Florida Foreclosure Defense Lawyer Blog

What are Defenses to a claim of breach of contract? A party may prevail on a claim for breach of contract only by pleading and proving all the requisite elements claim.  Therefore, one defense is the assertion that the plaintiff failed to properly plead and prove the elements of this cause of action (i.e. Existence of…

Who Pays for Attorney’s Fees? In Florida, each party generally pays for his or her own attorney’s fees unless otherwise provided for by statute or contract.  In many instances the statute or contract states that an award of attorney’s fees goes to the “prevailing party”.   Thus, the proof of fees is postponed until a decision is made…

How much can a homeowner’s association fine a member? An association may impose reasonable fines for violations. Each violation against a member, their tenant, guest, or invitee for the owner’s or occupant’s failure to comply with the declaration, bylaws, or reasonable association rules, except as otherwise specified in the governing documents, may result in a…

Wrongful Death-FAQs What are the Elements of the prima facie case of wrongful death? In Florida, a cause of action for a wrongful death did not exist at common law.  The Florida Wrongful Death Act, Fla. Stat. §§ 768.16 to 768.26, creates a statutory cause of action.  In a wrongful death action, a plaintiff must allege and…

Failure of Conditions Precedent as an Affirmative Defense The affirmative defense of “Lack of conditions precedent” is sometimes referred to as “failure of conditions precedent”.  A condition precedent is defined as a condition or an event that must occur before a right, claim, duty, or interests arises (https://www.law.cornell.edu/wex/condition_precedent).  Lack of Conditions Must be Pled with Particularity or its Waived What litigants should know…

Non-binding arbitration, a practice that’s been gaining popularity lately, has its pros and cons.  In Florida, non-binding arbitration is now allowed in many situations, as explained in the updated Chapter 44 of the Florida Statutes. This has led to a big increase in its use, with many judges and courts choosing it instead of mediation.   What…

Did you know that a bank can legally serve a defendant with a foreclosure complaint by publishing it in a newspaper? It’s true! If personal service of process is impossible, Florida Statute (F.S.) Chapter 49 allows constructive service of process (i.e., service by publication) in foreclosure actions. But there are some things to keep in…

Florida law allows for a unique statutory foreclosure procedure that speeds up the foreclosure processes for lenders.  This can be troublesome for borrowers. During the process, the bank can ask the court to show cause why a final judgment of mortgage foreclosure should not be made. This shifts the burden to borrower to demonstrate why the…

Florida Statute 697.07 allows banks to obtain an assignment of rents as additional security in the event of default of a mortgage.  Sending a written demand under Florida Statute 697.07(3) is a crucial step in perfecting the lender’s right to rental payments. After default and upon a written demand by the mortgagee, the mortgagor must deliver…

There’s no one size fits all solution to stop a foreclosure nor is there a silver bullet. While there might be temporary “cheat moves,” they’re not sustainable. Let’s instead explore several legitimate alternatives that can allow someone keep their home. Deed in Lieu of Foreclosure By opting for a deed in lieu of foreclosure, borrowers…