[RPPTL LandTen] FW: HB 75 - Foreclosure Bill of Rights
Neil B. Shoter
NShoter at shutts.com
Mon Dec 21 11:47:17 PST 2009
Best wishes to all of you for a happy holidays and Happy New year.
Attached is a recently proposed Bill creating a Foreclosure Bill of
Rights related to Homestead property and the comments of the
Construction Law Committee in the email below. If you have any
thoughts or concerns, please email Scott Frank our Vice
Chair/Legislative Subcommittee Chair.
Neil Shoter
Chair
<http://www.shutts.com/shutts100.jpg> Neil B. Shoter
Partner / LEED Accredited Professional
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________________________________
From: Meyer, George J. [mailto:gmeyer at carltonfields.com]
Sent: Tuesday, November 24, 2009 6:51 AM
To: Michael J. Gelfand
Cc: abfields at mindspring.com; Zikakis, Salome; reeseh at atritt.com;
Brown, Mark A.; Freedman, Robert S.; Sobien, Wayne; Wolf, Brian; Neil B.
Shoter
Subject: RE: HB 75 - Foreclosure Bill of Rights
Michael, I think each of those Comm's (and RP Problem Studies)
will look at this from a slightly different perspective. Accordingly, I
don't think any one Comm should take the lead. Rather, I think they all
should report back to you and Alan with their comments. If we start
getting conflicting responses or if you need help putting together a
consolidated response, we'll create a special ad hoc comm with a
representative from each of the competing comm's to see if we can get to
a final consensus report. Hopefully that wouldn't be necessary.
George
________________________________
From: Michael J. Gelfand [mailto:mjgelfand at gelfandarpe.com]
Sent: Monday, November 23, 2009 11:51 PM
To: Meyer, George J.
Cc: abfields at mindspring.com
Subject: RE: HB 75 - Foreclosure Bill of Rights
Dear George
Thanks. Do you want Const law or Mtg Law to take the lead on
this? I am certain that RP Lit, LL/Ten and Cdm PD will have a say.
Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Gelfand & Arpe, P.A. <http://www.gelfandarpe.com/>
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From: Meyer, George J. [mailto:gmeyer at carltonfields.com]
Sent: Monday, November 23, 2009 4:01 PM
To: Reese Henderson; Michael J. Gelfand
Subject: RE: HB 75 - Foreclosure Bill of Rights
Mike, I thought you might be interested in these comments from
the Construction Law Comm w/r to HB75.
________________________________
From: Reese Henderson [mailto:reeseh at atritt.com]
Sent: Monday, November 23, 2009 3:48 PM
To: rperez at mcper.com; Andrew Mayts; Barry Kalmanson; Brian
Stayton; Brian Wolf; Bruce Alexander; Wright, Cary W.; Daniel Moody;
David George; David Valdini; Ed Whalen; Elizabeth Ryan; Fred Dudley;
Gary Brown; Gene Atwood; Meyer, George J.; Glenn Williams; Roberts,
Hardy L.; Harry Malka; Howard Hollander; Kim Ashby; Larry Leiby; Lee
Weintraub; Smith, Mark A.; Matthew Belcastro; Cogburn, Matthew R.;
Michael McCabe; Michael Romm; Michael Sasso; Michelle Reddin; Thompson,
Patricia H.; Peter Brandt; Robert Doan; Robert Emmanuel; Robert Worman;
Salvador Jurado; Sandra Kennedy; Shawn Heath; Stacy Bohm; Tina Caraballo
Subject: HB 75 - Foreclosure Bill of Rights
Committee Members,
For those unable to attend this afternoon's conference call, I
am writing to summarize some of the concerns, purely from a construction
law standpoint (and without commenting on the obvious policy choices
proposed by this bill), voiced by members of the committee on the call
regarding HB 75 (attached). I am proposing we forward these concerns,
and any additional concerns noted in response to this email, to the full
CLC for discussion and possible action. The concerns expressed are as
follows:
1. With respect to subsection (4), it provides that, once a
defendant has invoked the protections of the act, "a plaintiff is not
entitled to a final judgment against that defendant until all of the
requirements of this section have been satisfied." Does that mean the
foreclosure process continues as against all other parties? If so, how?
2. Assuming the loan is "refinanced with a reduced
principal at the property's actual market value", what happens to the
liens of junior lienholders, including construction lienors pursuant to
Chapter 713? May they proceed with any counterclaims filed to foreclose
their respective liens? (Presumably, the answer is yes. But did the
bill's drafters consider this possibility?)
3. What is the effect of subsection 11(c)1. relative to
junior lienholders? Does the "forebearance lien" receive priority over
all other lienholders (save the renegotiated first mortgage) with
respect to "any proceeds of the resale, refinance, or transfer in excess
of the renegotiated loan balance"?
4. What is the effect of subsection 11(c)2. as to junior
lienholders? Does the right to foreclose the "forebearance lien" relate
back to the date of the original mortgage? To the date of the
refinance? As of what date does the "forebearance lien" take priority?
5. Construction lienors pursuant to Chapter 713, Florida
Statutes, who perform improvements on the homestead property after the
forebearance lien is recorded arguably are prejudiced by the provision
for a forebearance lien. In particular, if the original note and
mortgage are restructured down to fair market value, then the
forebearance lien is secured (at least initially) by no equity.
However, construction lienors will be prejudiced to the extent they
create new value in the property through their efforts, which new value
would benefit the holder of the forebearance lien first, since it is
prior in time to any construction lien filed. Arguably, a construction
lien filed under these circumstances should prime the forebearance lien
to the extent of any increase in resale value of the property.
If anyone has any additional thoughts, please respond
accordingly.
Thanks,
Reese
Reese J. Henderson, Jr.
Tritt|Henderson
707 Peninsular Place
Jacksonville, FL 32207
(904) 354-5200 (telephone)
(904) 354-5256 (facsimile)
reeseh at atritt.com
Board Certified in Construction Law by The Florida Bar
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