[RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Wed Feb 22 12:03:01 PST 2012

Get the assignment.  I litigated a case like this in federal court last year (although D'Oench wasn't raised) and the transferring documents from FDIC to the new bank excluded liabilities of the original bank.

Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub at becker-poliakoff.com
http://www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE at becker-poliakoff.com. 
________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Jason Brazelton
Sent: Wednesday, February 22, 2012 2:57 PM
To: CHernicz at herniczlegal.com; 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Thank you Lee and Charles.

The bank's attorney is asserting that it was an assignment of the loan from the FDIC. I don't know if that makes a difference under D'Oench or not...

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward this message to another person or party, that action could constitute a waiver of the attorney/client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, February 22, 2012 12:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

I have two cases where this exact issue is involved, and the purchasing bank does not have any liability under 713.3471 under the FDIC sale agreement.

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz at HerniczLegal.com

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Wednesday, February 22, 2012 12:03 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Although I don't know the answer to your specific question, you did mention that the FDIC sold the ASSETS to the successor bank.  If that's the case, then they may not have transferred the liability.  The successor bank may not be liable at all for the original bank's failure to comply with 713.3471.

Lee A. Weintraub
Board Certified Construction Lawyer

Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub at becker-poliakoff.com
www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority.  The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE at becker-poliakoff.com <mailto:CARE at becker-poliakoff.com> .

________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Jason Brazelton
Sent: Friday, February 17, 2012 11:33 AM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] D'Oench/Duhme and Fla. Stat. 713.3471

Folks, I have a question relating to the interplay of a statutory claim under Chapter 713 and the D'Oench/Duhme defense.

Lienor gets pulled into a commercial mortgage foreclosure on a large construction project. The original lender did not provide notice of its intent to cease disbursement of funds pursuant to F.S. 713.3471. Subsequently, the original bank failed (big surprise) and the FDIC took over. The FDIC sold assets to another bank, which then instituted the mortgage foreclosure.

Lienor files a counterclaim for violation of 713.3471. On motion to dismiss, the Bank raises the D'Oench/Duhme doctrine, which is now codified in 12 U.S.C. 1823(e), to defeat the statutory claim.

My understanding of D'Oench/Duhme is that it is/was intended to prevent oral agreements between a failed bank and its customer that the FDIC/purchasing bank could not be aware of. However, it seems to be applied fairly liberally and appears to defeat most claims. I also read somewhere that the D'Oench/Duhme doctrine will defeat even statutory claims. However, I did not find a Florida case on point in my research.

Has anyone dealt (or currently dealing) with  a similar situation? If so, what was the outcome? Can anyone direct me to case law that discusses D'Oench/Duhme and statutory claims?

Thoughts or comments would be appreciated.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward this message to another person or party, that action could constitute a waiver of the attorney/client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Paul J. Kelly
Sent: Friday, February 17, 2012 10:35 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

I agree with Don in the sense that the most direct route may be procedural with the voluntary dismissal. Under the voluntary dismissal fees go to the party (defendant) that was dismissed in certain jurisdictions. Last I checked, there is a conflict between jurisdictions and the award of fees to a party that was voluntarily dismissed.

839 So.2d 744, District Court of Appeal of Florida, Fourth District. Walter D. PADOW, M.D., P.A., Appellant, v. KNOLLWOOD CLUB ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. No. 4D02-470. | Jan. 29, 2003. | Rehearing Denied March 20, 2003.

Sincerely,

Paul J. Kelly

Paul J. Kelly, P.A.

2959 First Avenue North

St. Petersburg, Florida 33713

(727) 327-3935

CONFIDENTIALITY NOTICE: A law firm is sending this message; This e-mail message including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material.  Any unauthorized review, use, disclosure or distribution or use of the contents of this information is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, destroy all copies of the original message, and do not disseminate it further. This message may not be reviewed, printed, displayed, or re-transmitted without the sender's consent. All rights protected.  There may be no further distribution or publication of this communication or its contents without the express consent of this law firm.

IRS Circular 230 disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

P Think Green!  Unless necessary, please do not print this email.

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

See Alhambra Homeowners' Association, Inc. vs. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)

http://www.4dca.org/Dec%202006/12-13-06/4D06-835.op.pdf

This involves voluntary dismissal of a suit without prejudice, but I imagine the same would result when a party is dropped.

- Don

Donald R. Walters, Esq.

JOHNSON & WALTERS P.A.

1401 North University Drive

Suite 301

Coral Springs, Florida 33071

dwalters at johnsonwalters.com

Phone: (954) 755-9880

Fax:  (954) 755-9899

www.johnsonwalters.com <http://www.johnsonwalters.com/>

P Please consider the environment before printing this e-mail.

CONFIDENTIALITY NOTICE:  This e-mail message, including attachments, is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, is legally privileged, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material.  Any unauthorized review, use, disclosure or distribution is prohibited.  If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.  If you are the intended recipient but do not wish to receive communications through this medium, please so advise the sender immediately.

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] <mailto:%5bmailto:constructionlaw-bounces at lists.flabarrpptl.org%5d>  On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees.  Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

Lee A. Weintraub
Board Certified Construction Lawyer

Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub at becker-poliakoff.com
www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority.  The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE at becker-poliakoff.com <mailto:CARE at becker-poliakoff.com> .

Click here <http://www.floridaconstructionlawauthority.com/>  to subscribe to our complimentary Florida Construction Law Blog.

________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] <mailto:%5bmailto:constructionlaw-bounces at lists.flabarrpptl.org%5d>  On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw at lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid.  Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien.  (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question:  Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet.  Any cites or insights you could offer would be appreciated.

  <http://www.kirwinnorris.com/>

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
Telephone: 407-740-6600
Facsimile: 407-740-6363
blc at kirwinnorris.com
www.kirwinnorris.com <http://www.kirwinnorris.com/>

This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privileged information.  If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited.  If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments.  Thank you.

Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service.  If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

________________________________

No virus found in this message.
Checked by AVG - www.avg.com
Version: 2012.0.1913 / Virus Database: 2112/4815 - Release Date: 02/17/12
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 823 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 2351 bytes
Desc: image002.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/image002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 388 bytes
Desc: image003.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/image003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 3581 bytes
Desc: image004.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/image004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 4899 bytes
Desc: image005.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120222/5ffa4068/image005.jpg>