties that the landlord suspects may own the property that was left behind.

The written notice needs to identify the property with specificity and advise the former tenant that they must pick up the property within 10 days (if the notice is personally delivered) or within 15 days (if the notice is sent by mail) or the property will be sold or thrown-out.

Florida Foreclosure Law Will Have Serious Consequences for Homeowners in Miami-Dade and Broward County

Published on: July 21, 2013 | by ESQ.title

By: Daniel T. Pascale, Esq.

In an effort to alleviate the foreclosure crisis, Florida’s Legislature recently passed a foreclosure bill (House Bill 87) that will significantly impact Miami-Dade and Broward County homeowners facing foreclosure. From a homeowner’s perspective, the biggest problem with Florida’s latest foreclosure law is that it speeds up the foreclosure process by requiring the homeowner to prove to the Court in an “order to show cause hearing” that the foreclosure should be stopped. On the other hand, the biggest relief to the homeowner is that the Bank will only have one year to pursue a deficiency judgment (i.e. the difference between what the homeowner owes on the loan and what the home sells for at a foreclosure sale). Other important aspects of Florida’s latest foreclosure law, which all homeowners facing foreclosure in Miami and Broward County should know about, include:

The Positives

Foreclosure Deficiency Judgments: The time frame for the Bank to pursue a deficiency judgment against the homeowner has been drastically shortened from five (5) years to one (1) year. That means that the Bank only has one year to pursue a collection action against the homeowner for the amount that the Homeowner actually owed on the loan and what the house ultimately sold for in the foreclosure sale. If the Bank does not initiate a collection action against the Homeowner within one year, the Bank loses the right to collect the deficiency judgment.

Tightened Paperwork Requirements: Banks are now required to initially identify in their foreclosure complaint whether they are in possession of the mortgage note and/or their factual basis for bringing a foreclosure action without being in possession of the mortgage note. If the Bank is in possession of the promissory note, the Bank must file a copy of the promissory note with the foreclosure complaint. If the Bank fails to file the promissory note with the foreclosure complaint then there may be grounds to file a motion to dismiss the foreclosure lawsuit.