How to Publish a Legal Notice of a Foreclosure Sale

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial CollectionsIn every foreclosure action, the foreclosing lender will be required to publish some sort of legal advertisement or notice in a newspaper (e.g. the Notice of Foreclosure Sale).

How Lenders Can Avoid Losing Their Collateral by Paying Off the Borrower’s Property Tax Obligations

Jimerson Firm

The person who bought the certificate will have the right to collect the tax debt from the property owner, plus interest. After the property is sold at a public auction tax deed sale, the lender has the right to redeem the property pursuant to Section 702.05

Insiders

Sign Up for our Newsletter

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Lenders May Still Have to Participate in Foreclosure Mediation in Florida

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial CollectionsIn response to the mortgage foreclosure crisis, the Supreme Court of Florida established a statewide mandatory mediation program for residential mortgage foreclosures.

What Lenders Need to Know About § 702.036 and the Finality of Foreclosure Sales

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial Collections

Lenders Beware: Foreclosure Judgments Can be Set Aside At Any Time Before The Sale Occurs

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial CollectionsAlthough a lender may have won the battle by obtaining a final judgment of foreclosure from the court, it may not win the war. Pursuant to Section 702.07

How to Foreclose on Mortgaged Land in Different Counties

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial CollectionsIn Florida, foreclosure actions must be brought in the county where the land is located. This is typically referred to as the “local action rule.”

Filing a Foreclosure Lawsuit? Make Sure You Check the Local Rules

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial CollectionsIn Florida, mortgage foreclosure lawsuits are filed in the county where the property is located.

The Top Five Things Lenders Need to Know About Florida’s Construction Lien Law

Jimerson Firm

However, there are important aspects of the Construction Lien Law that can directly affect the rights and obligations of lenders in numerous ways. Banking & Financial Services Industry Legal Blog Banking and Lender Liability Law Creditors Rights and Commercial Collections

How to Get a Deficiency Judgment After a Foreclosure Sale

Jimerson Firm

Banking & Financial Services Industry Legal Blog Creditors Rights and Commercial Collections

SBA Loans: Offers in Compromise

Jimerson Firm

5) The borrower’s proposed treatment of the SBA loan must be fair and equitable in comparison to the treatment to be received by the borrower’s other creditors. Banking & Financial Services Industry Legal Blog Banking and Lender Liability Law Creditors Rights and Commercial Collections

Loans 61

Mitigating Risks Associated with Hotel, Restaurant and Entertainment Industry Economic Challenges – Part 7: Expediting the Commercial Foreclosure Process Under Section 702.10, Florida Statutes

Jimerson Firm

Banking & Financial Services Industry Blog Banking and Lender Liability Law Business Litigation Creditors Rights and Commercial Collections Real Estate LawThe first half of this series evaluated options available to lenders prior to instituting a commercial foreclosure action.

Mitigating Risks Associated with Hotel, Restaurant and Entertainment Industry Economic Challenges: Part 6 – Considerations for the Appointment of a Receiver During Commercial Foreclosures

Jimerson Firm

For example, the receiver may be able to reject executory contracts of the receivership estate during the receivership, sell receivership property free and clear of existing liens, settle claims with the approval of the court and assert rights held by the borrower.

Foreclosing on Property With a Mobile Home

Jimerson Firm

Foreclosures in Florida are judicial, meaning the secured creditor must file a lawsuit. On the other hand, the lender may not have any rights to the mobile home, but may still proceed with foreclosure of the real property.

How to Maximize Recovery on a SBA Loan by Negotiating a Workout Agreement

Jimerson Firm

Banking & Financial Services Industry Blog Banking and Lender Liability Law Creditors Rights and Commercial Collections

SBA Loans: How to Maximize Recovery by Liquidating Real Property

Jimerson Firm

Lenders must give careful consideration on choosing this method because it may (unless otherwise negotiated in the written agreement) lose the right to collect any deficiency, and the property will remain subject to any existing liens.

Mitigating Risks Associated with Hotel, Restaurant and Entertainment Industry Economic Challenges: Part 4 – Assignment of Rents Under Section 697.07, Florida Statutes

Jimerson Firm

Losing the Right to Collect Rents: Junior Foreclosure Sales. It is important to note that senior mortgage holders may lose the right to collect rents during the pendency of a foreclosure action if a junior mortgage holder has previously foreclosed on its junior mortgage.

Serving a Defendant in a Residential Foreclosure Action by Publication

Jimerson Firm

Banking & Financial Services Industry Blog Creditors Rights and Commercial CollectionsA residential mortgage foreclosure action is initiated in Florida by filing a verified complaint with the appropriate court.

How Can a Secured Creditor Repossess Collateral Without Breaching the Peace?

Jimerson Firm

In the event the borrower defaults, usually by failing to make loan payments, a secured creditor has a right to take possession of the collateral. The quickest and cheapest way for a secured creditor to take possession of the collateral is by self-help repossession.

A Proper Final Judgment of Foreclosure: Form 1.996(a)

Jimerson Firm

In 2014, Form 1.996(a) was further amended to add titles, update the statutory reference to time for right of redemption, and add a paragraph on attorneys’ fees. Banking & Financial Services Industry Blog Creditors Rights and Commercial Collections

Canceling and Rescheduling a Mortgage Foreclosure Sale Now Requires a Motion

Jimerson Firm

Failure to give proper notice will be a violation of a party’s due process rights, and will subject the movant or movant’s counsel to sanctions. Although the motion was filed as an “emergency,” failure to notify defendant’s counsel was a violation of the defendant’s due process rights.

Does a Commercial Landlord Have a Duty to Mitigate Damages After a Tenant Breaches the Lease Agreement?

Jimerson Firm

If a written lease agreement exists, the written lease agreement would govern the rights and obligations of the parties upon a breach of the lease agreement by the tenant.

SBA Loans: How to Maximize Recovery by Liquidating Personal Property

Jimerson Firm

Self-Help Repossession: In Florida, a secured creditor may use self-help repossession to take possession of collateral, provided its efforts do not breach the peace. In Florida, the secured creditor must notify the debtor and any secondary obligor when selling the personal property collateral.

Mitigating Risks Associated with Hotel, Restaurant and Entertainment Industry Economic Challenges: Part 5 – Commercial Foreclosures 101

Jimerson Firm

The receiver can stop the bleeding and perhaps even right the ship during the pendency of the foreclosure action—when the lender would otherwise be helpless to do so.

Florida’s Fast-Track Residential Foreclosure Process

Jimerson Firm

Banking & Financial Services Industry Blog Creditors Rights and Commercial Collections

Mitigating Risks Associated with Hotel, Restaurant and Entertainment Industry Economic Challenges – Part 3: Commercial Mortgage Default Options Including Acceleration and Enforcement of Personal Guaranties

Jimerson Firm

3d DCA 2006) (“In Florida, an acceleration clause in a mortgage confers a contract right upon the note or mortgage holder which he or she may elect to enforce upon default.”). The guarantor’s right to revoke or terminate the guaranty depends on the language in the guaranty.

Overview of Florida’s New Uniform Commercial Real Estate Receivership Act

Jimerson Firm

The Act codifies existing common law in Florida regarding the right to have a receiver appointed by the court in commercial foreclosure actions, and provides much needed clarity, predictability, and uniformity on the standard for the appointment of a receiver and the powers of receivers.

Ninth Circuit Holds that the One-Year Period in Sec. 727(a)(2) is not Subject to Equitable Tolling

The Creditors Rights

DeNoce filed an adversary proceeding, seeking the denial of Neff’s discharge under § 727(a)(2) of the Bankruptcy Code, asserting the transfer of the condominium was made with intent to hinder, delay or defraud creditors. The court stated: “At the core of the Bankruptcy Code are the twin goals of ensuring an equitable distribution of the debtor’s assets to his creditors and giving the debtor a fresh start.”

Eleventh Circuit Holds Bankruptcy Rules Applicable to Matters on Which the Reference has been Withdrawn to the U.S. District Court

The Creditors Rights

The facts in Roxenberg arose from the dismissal of an involuntary bankruptcy petition, followed by the debtor’s filing an adversary proceeding against the petitioning creditors seeking compensatory and punitive damages as well as attorney’s fees incurred in defending the involuntary petition and in prosecuting the adversary proceeding. The petitioning creditors filed the motion within the 28-day deadline in the Federal Rule, but after the 14-day deadline in the Bankruptcy Rule.

Supreme Court Expands Creditors’ by Allowing Denial of a Discharge Under Sec. 523(a)(2)(A) if Debtor Transfers Assets in Violation of State Fraudulent Transfer Statute

The Creditors Rights

Section 523(a)(2)(A) of the Bankruptcy Code allows a creditor to obtain a judgment denying its debtor a discharge of debts incurred by false pretenses or actual fraud. However, if the debt itself was not incurred by actual fraud, but the debtor subsequently transfers his assets with the intent prevent its creditors from obtaining payment, may the creditor still obtain a judgment denying the debtor’s discharge under § 523(a)(2)(A)?

Delaware Bankruptcy Court Holds LLC Operating Agreement Provisions Placing Sole Power in the Company’s Lender to Prevent a Bankruptcy Filing are Void as Against Public Policy

The Creditors Rights

In an important decision for debtors and creditors alike, the United States Bankruptcy Court for the District of Delaware has ruled that provisions in a limited liability company operating agreement, granting the company’s lender absolute power to prevent the company from filing a bankruptcy petition are unenforceable as against public policy. 1987) (“for public policy reasons, a debtor may not contract away the right to a discharge in bankruptcy.”).

Lenders Beware: Make Sure Your Borrower’s Organizational Documents’ Blocking Director Provisions Comply With State Law

The Creditors Rights

This Special Member had no right to distributions and was not required to make capital contributions. Bankruptcy Creditor Rights bankruptcy blocking director corporate governance operating agreement special directorMany lenders attempt to render their borrower bankruptcy remote by requiring the borrower to have on its board a director, known as a “blocking director,” whose consent is required for any bankruptcy filing.

Buyer Beware: a Sale “Free and Clear” is not Free and Clear of Claims Whose Holders Were not Provided Notice of the Sale Hearing

The Creditors Rights

Bankruptcy Creditor Rights 363(f) due process free and clear lack of notice notice successor liabilityThe Second Circuit ’s recent opinion in The Matter of: Motors Liquidation Company , 2016 WL 3766237 (2 nd Cir. 2016) should give pause to all buyers of assets from bankruptcy estates.

Eighth Circuit Holds a Lender to a Special Purpose Entity is not a “Person Aggrieved” by an Order Substantively Consolidating the SPE’s Bankruptcy Estate with Another Estate

The Creditors Rights

Each lender was a net winner of the Ponzi scheme and, therefore, not a creditor of the bankruptcy estate of its specific SPE when the bankruptcy filings occurred. To meet this standard, the order must diminish the person’s property, increase his burdens or impair his rights. They were not creditors of the estates. Bankruptcy Creditor Rights appeal bankruptcy filing Opportunity Finance person aggrieved Petters Company Ponzi scheme special purpose entity standing

Eleventh Circuit Reaffirms its Prior Ruling that Debt Collectors who File Time-Barred Proofs of Claim are Subject to Liability Under the Fair Debt Collections Practices Act, and Further Concludes its Holding does not Place the FDCPA in Conflict with the B

The Creditors Rights

On appeal, the Eleventh Circuit found no such conflict, stating “Although the code certainly allows all creditors to file proofs of claim in bankruptcy cases, the Code does not at the same time protect those creditors from all liability,” and that a particular group of creditors—debt collectors—may be liable for damages for violating the FDCPA if they file claims in chapter 13 cases they know to be time-barred.

Default Interest Rates are Presumed Reasonable Under Sec. 506(b), and a Bankruptcy Court May Not Use the Fair and Equitable Language of Sec. 1129(b) to Conclude Otherwise

The Creditors Rights

The Ninth Circuit BAP recently discussed on appeal the issue of whether a bankruptcy court may use the “fair and equitable” standard for confirmation in § 1129(b) to deny an oversecured creditor default interest on its claim to which it would otherwise be entitled under § 506(b). The creditor enjoys a presumption that the contracted for rate is reasonable, and the debtor bears the burden of demonstrating it is not, or that the rate is not enforceable under applicable non-bankruptcy law.