Van Ness Attorneys

SAVINGS CLAUSES IN FORECLOSURE

An overlooked topic in foreclosure law is the effect of savings clauses in loan documents. Notes, mortgages, modifications, and just about any other document affecting the validity or viability of a loan may have a savings clause. Review of loan document templates is necessary because savings clauses may be helpful, but also may not completely solve the issues they were meant to address.

Simply stated, a savings clause is a clause in a contract that provides that the contract will remain intact and enforceable to the extent allowable by law, even if certain portions of the contract are deemed invalid or unenforceable. These clauses can both be general and apply to the contract as a whole or specific and apply to key provisions or subject areas of the contract.

A general savings clause is frequently styled as a “severability” clause because the contract explains that the parties intend for the court to sever any portion of the contract that is legally invalid or unenforceable while maintaining the remainder of the agreement. These clauses are helpful to clarify issues that may be severed. See generally Gessa v. Manor Care of Fla., Inc., 86 So. 3d 484, at passim (Fla. 2011). However, courts may find certain portions of the clause ineffective. For instance, a limitations of remedies provision is not severable, regardless of whether the contract contains a severability clause. Id.at 490‐491 & n. 5. Thus, a severability clause may be an attractive addition to a loan document, but it must be understood that there are circumstances under which the provision will, itself, not be enforced.

In the case of mortgage promissory notes, a specific savings clause will usually be focused on interest and the calculation of payments. These clauses may clarify that interest shall not accrue or be charged at any unlawful rate. This type of savings clause can have multiple purposes. First, it can act to attempt to sever any provision that would allow for unlawful interest. Secondly, it can function as evidence of intent.

This second function is helpful in the face of a claim or defense that the loan at issue is usurious. Usury occurs when a loan is intentionally given with an interest rate that exceeds the maximum amount allowable by law. A usurious loan is subject to a setoff against recovery and, in some cases, cancellation of the debt or damages.

Florida law used to provide that a savings clause that expressed a desire for the loan to be nonusurious was sufficient to warrant dismissal of a charge of usury. However, that has changed. InLevine v. United Cos. Life Ins. Co., 638 So. 2d 183, 184 (Fla. 3d DCA 1994), the court examined a mortgage note that “expressly stated that interest was to be charged only at a lawful percentage.” The court held that the “inclusion of this language in loan documents has been held to warrant dismissal of a usury claim.” Id. (citing Forest Creek Dev. Co. v. Liberty Property Sav. & Loan Ass’n, 531 So. 2d 356, 357 (Fla. 5th DCA 1988)). The opinion in Levine, 638 So. 2d at 184 was later disapproved by the Florida Supreme Court to the extent that it explained, “a savings clause is one factor to be considered in the overall determination of whether the lender intended to exact a usurious interest rate.” Levine v. United Cos. Life Ins. Co., 659 So. 2d 265, 267 (Fla. 1995). (Internal quotations omitted.) In other words, the savings clause now presents an issue of fact that is to be weighed in making a determination whether a usurious loan was given.

Savings clauses should be used wisely. They may be helpful in a defensive posture once litigation ensues, both in terms of rescuing the enforceability of an agreement and in expressing the intent of the parties at the time of the agreement. However, it should not be taken as a given that either of these strategies will work in any particular case.

Van Ness Attorneys

VAN NESS DEFENDS NO FEES AT 2nd DCA

Van Ness Law Firm regularly prosecutes and defends appellate actions throughout the State of Florida. This portion of our practice includes representation in all five district courts of appeal and the Florida Supreme Court. We routinely appear in front of the courts for oral argument.

Van Ness Law Firm appeared at oral argument in front of the Second District Court of Appeal on March 13, 2019 in Deutsche Bank v. Hopson. The trial court had granted attorney’s fees in favor of the borrower following a judgment in favor of defendant at trial. The trial court found that there were no endorsements on the note and that the assignment of mortgage was not necessarily valid. Plaintiff filed a motion for rehearing on the fees issue due to the fact the trial court had previously found a lack of a relationship between the plaintiff and both the note and mortgage. The trial court agreed that fees should not have been awarded. Hopson appealed.

The borrower argued Madl, a case in which no valid transfer of the note occurred but a valid assignment of mortgage was made. The borrower also filed the Florida Supreme Court opinion inGlass prior to oral argument. Our firm argued that Madl goes against the literal language in the statute governing fees. Our firm also argued that the exception in Madl does not apply because there was no evidence of a valid transfer of the mortgage and such a transfer was required by the court in Madl. Further, our firm argued that Glass only applies in circumstances in which there is no determination on the merits that a party lacks a relationship to the relevant contracts.

The panel questioned the parties regarding matters outside the briefing. Judge Lucas was interested in questioning whether a mortgage is a contract. Judge Silberman wanted to know how a defendant in a case such as this could possibly get fees. And there was inquiry as to the meaning of the wording of the trial court’s order. On this latter inquiry, we made sure to remind the court that the trial court’s order was one that the borrower’s counsel had drafted, themselves.

An opinion will follow when the Court elects to issue one. Van Ness Law Firm will continue to advocate on behalf of its clients at each level of the Florida courts.

Van Ness Attorneys

Gov’t, Atty Square Off Over PACER Fees For Court Opinions

By Sam Reisman

Law360 (February 21, 2019, 7:20 PM EST) — A Florida attorney and the federal government on Wednesday clashed over fees for accessing certain documents through PACER, with the attorney arguing they amount to a breach of contract and the government saying while court opinions are usually free, it’s up to the judge to determine what constitutes an opinion.

In dueling briefs, Theodore D’Apuzzo, the Fort Lauderdale litigator who brought the action, and the government clashed over a central question of whether a contract or implied covenant was established between the government and users of the Public Access to Court Electronic Records, and what duties, if any, are owed to users with respect to access to opinions.

“Under the undisputed facts, a contract was formed between the government and plaintiff as to plaintiff’s PACER usage,” according to D’Apuzzo’s brief. “As such, the breach of implied covenant claim is on sound footing, and is in no way duplicative to or contrary to the express terms of the express or implied-in-fact contract.”

The government countered that no such valid contract exists between the government and people accessing court documents through PACER, and any supposed duties owed to PACER users under the alleged contract are without basis.

“While plaintiff alleges that the PACER registration process is an online agreement, it is not a valid contract because it is insufficiently definite,” the government argued.

Furthermore, while the E-Government Act of 2002 mandates that written opinions should be made available for free, the government argued that there is no clear uniform guidance as to what constitutes a written opinion and authoring judges have discretion determining what qualifies as an opinion.

Even if the court finds a valid contract exists between PACER and its users, the government argued, that does not mean the government would be required to undertake new duties, such as standardizing the process by which documents are labeled opinions.

“That opinions are provided without charge does not require the government to take unspecified ‘steps’ to ensure that ‘[Case Management/Electronic Case Files] websites’ use the ‘same methods’ for designating documents as opinions,” the government’s brief said.

D’Apuzzo initially filed his suit in November 2016, arguing individual judges and their staffs are responsible for designating documents as “judicial opinions,” resulting in inconsistencies and PACER users having to improperly pay for access.

He pointed to several documents that he said had wrongly racked up PACER charges, including a 29- page opinion granting a motion to dismiss from the bankruptcy court in the Eastern District of Michigan, a memorandum opinion and order from the District of Columbia, and opinions from the Southern District of Ohio and the Middle District of Florida. Each of the documents was referred to specifically as an “opinion” but was not made available for free, D’Apuzzo claims.
The parties filed cross-motions for summary judgment in December.

“We as the plaintiff feel good about our position and we can only hope the court will agree, as we believe the public does have a right to free access to federal court opinions and that this is an important right worthy [of] fighting for,” Douglas J. Giuliano, counsel for D’Apuzzo, wrote in an email on Thursday.

Counsel for the government did not immediately respond to a request for comment.

A separate class action lawsuit that could have profound implications for PACER fees in general is now before the United States Court of Appeals for the Federal Circuit.

In that action, originally filed in 2016, three nonprofit groups alleged that the judiciary overcharged PACER users and unlawfully used fees collected through the system for expenses other than maintaining the online documents portal.

A federal district judge partially agreed in March and found that some $198 million in PACER fees were misapplied to projects that did not enhance public access to court documents, in violation of the E-Government Act.

The nonprofit organizations have received the support of former U.S. Sen. Joseph Lieberman, who sponsored the E-Government Act, as well as seven retired federal judges and a host of media advocacy and legal organizations. In a Feb. 7 editorial titled “Public Records Belong to the Public,” The New York Times also championed their cause.

“The government’s practice of charging fees to access court documents that are greater than the costs of making those documents accessible is at odds with the text, history and purpose of the E-Government Act,” Lieberman wrote in an amicus brief.

D’Apuzzo is represented by Nicole W. Giuliano and Douglas J. Giuliano of Giuliano Law PA and John Anthony Van Ness and Morgan L. Weinstein of Van Ness Law Firm PLC.

The government is represented by Alicia H. Welch of the U.S. Department of Justice’s Civil Division. The case is Theodore D’Apuzzo PA et al. v. U.S., case number 0:16-cv-62769, in the U.S. District

Court for the Southern District of Florida.

–Additional reporting by Carolina Bolado, Dave Simpson, RJ Vogt and Emma Cueto. Editing by Michael Watanabe.

Van Ness Attorneys

GROSSO DEFINES GLASS FURTHER

It is becoming increasingly clear that the voluntary dismissal of a case in which a foreclosure plaintiff lacks standing does more harm than good. A defendant in such a case may claim an entitlement to prevailing party attorney’s fees. Though it may sound illogical, under such circumstances it may make more sense for a plaintiff to take the case to trial and force the borrower to prevail on their argument regarding standing, as a means to prevent the borrower from accessing attorney’s fees.

In Florida, the ability of a borrower to recover attorney’s fees following the dismissal of a foreclosure case is an evolving concept. Florida law permits a borrower to take advantage of attorney’s fees provisions in notes and mortgages: section 57.105(7), Florida Statutes. Section 57.105(7) provides the following:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988. 

Plaintiffs had argued that borrowers who claimed a foreclosure plaintiff lacked standing were incapable of access to this statute, because a plaintiff who lacks standing with respect to a note and mortgage is not a party to the note or mortgage. This argument gained traction, and courts began to explain that where there is no standing for a foreclosure plaintiff, there is no access to reciprocal fees for a borrower. 

However, in Glass v. Nationstar Mortg., LLC, 2019 Fla. App. LEXIS 30; 2019 WL 98152; Case No. SC17-1387 (Fla. 2019), the Florida Supreme Court concluded that a voluntary dismissal renders the borrower a prevailing party and, in the absence of a defined ruling stating that the plaintiff lacks standing, there has been no demonstration that the plaintiff is not a party to the note or mortgage. The Fourth District Court of Appeal has carried this logic into Grosso v. HSBC Bank USA, N.A., No. 4D17-2874 (Fla. 4th DCA Feb. 6, 2019). In Grosso, the court distinguishes between voluntary dismissals without prejudice and involuntary dismissals:

In this case, HSBC voluntarily dismissed its complaint, thus rendering the homeowner the prevailing party for purposes of attorney’s fees. Notably, the trial court never made a judicial determination that HSBC or the homeowner was not a party to the contract. Additionally, HSBC maintained in its complaint a right to enforce the contract.

If it had been demonstrated that plaintiff lacked standing, there would have been room to argue that the borrower was not entitled to the reciprocal fees provision contained in section 57.105. In other words, forcing the borrower to have their day in court and prove their defense could have resulted in a better outcome for the plaintiff.

Van Ness Attorneys

NEW TREND EMERGING IN FL FORECLOSURES

View this article on DS NEWS

 A new matter has come to our firm which is strikingly similar to another recent case we had. The borrowers are alleging fraud based on “new evidence” discovered after an expert reviewed the loan documents. In this case, an eight year old assignment from MERS was the allegedly fraudulent conveyance despite the fact judgment was entered three years earlier. They are attempting to vacate judgment and sanction all parties supported by an attorney expert affidavit(s). In the other case, a separate suit was filed by the borrowers for fraud based on allegedly forged loan documents (note, mortgage, etc.) after an expert review. This review was performed about four years after entry of judgment and they had lost their appeal. One would think the borrowers would have used that defense the first time around if they did not sign the loan documents. Our firm was successful in procuring dismissal of the latter claim, as well as sanctions against the borrowers by virtue of a 57.105 motion pursuant to the Florida Statutes. Both of these cases seem to be part of an emerging trend as the cases and attorneys are unrelated but the logic is unique. We have learned that other law firms have seen the same types of tactics recently with the use of post judgment expert review on cases already adjudicated.  

Any legal practice area with sufficient volume goes through litigation trends. In foreclosure, there have been trends with regard to standing and conditions precedent, amongst other pleading rules and requirements. As the defense bar attempts to take various, new positions in foreclosure cases, precedent gets developed once trial court cases move through the appellate process.  

This new trend is the attempted use of experts to overcome the doctrines of res judicata and estoppel by judgment. The process appears to be as follows: (1) the plaintiff files a complaint to enforce a note and foreclose a mortgage; (2) the borrower either does or does not defend the claim, but in any event does not endeavor to use expert testimony to claim that the note is inadmissible due to fraud; (3) the plaintiff proceeds to judgment in its favor; and (4) the borrower either moves to vacate the judgment or files an independent action for damages, premised on expert testimony that the note is in some way fraudulent. These actions by borrowers may be barred by either res judicata or estoppel by judgment. An action is barred by the doctrine of res judicata where there exists: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity for or against whom claim is made. Rhyne v. Miami-Dade Water & Sewer Auth., 402 So. 2d 54, 5 (Fla. 3d DCA 1981). An action is barred by estoppel by judgment under the following circumstances: 

Where the causes of action are different, the doctrine of estoppel by judgment comes into play, in which case the parties are precluded from relitigating matters actually litigated and determined, but only those matters, and not matters which were in fact not litigated in the former action, even though such matters might properly have been determined therein. Thus, before a litigant is barred under the doctrine of estoppel by judgment, it must appear that the points or questions involved in the subsequent action were determined in the prior action. 

Green v. State, 412 So. 2d 413, 414 (Fla. 3d DCA 1982). Courts enforce these bars to litigation because there is an interest to there being an end to litigation and an ultimate point of determination. In other words, it is a disservice to the law to allow the finality of judgments to be diminished. 

Borrowers attempting to use expert testimony to revive cases that have reached their final conclusion may be blocked by the doctrines of res judicata or estoppel by judgment. What’s more, the conduct of this attempted expert testimony may be sanctionable, pursuant to section 57.105, Florida Statutes. An aggressive approach to terminating this litigation may ebb the trend of borrowers’ counsel employing these particular experts in cases that have been concluded.


Van Ness Attorneys

FORECLOSURE FEES NOT AUTOMATIC IN GLASS

Glass v. Nationstar Mortg., LLC, 2019 Fla. App. LEXIS 30; 2019 WL 98152; Case No. SC17-1387 (Fla. 2019) discusses whether a borrower who successfully defends against a foreclosure case may claim entitlement to reciprocal attorney’s fees. The opinion in Glass does not necessarily prevent a plaintiff from arguing that the borrower is not entitled to fees. 

In Glass, The borrower sought review of a district court opinion, based on alleged express and direct conflict with another district court opinion, on the point of law that a voluntary dismissal provides a basis for being considered the prevailing party for the purpose of appellate attorney’s fees.

At the trial court level, the borrower had moved to dismiss the complaint on three separate, successful occasions based on the allegation that the complaint failed to demonstrate that the plaintiff was the proper holder of the note. Eventually, the trial court dismissed the complaint with prejudice. The borrower sought attorney’s fees pursuant to rule 1.525, Florida Rules of Civil Procedure, the mortgage, and section 57.150(7), Florida Statutes. Fees were granted.

The plaintiff appealed the final judgment, arguing that none of the arguments in the motions to dismiss had merit. The plaintiff subsequently filed a notice of voluntary dismissal of the appeal and the borrower filed a renewed motion for appellate attorney’s fees based on section 57.105(7) and the voluntary dismissal. The district court of appeal denied the motion for fees. The borrower sought review in the Florida Supreme Court. The Florida Supreme Court reasoned that the voluntary dismissal rendered the borrower the prevailing party on appeal.

However, for a number of reasons, Glass does not necessarily foreclose a plaintiff from arguing that a dismissal premised on a plaintiff’s lack of standing prevents a borrower from seeking attorney’s fees. First, notably, the plaintiff in Glass did not seek review of the attorney’s fees order in the district court. Secondly, the dismissal in Glass was based on any of four alleged bases raised in the motions to dismiss. The trial court dismissed the complaint without prejudice and also without providing its reason for the dismissal. Thirdly, the Court discusses Bank of New York Mellon Trust Co. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017), another case in which a borrower was prevented from obtaining fees where it successfully defended on the basis that there was no contract between the parties. Instead of overturning Fitzgerald, the Court distinguished it, reasoning that it was important that the Fitzgerald case had proceeded to non-jury trial at which specific findings were made as to standing.

J Anthony Van Ness re-elected to Advisory Council for the Legal League 100

With the 11th semi-annual Legal League 100 Servicer Summit underway at the historic Joule Hotel in Dallas, Texas, the professional association marked the occasion by announcing the results of its recent member elections. The League announced that Roy. A. Diaz, Shareholder, SHD Legal Group P.A., has been elected Chair of the LL100.

Diaz previously served on the Legal League 100’s Advisory Council. He will take over from departing Chair Neil Sherman, Managing Partner, Schneiderman & Sherman, who served as Legal League 100 Chair from May 2016. Sherman will continue serving as a member of the Advisory Council.

Diaz told DS News, “My focus for my tenure as Chair of the Legal League 100 will be on maintaining a clear vision of where the industry is, evolving industry requirements, industry opportunity for improvement, and bringing that vision to the membership.”

Roy A. Diaz has been a member of the Florida Bar since 1988. He has concentrated his practice in the areas of real estate, litigation, and bankruptcy. He has represented lenders, servicers of both conventional and GSE loans, private investors, and real estate developers throughout his career with an emphasis on the mortgage servicing industry for over 22 years. Diaz is admitted to Federal Court practice in the United States District Court for the Southern, Middle, and Northern Districts of Florida. He is also admitted in the United States Court of Appeals for the Eleventh Circuit. He is AV Rated by Martindale-Hubbell, which is the highest peer rating for Ethical Standards and Legal Ability.

The group also announced several changes to the group’s Advisory Council. The Council gained two new members: Stephen M. Hladik, Principal, Hladik, Onorato & Federman, LLP, and Chad Neel, Chief Executive Business Officer, McCarthy & Holthus LLP. J. Anthony Van Ness, President, Van Ness Law Firm, PLC, was also re-elected to another term on the Advisory Council.

Van Ness Attorneys announces multi-year MLL uniform sponsorship!

The Florida Launch of Major League Lacrosse today announced a multi-year partnership in which Van Ness Attorneys, based in Deerfield Beach, will receive a number of marketing assets, including the first uniform sponsorship in the team’s history, beginning in the 2017-18 season.

 

“We are very proud to have such a fast growing and respected firm like Van Ness Attorneys as our first ever uniform sponsor. We reviewed several different brands for this and we felt that Van Ness complimented the Florida Launch brand well, they are a local firm growing and looking to move to a national stage” said Michel Zeff, Vice President of Sales and Marketing for the Florida Launch.

 

Van Ness Attorneys previously sponsored the Launch during the 2016-2017 season. With a change in MLL policy allowing teams to have sponsored uniforms, the Firm moved to up its involvement to be the title uniform sponsor. “I took advantage of the opportunity to sponsor the Launch uniforms having already been a general sponsor last year,” said Tony Van Ness, founder of Van Ness Attorneys. “This sponsorship with the Launch will bring a strategic national exposure for our brand and we are very excited to be a part of the team in such a significant way.”

 

The Firm will also co-brand a weekly web series entitled “Coach’s Corner” that will feature in-depth interviews and behind-the-scenes content with Launch coach Tom Mariano.

 

About Van Ness Attorneys

Van Ness Attorneys also known as Van Ness Law Firm, PLC is a South Florida based law firm with its main office in Deerfield Beach with a second office in on Flagler Street in Miami. J. Anthony Van Ness founded the law firm in July 2004 in Hollywood, Florida. Van Ness Attorneys practices in the areas of Commercial Litigation, Personal Injury, Real Property, Contract Disputes, Appeals, Probate and other areas.  Although the primary office locations are in South Florida, the firm handles matters throughout the state of Florida to include the Panhandle of Florida. Van Ness clients include many major banks, loan servicers, corporations, non-profits and individual consumers.

About Florida Launch

The Florida Launch began play in 2014 as a Major League Lacrosse expansion team. The team is dedicated to growing the game of lacrosse in Florida, as well as showcasing the sport at its highest level to the fans and community. For more information, please visit www.floridalaunchlacrosse.com. To never miss a moment of the action, follow the Florida Launch on Facebook, Twitter, and Instagram

About Major League Lacrosse

Major League Lacrosse (MLL), the premier professional outdoor lacrosse league, was founded by Jake Steinfeld and is headquartered in Boston. MLL has continued to lead the sport of lacrosse into the mainstream of competitive team sports over the past 17 years. The league is made up of nine teams: The Atlanta Blaze, Boston Cannons, Charlotte Hounds, Chesapeake Bayhawks, Denver Outlaws, Florida Launch, New York Lizards, Ohio Machine and Rochester Rattlers.

Van Ness Attorneys joins Ocean Brews and Blues Festival

DEERFIELD BEACH – The City of Deerfield Beach Parks and Recreation Department is excited to announce Van Ness Attorneys.com, also known as Van Ness Law Firm, PLC, as the presenting sponsor of the City’s new annual Ocean Brews & Blues Festival, to be held on May 20, 2017 from 3 – 7 PM at the Main Beach Parking Lot.

Based in Deerfield Beach with an office in Miami, Van Ness Attorneys.com (hereafter “Van Ness”) is a South Florida firm founded in July 2004 by J. Anthony Van Ness in Hollywood, Florida. Van Ness has its roots representing mortgage banks and servicers having been retained as counsel for Fannie Mae in 2010, until the program ended. In 2007, Van Ness moved to Newport Center in Deerfield Beach and in 2016 opened its Miami. The law firm’s attorneys have been successful representing clients in matters of Personal Injury, Real Estate, Commercial Litigation, Probate and Contract Disputes. For more information about the firm, please visit: www.vannessattorneys.com.

As one of the Top 10 up and coming cities in South Florida, we value the support of the community and sponsors to help our events continue to grow year after year. The Ocean Brews & Blues Festival is a great opportunity to spend a day at the beach while enjoying an exciting craft brew festival and listening to a variety of blues musicians.

Early Bird tickets are available for $35/person, pricing expires April 8th at 11:59pm EST. Ticket prices will increase to $40/person April 9th until May 19th at 11:59pm EST. Event Day tickets will be $45. All tickets include 3.5 hours of unlimited sampling of 100+ beers and a souvenir glass from 3:00pm – 6:30pm. Purchase your craft beer festival tickets today at www.dfb.city/oceanbrew.

For more information, call the Community Events and Outreach Division at 954-480-4429 or visit www.dfb.city/oceanbrew.