It appears inventory is rising slightly, while closed sales and sales prices, on average, remain steady. 

We welcome your comments about what you see in these reports and what you think this means for the future of our real estate market.

Here are the reports: 

October 2023 Broward County Single Family Homes

October 2023 Broward County Townhouses and Condos

October 2023 Miami-Dade County Single Family Homes

October 2023 Miami-Dade County Townhouses and Condos

October 2023 Palm Beach County Single Family Homes

October 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with personal injury, real estate closings, probate, and estate planning. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

August 2023 Broward County Single Family Homes

August 2023 Broward County Townhouses and Condos

August 2023 Miami-Dade County Single Family Homes

August 2023 Miami-Dade County Townhouses and Condos

August 2023 Palm Beach County Single Family Homes

August 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate closings, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

July 2023 Broward County Single Family Homes

July 2023 Broward County Townhouses and Condos

July 2023 Miami-Dade County Single Family Homes

July 2023 Miami-Dade County Townhouses and Condos

July 2023 Palm Beach County Single Family Homes

July 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

June 2023 Broward County Single Family Homes

June 2023 Broward County Townhouses and Condos

June 2023 Miami-Dade County Single Family Homes

June 2023 Miami-Dade County Townhouses and Condos

June 2023 Palm Beach County Single Family Homes

June 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

May 2023 Broward County Single Family Homes

May 2023 Broward County Townhouses and Condos

May 2023 Miami-Dade County Single Family Homes

May 2023 Miami-Dade County Townhouses and Condos

May 2023 Palm Beach County Single Family Homes

May 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

April 2023 Broward County Single Family Homes

April 2023 Broward County Townhouses and Condos

April 2023 Miami-Dade County Single Family Homes

April 2023 Miami-Dade County Townhouses and Condos

April 2023 Palm Beach County Single Family Homes

April 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

February 2023 Broward County Single Family Homes

February 2023 Broward County Townhouses and Condos

February 2023 Miami-Dade County Single Family Homes

February 2023 Miami-Dade County Townhouses and Condos

February 2023 Palm Beach County Single Family Homes

February 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

January 2023 Broward County Single Family Homes

January 2023 Broward County Townhouses and Condos

January 2023 Miami-Dade County Single Family Homes

January 2023 Miami-Dade County Townhouses and Condos

January 2023 Palm Beach County Single Family Homes

January 2023 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

December 2022 Miami-Dade County Single Family Homes

December 2022 Miami-Dade County Townhouses and Condos

December 2022 Broward County Single Family Homes

December 2022 Broward County Townhouses and Condos

December 2022 Palm Beach County Single Family Homes

December 2022 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

October 2022 Broward County Single Family Homes

October 2022 Broward County Townhouses and Condos

October 2022 Miami-Dade County Single Family Homes

October 2022 Miami-Dade County Townhouses and Condos

October 2022 Palm Beach County Single Family Homes

October 2022 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

Our firm helps people with real estate transactions, foreclosure defense, estate planning, and probate. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

September 2022 Miami-Dade County Single Family Homes

September 2022 Miami-Dade County Townhouses and Condos

September 2022 Broward County Single Family Homes

September 2022 Broward County Townhouses and Condos

September 2022 Palm Beach County Single Family Homes

September 2022 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

If you or someone you know needs help with a real estate, foreclosure defense, consumer protection, or personal injury matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

August 2022 Broward County Single Family Homes

August 2022 Broward County Townhouses and Condos

August 2022 Miami-Dade County Single Family Homes

August 2022 Miami-Dade County Townhouses and Condos

August 2022 Palm Beach County Single Family Homes

August 2022 Palm Beach County Townhouses and Condos

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as accurate as possible.

If you or someone you know needs help with a real estate, foreclosure defense, consumer protection, or personal injury matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

In the Order, the Court directs “all judges within their circuits to strictly comply with Florida Rule of General Practice and Judicial Administration 2.545(a), (b), and (e), which respectively require judges to conclude litigation as soon as it is reasonably and justly possible to do so, to take charge of all cases at an early stage and to control the progress of the case thereafter until it is determined, and to apply a firm continuance policy allowing continuances only for good cause shown.” (Emphasis added.)

The Order also requires chief judges in every circuit/county to issue administrative orders which divide cases into three categories: complex, streamlined, or general. Each of those have their own deadlines, which “will be strictly enforced by the court.” Id. (For foreclosure attorneys, having timelines to push cases to resolution is nothing new.)

In one of our cases, we recently moved for a continuance of trial. The case is about three and a half years old and well past the applicable timelines. Trial was only a couple of days away from the hearing on the motion for continuance and we are ready, willing, and able to go to bat for our client—as we have done hundreds of times before. But here, our client really wants to save their home and recently submitted a loan modification package. At the hearing, the judge quickly informed us that the case was too old and that the new Supreme Court and local circuit directives required him to deny the continuance.

I expressed that I understood the court’s predicament and then respectfully argued why the judge could still grant our motion.

First, a recent Fourth District Court of Appeal case addressed the impact of the deadlines expressed in AOSC20-23. Massey v. Thomas, 342 So. 3d 680 (Fla. 4th DCA 2022). In Massey, a trial court dismissed a case because of a party’s failure to comply with these new timelines. Id. But the Fourth District reversed because there is established precedent as to when a court can dismiss a case as a sanction (as discussed in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)), and the court did not apply that analysis before dismissing. Massey, 342 So. 3d 680. “[The Florida Supreme] Court does not intentionally overrule itself sub silentio.” Id. at 685 (citing Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)). And, “[b]ecause the trial court misinterpreted the administrative order as requiring strict compliance without regard to Kozel, it erred.” Id.

Second, as cited above, Florida Rule of Civil Procedure 1.460 (and the case law interpreting it) controls continuances. The Florida Supreme Court Order has not sub silentio overruled that Rule or the body of caselaw interpreting it. Rather, the Florida Supreme Court has directed judges to “apply a firm continuance policy allowing continuances only for good cause shown.” Arguably, no motion—of any kind—can be granted unless good cause is shown. So the same law should still apply. And that law gives the courts discretion—within the framework of a binding three-part test.

Lastly, in full disclosure to the court, the circuit in this particular matter had passed its own administrative order, which included a proposed case management order. And that seemed to create a far more unforgiving standard for continuances. The proposed case management order states:

The above-referenced schedule of deadlines will be strictly adhered to by the parties unless a change is otherwise agreed to by the parties and approved by the Court. The Court will consider a request to approve changes to these deadlines upon a showing of good cause by either party based on matters arising from an emergency nature or unavailability. However, once the Agreed Case Management Plan has been approved by the Court, procrastination in completing discovery or the unavailability of counsel will not constitute good cause for a change to these deadlines. The failure to abide by these deadlines may result in sanctions by the Court, including the award of attorney’s fees, the striking of pleadings, and/or a dismissal of the action.

But, in this particular case, the case management plan was never entered. So the court was not bound by it. (I did not have to argue this but, “[i]f a chief judge issues an administrative order which attempts to amend a statute or rule by adding terms and conditions, that administrative order is invalid because it limits judicial discretion and exceeds the authority granted under Florida Rule of Judicial Administration 2.050(b).” Hatcher v. Davis, 798 So. 2d 765, 766 (Fla. 2d DCA 2001). An analogous argument could be made here.)

As I finished my argument, the court asked the bank lawyer for the amount of time it needed to complete a review of the modification package. The bank lawyer advised that it would take forty-five to sixty days. The court then stated it would grant the continuance for at least sixty days and then said “that’s a fine a recitation of the current state of law regarding the covid-related changes as I’ve ever heard. Well done Mr. Rosen.”

I’m grateful for the positive feedback. But hopefully, this will result in our client saving his home!

If you or someone you know needs help with a real estate, foreclosure defense, consumer protection, or personal injury matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Knowledge is power and here is the latest:

July 2022 Broward County Single Family Homes

July 2022 Broward County Townhouses and Condos

July 2022 Miami-Dade County Single Family Homes

July 2022 Miami-Dade County Townhouses and Condos

July 2022 Palm Beach County Single Family Homes

July 2022 Palm Beach County Townhouses and Condos

If you or someone you know needs help with a real estate, foreclosure defense, consumer protection, or personal injury matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

The trial court agreed with the bank’s position and denied entitlement. We appealed and the case was pending on appeal for over four years. During that time, the appellate court requested supplemental briefings after the Florida Supreme Court issued opinions in two critical cases: Glass v. Nationstar Mortgage, LLC, 268 So. 3d 676 (Fla. 2019) (initially granting fees to a borrower but later withdrawn due to jurisdictional issues); and Page v. Deutsche Bank Tr. Co. Americas, 308 So. 3d 953 (Fla. 2020). Page was part of the reason the appellate court held our appeal in abeyance for approximately one year. Ultimately, the appellate court reversed the order denying entitlement and awarded my clients their fees. Thankfully, we also resolved the underlying matter.

Background

The complaint in this case alleged that my clients had defaulted three years before suit was filed. The original lender had a very similar name to the plaintiff. For several reasons, I removed the parties’ full names throughout this post but plaintiff was XXX Bank, and the original lender was XXX Mortgage.

The subject loan was a home equity line of credit (“HELOC”). It is “non-negotiable” as it is not for a fixed amount of money. § 673.1041, Fla. Stat. (2021) (“[T]he term ‘negotiable instrument’ means an unconditional promise or order to pay a fixed amount of money. . . .”) (Emphasis added.)

Unlike negotiable instruments, non-negotiable notes are not enforced based on proof of possession of a blank or specifically indorsed document. But the right to enforce a non-negotiable instrument is assignable. Chuchian v. Situs Investments, LLC, 219 So. 3d 992, 993 (Fla. 5th DCA 2017) (“The assignee of a nonnegotiable note obtains the right of the assignor to enforce the note and is subject to any defenses the borrower had against the assignor.”). This is because “[g]enerally, all contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment.” L.V. McClendon Kennels, Inc. v. Inv. Corp. of S. Florida, 490 So. 2d 1374, 1375 (Fla. 3d DCA 1986).

None of the exceptions to assignability applied in this case and the bank attached an assignment of mortgage (“AOM”) to the complaint. The AOM referenced the Mortgage “with all moneys now owing or that may hereafter become due or owing.” And section 701.01, Florida Statutes, states:

Any mortgagee may assign and transfer any mortgage made to her or him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and that person or her or his assigns or subsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.

(Emphasis added.)

I pleaded lack of standing at the outset to best serve my clients and preserve all possible winnable issues, but I was fairly certain the bank would be able to establish a pre-suit assignment from XXX Mortgage to XXX Bank. They are obviously related entities. Standing was not a primary issue.

Rather, the critical issue was force-placed insurance. My clients maintained they had tendered over a year’s worth of timely, full payments. But the bank and its servicers/agents rejected those because my clients refused to pay for improperly force-placed insurance. At all times, they had adequate insurance in place. My clients also insisted that at some point their bank refused to send payments to the plaintiff/bank because the payments were being rejected for such a long time. Importantly, my clients assured me that, at all times, they had the money to pay their relatively small home loan. (According to the plaintiff/bank, the unpaid principal balance was just over $60,000.)

But I have had clients tell me similar things before and their “side of the story” does not always bear out. I was also concerned that their mortgage contained provisions that allow lenders to reject partial payments (as many do) and that my clients might have been sending in partial payments—that could have been lawfully rejected. Moreover, I know from experience that it is very difficult to convince a judge that an alleged defaulted borrower—who admittedly had not tendered a payment in a few years—should still prevail. That is a tough argument no matter what. I had a lot of work to do to determine if my clients’ claims were true, if I could prove them, and if they would carry the day.

We initially filed a motion for enlargement of time to respond to the complaint and the bank’s request for admissions. We did not wait for an order but instead, promptly filed a Motion to Quash (“MTQ”).

Around the same time a hearing on the MTQ was being set, I relayed an offer to the bank’s lawyer over the phone and by email. My clients agreed to pay $50,000 to satisfy the alleged approximately $60,000 unpaid principal balance, with both sides bearing their own fees and costs. But like other settlement proposals throughout this case, the bank and its lawyers never countered or even responded.

We ultimately agreed to an order on our MTQ and filed an answer, including two affirmative defenses on unclean hands. Those defenses were based on what the clients were telling me and on some documents/correspondence they had provided. One of the documents was a “misapplication reversal” check and cover letter advising that the account was “overpaid.” The bank sent that to my clients after the date of default alleged in the complaint.

We continued to do what was needed to gather our clients’ bank and insurance records (in admissible form) to establish that their payments were wrongfully rejected due to the bank’s improper/unnecessary force-placed insurance.

Despite our efforts to coordinate depositions, opposing counsel was uncooperative. We eventually issued and served subpoenas on our clients’ insurance carrier and personal bank, and filed and served deposition notices.

After Plaintiff initially sought and obtained more time, it finally responded to our request for admissions, request for production, and interrogatories. But their responses were evasive. So after trying to resolve the discovery issues, and again not receiving a response, we filed a motion to compel.

Plaintiff noticed the action for trial and filed a motion for protective order—seeking to stop us from deposing our clients’ bank representative. Plaintiff complained that the deposition was set within a week of being noticed. But the clerk of court’s filing stamp (and certificate of service) for the deposition notice showed that the deposition was set with thirty-days advance notice. Plaintiff also claimed that the deposition was not coordinated. But it failed to mention that while its counsel’s office responded to our email attempting to coordinate, it did not respond to our specific request for them to pick one of multiple proposed dates. Plaintiff’s counsel’s office also emailed they were “unable to coordinate” a date for our client’s insurance company’s deposition. Further, the motion for protective order claimed that our defenses were boilerplate and that my clients had no defense to non-payment or the plaintiff being a “holder in due course.”

A couple of weeks later, I had a phone call with the bank lawyer who signed the bank’s motion for protective order. He could not understand why we were taking depositions. I was hesitant to disclose this, but I explained that the issues are pleaded in the affirmative defenses and asked if he had reviewed those. He did not respond to my question, and it was clear that he was unaware of my client’s contentions. (This was also previously made clear by the numerous incorrect statements in his motion for protective order.) I summarized the text of the unclean hands defenses for him and explained that we were in the process of gathering evidence to prove that the bank improperly force-placed insurance and rejected over a years’ worth of payments—as pleaded. My clients also denied being in default in their answer. But for the bank and its servicer, the loan would be current and there would be no suit. I recall telling the other attorney that the bank even sent a refund check for overpayment, and that it was dated after the alleged date of default. (That correspondence was also attached to our pleadings.) He thanked me and we ended the call.

Just before the depositions, my clients’ insurance company and bank agreed to give us self-authenticating business record certifications/affidavits. We promptly canceled the depositions and served the certifications on plaintiff’s counsel. We provided the bank with 1,014 pages of self-authenticating business records that proved my clients had insurance at all times, and that their payments were being timely made, and rejected.

As part of this process, we found out that my clients’ bank was using a third-party to process certain payment-related messages to their customers. We began taking steps to subpoena and depose that company too as we had copies of electronic bank messages showing that the plaintiff/bank was rejecting automatic payments.

On the day before a hearing on our motion to compel better answers to discovery, I spoke to the same bank lawyer I had spoken to about the motion for protective order. He refused to come to any agreement. But the next morning, just before the hearing and while standing in the hallway outside the judge’s chambers, he agreed to an order giving us what we would have agreed to all along.

We finished drafting our subpoena to the third-party message processor for our clients’ bank and were about to proceed when, to our surprise, the Plaintiff voluntarily dismissed the case.

We prepared and filed our fee motion. A week later, plaintiff’s counsel asked me for my time records and a settlement proposal. I sent that over. The bank and its lawyers never responded. Instead, about two weeks after I sent the settlement proposal, I received an email from opposing counsel. They were requesting a special set hearing on entitlement.

We began preparing for that contested hearing. The bank pleaded—under penalty of perjury in the complaint—that it was entitled to enforce the loan documents. For example, paragraph eleven in complaint states: “Plaintiff is entitled to recover its attorneys’ fees under the parties’ agreement.” (Emphasis added.) But to deny my client entitlement to fees, the bank claimed (and its counsels argued at the entitlement hearing and throughout the appeal), that the bank was not entitled to enforce, because there was no contract between the parties. And if there is no contract between the parties, my clients cannot recover fees under a statute that presupposes a contractual relationship exists. See § 57.105(7), Fla. Stat. (2022).

As a bank lawyer stated at the entitlement hearing: “[W]e don’t have parties to the suit who are also parties to the contract. . . So that’s like a non-party coming in and trying to get fees under a contract, right? That’s like my sister coming in, or your brother trying to come in and get fees . . . .”

As part of that hearing preparation, I filed a memorandum and a request to take judicial notice of a certified copy of the Complaint, Mortgage, and AOM. Plaintiff filed its own memorandum.

At the hearing, and without objection from the bank lawyer, the court took judicial notice of the requested documents. It was my position from the beginning that the AOM connected the parties to the Mortgage, the Mortgage contained the applicable fee provision needed for reciprocity under 57.105(7), and there was no dispute that we prevailed. Despite my argument and evidence, the trial court judge relied on what is now quashed case law and rejected reasoning to deny fees.

We ordered the transcript and soon found out that the reporter made a lot of mistakes. Thankfully, we also had an audio file. But working with the court reporter and opposing counsel to get the transcript right took a significant amount of time. Once finalized, we filed the transcript, along with a notice of appeal.

We worked diligently to draft the initial brief but still needed two extensions. New case law on fees was coming out almost weekly and that caused us to have to revisit and edit the brief many times. We supplemented the record and filed a request to take judicial notice. The bank also supplemented the record.

Just before we filed our initial brief, the bank filed a new lawsuit based on the same documents, the same alleged default date, and between the same parties. In that suit, the bank again stated—under penalty of perjury—that “Plaintiff is entitled to recover its attorneys’ fees under the parties’ agreement.” (Emphasis added.) So for approximately four years, the bank and its lawyers were simultaneously taking the position that there was no contractual relationship in one case, while claiming there was a contractual relationship in another—to avoid paying my clients their fees, while still trying to foreclose on their home. (The only difference between the two cases was that the HELOC in the second case purported to bear a specific indorsement that was not apparently on the HELOC in the first case.)

Plaintiff and their lawyers’ inconsistency was apparently knowingly dishonest. And they were taking these contrary positions just to try to save an extremely profitable bank a relatively small amount of money. Even though the basis of the appeal centered around fees and costs, due to the bank’s posturing and the evidence that now showed that the bank really did reject payments and improperly force-place insurance, this case was an excellent cause to provide service and seek justice.

The bank sought two extensions to file their answer brief. And we eventually filed our reply, appellate fee motion, request for oral argument, and second request for judicial notice.

The bank objected to our request for appellate fees and also requested their own judicial notice. Due to several misstatements in their judicial notice request, we objected and moved to strike. They eventually responded and the court denied our motion without addressing the merits.

In early January 2019, the Florida Supreme Court issued an opinion in Glass and our appellate court ordered both sides to brief the case. After those briefs were submitted, the Florida Supreme Court withdrew Glass as jurisdiction had been improvidently granted.

A few months later, the appellate court in our case issued a per curiam affirmance of the trial court’s denial of entitlement. It also denied our appellate fee motion. I took the night off and began working on the motion for rehearing early the next day. I recall working on it nearly every day for fourteen days straight. Without seeking an extension, we timely filed a Motion for Rehearing En Banc, Motion for Rehearing, or in the Alternative, Motion for Written Opinion. The other side sought and obtained an extension, and then filed a response. Two months later, the appellate court issued an order holding the case in abeyance pending the outcome of three other cases pending before the Florida Supreme Court.

Then, over a year and a half after we filed our motions for rehearing or written opinion, the Florida Supreme Court issued its Page decision. Eight months later, the appellate court in our case ordered us to brief it. The bank sought and obtained more time, and a longer page limit for the briefs. We opposed the page limit extension. The bank eventually filed their supplemental brief, and we filed ours.

Finally, in 2022, the appellate court granted our motion for rehearing, reversed the order denying entitlement to trial level fees and costs, and awarded us appellate fees.

Plaintiff and its counsels took litigious, and at times disingenuous positions during this case. Here are some examples:

• In its answer brief:
  • To try to argue that my clients waived their main argument on appeal, the bank stated that my clients did not seek fees under the mortgage at the trial level. That could have destroyed our case, if it were true. But section one of our trial-level Memorandum of Law on Attorneys’ Fees states: “The Mortgage, Assignment of Mortgage, and Florida Statute 57.105(7) authorize Defendants’ recovery of attorneys’ fees” and the body of that section explains this. During the entitlement hearing, the trial judge reiterated our position: “So what you’re saying is, Judge, we are a party to the mortgage. We can rely on 57.105, Sub. 7 because we are a party to the mortgage. . . .”
  • Plaintiff stated “the plain terms of [section 57.105(7)], require[] [my clients] also establish that XXX Bank was a party to the loan documents by establishing XXX Bank’s standing.” (Emphasis added.) Even without the parties’ names, the section’s “plain terms” do not state that.
  • Plaintiff claimed our discovery “focused specifically on their standing defenses.” But the truth is we propounded fifteen interrogatories (six of which pertain to standing), twenty-two requests for admissions (fourteen of which pertain to standing), and twenty-five requests for production (five of which addressed standing).
• In the bank’s supplemental brief addressing Page, plaintiff stated:
  • In Page v. Deutsche Bank Tr. Co., 308 So. 3d 953 (Fla. 2020), the Florida Supreme Court, treating a note and mortgage as one contract, confirmed prevailing borrowers seeking fees under § 57.105(7) have the burden to show through competent, substantial evidence that their opposing party from whom they seek fees had standing to enforce the note and mortgage at some point in the proceedings.

The Page opinion does not state that. It does not even use the word “substantial,” and it only uses the word “competent” in one unrelated provision pertaining to statutory interpretation. Id. at 958. Plaintiff repeated this false statement of law in its brief.

• In 2021, I attended a hearing in the second case with one of the bank lawyers who handled both cases. At that hearing, in an attempt to refute a possible estoppel argument (had the bank prevailed on appeal), the bank lawyer stated that the two cases did not pertain to the same note. This would be a critical factual distinction, if it were true. I refuted the comment and accused the bank lawyer of making a false statement of fact. He did not immediately respond or offer an apology, but instead only later in the proceeding offered an explanation about the indorsements being different. In a follow up email to the same bank lawyer, I wrote: “And in court the other day, you easily and apparently without the need to immediately correct yourself, informed the court that the two [ ] cases did not pertain to the same promissory note. That was a material misstatement of fact.” The bank lawyer responded, but only to acknowledge receipt. He never denied this.
• About two weeks before the appellate opinion was issued, the same bank lawyer emailed me as part of plaintiff’s only settlement proposal: “If the court reverses itself and allows you to proceed, the parties will be in for a long drawn-out attorney’s fee battle, one which you can be sure [XXX] Bank will fight in the trial court and then on appeal if the facts warrant.”
• And of course, plaintiff’s argument to deny entitlement was litigious and disingenuous from day one. Despite claiming otherwise throughout this case, plaintiff knew there was a contract between the parties.

My clients offered to pay the bank $50,000 to settle early in the case. But the bank and its lawyers never responded. After the suit was voluntarily dismissed, we again proposed settlement. But again, the Bank did not respond. The bank litigated this case for approximately six years—trying to wrongfully foreclose on my client’s home while taking outrageous positions to deny paying fees that it rightfully owed. Had it been reasonable, and had my clients and I had our way, this case would have been resolved years ago—with the bank receiving money from my clients and not paying our side for fees or costs (or anything else).

This case was always about much more than money to me. Still, money is important and I devoted a significant portion of the last several years of my life to serving these clients. While it was much harder and took much longer than I would have liked, justice ultimately prevailed. And I’m so grateful it did!

If you or someone you know needs help with real estate closings, foreclosure defense, consumer protection, personal injury, probate or estate planning, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

But still, knowledge is power and here is the latest:

Fourth Quarter 2021 Broward County Single Family Homes

Fourth Quarter 2021 Broward County Townhouses and Condos

Fourth Quarter 2021 Miami-Dade County Single Family Homes

Fourth Quarter 2021 Miami-Dade County Townhouses and Condos

Fourth Quarter 2021 Palm Beach County Single Family Homes

Fourth Quarter 2021 Palm Beach County Townhouses and Condos

Knowledge is power and here is the latest:

October 2021 Miami-Dade County Single Family Homes

October 2021 Miami-Dade County Townhouses and Condos

October 2021 Broward County Single Family Homes

October 2021 Broward County Townhouses and Condos

October 2021 PalmBeach County Single Family Homes

October 2021 Palm Beach County Townhouses and Condos

If you or someone you know needs help with a personal injury, real estate, foreclosure defense, or consumer protection matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

I also regularly lose myself listening to my clients’ stories, while learning about their hopes and fears. And I love preparing for and handling a closing, hearing, trial, or appeal. I’m still not exactly sure why I love helping people with real estate-related issues, but there is no way around it—serving people in foreclosure defense and real estate transactions is a big part of who I am.

The clients involved in this case—who I now consider dear friends connected by a wonderful story of seeking and obtaining justice—first called me in the middle of the pandemic. They were allegedly served with a foreclosure suit on August 13, 2020. The property involved is their family home. It’s where they raised their son, a pre-med college student, and where they are still raising their daughter, a top-ranked high school student.

My clients, Mr. and Mrs. Passley, work hard. They are serious-minded people. And their combined income is more than enough to pay for their home and living expenses. At all times, they have been ready, willing, and able to pay the subject loan. And here, that subject loan was a second mortgage—a home equity line of credit (HELOC) with a $53,500 credit limit. In addition to having variable principal, the loan also had a variable interest rate. 

Unlike most other loan documents, the ones in this case did not reference the amount, location, or date for payment. Rather, pursuant to paragraph seven of the HELOC, the lender promised to provide the Passleys periodic statements, for each monthly billing cycle, telling them where, when, and how much to pay.

The loan was taken out in December of 2006 and was originally with IndyMac. For the first nineteen months, IndyMac sent statements every month, and the Passleys paid, as indicated in the statements. There were no issues. The total principal, interest, taxes, and insurance for the first and second mortgage was about $2,000 per month. This was not a problem for the Passleys. 

But in July of 2008, IndyMac went bankrupt and the statements stopped. Mrs. Passley called IndyMac so they could pay. (Paying on time is important to the Passleys, as is having good credit and honoring their agreements.)

Initially, Mrs. Passley was told that statements would soon resume. But they never did. She kept calling. At some point, she could no longer get through to talk to anyone. The Passleys figured that someday someone would reach out and send statements. And they hoped that day would be soon—before the balance started to pile up.

Even though Mr. and Mrs. Passleys’ address and phone numbers remained the same from the day they took out the loan; they never received a monthly statement (or even a phone call) after IndyMac failed. Instead, twelve years after the statements stopped and without any attempt to try to resolve this, Ashland Capital Fund filed suit and served the Passleys—seeking to forcibly remove them from their home in the middle of a pandemic.

Ashland Capital Fund purchased the loan in 2019. And like many other companies that preceded them, they did not send statements, as required, informing the Passleys of the amount, date, and address for payments.

At trial in this case, we argued and proved that it was the bank that breached their contract, not the borrowers. And it was a material breach. Without informing the Passleys where, when, and how much to pay, Mr. and Mrs. Passley could not pay. And, they could not be in breach or in “default.”

Paragraph five of the Mortgage states: “Mortgagor agrees that all payments under the Secured Debt will be paid when due and in accordance with the terms of the Secured Debt and this Security Instrument.”

Paragraph seven of the HELOC states:

We [the lender] will send you a periodic statement for each Billing Cycle in which there is a balance owing under your Line of Credit, or a credit balance, or a finance charge is imposed. The periodic statement will show, among other things, the amount of the minimum monthly payment (the “Minimum Payment”) and the date by which it is due. You must pay us at least the Minimum Payment indicated on the periodic statement by the date indicated on the statement. . . . If your Minimum Payment includes any other items authorized by this Agreement, we will so advise you, and the periodic statement will include an itemization of such amounts. You must send all payments to our attention at the address indicated on the periodic statement.

(Emphasis added.)

This is not mere esoteric legalese. These are clear and unambiguous contract terms.

The payments are due when the statements say they are due. And they must be mailed to the address specified on the statement, and must be for an amount that is specified in the statement. In order to be in default, the Passleys would have to be told, in a statement, when to pay, where to pay, and how much to pay. And then, they’d have to fail to pay.

For a very long time, the lender and its successors failed to do what they needed to do in order to trigger the Passleys’ contractual obligations. And the right to foreclose under the law, and as stated in the HELOC and Mortgage, hinged on the Passleys being in “default.” But that never happened.

“A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So. 2d 177, 179 (Fla. 5th DCA 1993) (citing Medical Center Health Plan v. Brick, 572 So.2d 548 (Fla. 1st DCA 1990)). 

“[A] party who, by his own acts, prevents performance of a contract provision cannot take advantage of his own wrong.” Id. (citing Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929); Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928)).

The Passleys should not be held responsible for the bank’s breach of contract. Especially, since a foreclosure court sits “in equity.” Pursuant to the Florida Supreme Court:

It is a maxim of equity that ‘equity regards that as done which ought to have been done’, which means that equity will treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final acts, contemplated by the parties had been executed exactly as they ought to have been.

Johnson v. Dichiara, 84 So. 2d 537, 539 (Fla. 1955) (emphasis added) (citations omitted).

So not only is foreclosure not appropriate under the law—as the Passsleys were not in “default”—in equity, the court should not permit foreclosure under these circumstances either.

We also pleaded and argued the doctrine of laches. Pursuant to the Florida Supreme Court:

A suit is held to be barred on the ground of laches where, and only where, the following appear: (1) Conduct on the part of the defendant, or one under whom he claims, giving rise to the situation of which complaint is raised; (2) delay in asserting the claimant’s rights, the complainant having had knowledge or notice of the defendant’s conduct and having been afforded an opportunity to institute the suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. All these elements are necessary to establish laches as a bar to relief.

The Florida Bar v. Lipman, 497 So. 2d 1165, 1167 (Fla. 1986) (internal citation omitted.

As part of this, we argued that it is important to dispel the frequently asserted notion that borrowers who do not pay are somehow not prejudiced. Some courts have stated this in cases involving borrowers who continue to live in a home even though they have not paid as agreed. But if you are conscientious and can pay, and take your credit and finances seriously, living with an unresolved issue that could cause a sheriff to show up at your door and kick you out with twenty-four-hours notice, is harm/prejudice. Delay, caused by Ashland Capital Fund and its predecessors, was not a benefit to the Passleys.

If the court wished to bar the action under laches, we had no objection. But, for several reasons, we felt it was best to focus most of our argument on the law (that the Passleys are not in default) and in equity, praying that the fairest result is that the court do what ought to be done. The court should “treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final acts, contemplated by the parties had been executed exactly as they ought to have been.” Johnson, 84 So. 2d at 539 (emphasis added).

I also relied on Demorizi v. Demorizi, 851 So. 2d 243 (Fla. 3d DCA 2003), a case pertaining to the distribution of marital assets. Under section 61.075(1), Florida Statutes, those are actions in equity.  (Similarly, section 702.01, Florida Statutes, states that mortgages are foreclosed in equity.)

In instances such as this we should be mindful of the duty of appellate courts to fashion equitable relief:

All courts of appeal are required to do equity. Sometimes that requires us to order that something be done which is just and equitable. Put differently, it is the maxim “equity will do what ought to be done.” Once a court of equity acquires jurisdiction over a dispute, it is authorized to administer full, complete, and final relief. Generally, courts of equity have wide discretion in fashioning remedies to satisfy the exigencies of the circumstances.

Demorizi, 851 So. 2d at 245 (internal citations omitted). Further:

Equity delights to do justice and not by halves. . . . “[A] court of equity is a court of conscience; it should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience.” An equity court will never be thwarted from fashioning a decree that will do right and justice between the parties.

Id. at 246.

There was also another important issue that helped the court “weigh the equities.” In discovery, and surprisingly as a proposed trial exhibit, plaintiff’s counsel provided us with a copy of an “Asset Sale Agreement.” [*See more at the end of this post for the issues we had to overcome to be able to admit the Agreement into evidence.] According to section 4(d) of the Agreement, Ashland Capital Fund is a “sophisticated investor.” And like many other “sophisticated investors,” it chose to buy second mortgages that are allegedly in default. That’s the business they’ve chosen. It’s no secret that the odds of collecting allegedly defaulted second mortgages are not great. It is also common knowledge that the entities that buy these loans pay, as the phrase goes, “pennies on the dollar.”

While preparing for trial, I stumbled into some law that addresses how being a “sophisticated investor” is legally significant. That status as a purchaser precludes certain exceptions to the rule of “caveat emptor,” also known as “buyer beware.” Generally, if you buy something, there is no right to a refund or other recourse if something is wrong with the item you bought. There are exceptions like fraud. But if you are a “sophisticated investor,” exceptions to the rule of “caveat emptor” either do not apply or are very limited in application.

Also, pursuant to section 4(f) of the Asset Sale Agreement, Ashland Capital Fund “acknowledges that the Assets may have limited or no liquidity and [it] has the financial wherewithal to own the Assets for an indefinite period of time and to bear the economic risk of an outright purchase of the Assets and a total loss of the Purchase Price for the Assets.” (Emphasis added.)

Pursuant to section 4(h):

Purchaser [Ashland Capital Fund] acknowledges and agrees that Seller has not and does not represent, warrant or covenant the nature, accuracy, completeness, enforceability or validity of any of documents provided to Purchaser related to the Assets, or any information or documents made available to Purchaser or its counsel, accountants or advisors in connection with the Assets . . . and all documentation, information, analysis and/or correspondence, if any, which is or may be sold, transferred, assigned and conveyed to Purchaser with respect to any and all Assets is sold, transferred, assigned and conveyed to Purchaser on an “AS IS, WHERE IS” basis, WITH ALL FAULTS. 

(Emphasis added.)

This is the deal Ashland Capital Fund, a “sophisticated investor,” chose to make. And again, from N. Am. Van Lines, 616 So. 2d at 179: “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” 

Ashland Capital Fund got what it bargained for—assets with faults. But here, the fault was due to the lender and its successors, including Ashland, not honoring the terms of the HELOC and Mortgage. The Passleys did not get what they bargained for. They did not get statements telling them when, where, and how much to pay. And if they did—the evidence was undisputed—the Passleys could have and would have paid. In equity, this family did not deserve to lose their home. 

Thankfully, the court agreed: 2021-05-14 Final Judgment (As to paragraphs seven through nine in the Judgment, the bank witness claimed they mailed twelve months of payment coupons with two letters, one sent to my client just before the lawsuit and another to me after the suit was filed. Only there were no copies of coupons attached to those letters and nothing referencing them in the letters, or anywhere else. And on cross examination, in addition to pointing that out, I hammered the witness into admitting that even if they did attach coupons, there was no way to know in advance what the payment amount would be as the interest adjusted monthly pursuant to the loan terms. As stated in paragraph nine of the Judgment: “Plaintiff’s claim that Allied mailed payment coupons is not accepted.”)

*When I went to admit the Asset Sale Agreement, opposing counsel objected, even though they listed and filed it as an exhibit. During COVID, all proposed exhibits had to be uploaded days before trial via the court’s case management system. The bank uploaded the Agreement there too. The Judge was not moved by my argument that I relied on their assertions and even though they did not seek to admit it, I wanted to in my case in chief. I argued I should be able to rely on the words and actions of other lawyers. Had they not done this, I would have called an appropriate witness to get it admitted. This part of the trial was late in the day and I was getting nowhere. The Judge eventually agreed that the Agreement was non-hearsay as it was not being admitted for the truth but rather, what was agreed to was the key, i.e. the document had independent legal significance. All I needed to do was authenticate it. The Judge invited me to question the bank witness but I knew where that would get me. The witness, who claimed to be all-knowing about the case moments earlier, would suddenly claim she didn’t know a thing about this Agreement. So I pulled up case law on authentication (Casamassina v. U.S. Life Ins. Co. in City of New York, 958 So. 2d 1093 (Fla. 4th DCA 2007) and walked the Judge through it. I only needed to meet a prima facie burden, which could be established with circumstantial evidence, to show the proposed exhibit was really a copy of the contract. Once I meet that, the burden shifts to the bank to put on evidence to show that the copy is not authentic. I next argued that the bank and its lawyers have told me and the court in several ways that this is a copy of the Agreement. I pulled up their public filings and submissions and walked the Court through that. If their objection is that the contract is not authentic, then we should come back to have an evidentiary hearing to address why they are filing and submitting fabricated documents, and misleading the court and parties. I stopped and asked the bank lawyer: “Is your objection that this document is not authentic—that it’s fabricated or forged in some way?” She said no and went into a speaking objection about non-dispositive issues. I cut her off and said: “Your Honor, based on that response, this Agreement must now be admitted into evidence.” The Judge changed his prior ruling and admitted the Agreement.

If you or anyone you know needs help with a personal injury, real estate, foreclosure defense, or consumer protection matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Knowledge is power and here is the latest:

February 2021 Miami-Dade-County Single Family Homes Summary

February 2021 Miami-Dade-County Townhouses and Condos Summary

February 2021 Broward County Single Family Homes Summary

February 2021 Broward County Townhouses and Condos Summary

February 2021 Palm Beach County Single Family Homes Summary

February 2021 Palm Beach County Townhouses and Condos Summary

If you or someone you know needs help buying, selling, or refinancing real estate, defending against foreclosure, obtaining a fresh start in bankruptcy, or fighting improper debt collection, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Knowledge is power and here is the latest:

January 2021 Miami-Dade County Townhouses and Condos

January 2021 Broward County Townhouses and Condos

January 2021 Palm Beach County Townhouses and Condos

If you or someone you know needs help defending against foreclosure, fighting improper debt collection, obtaining a fresh start in bankruptcy, or buying, selling, or refinancing real estate, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!