Van Ness Attorneys

NEW TREND EMERGING IN FL FORECLOSURES

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 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.

Consumer Financial Protection Bureau found structurally unconstitutional

The U.S. Court of Appeals for the District of Columbia has found unconstitutional the structure of the Consumer Financial Protection Bureau (“CFPB”), the Bureau proposed by Elizabeth Warren to ward against abuses by financial institutions. The ruling challenges the construct that a congressionally-established independent agency may be headed by a single director who may only be removed for cause.

Initially, the court states, the CFPB was to be “another traditional, multi-member independent agency.” However, as the court concludes, the CFPB was ultimately established as “an independent agency headed not by a multi-member commission but rather by a single Director.” It is the latter part of this statement, “… by a single Director,” that the court finds problematic, within the framework of an independent agency. The court holds that the single-director structure, in the context of a congressionally-created independent agency, departs from history and threatens individual liberty, for reasons bound up in agency control and the separation of powers. The court also takes issue with the limitation on the executive’s ability to remove the head of that agency. The court’s remedy is to have the CFPB operate as an executive agency, of which the President “now has the power to supervise and direct the Director of the CFPB.” The court also holds that a three-year statute of limitations was applicable to the enforcement action in dispute.

Judge Henderson, concurring in part and dissenting in part, states that the opinion unnecessarily reaches the question of the constitutionality of the CFPB. Given that there were other reasons to reverse the award in the enforcement action, she opines, the court should have not decided “a constitutional question,” because “there is some other ground upon which to dispose of the case,” citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009); Rostker v. Goldberg, 453 U.S. 57, 64 (1981). This position will likely come up, should this case be subject to further appeal.

 

Hurricane Matthew and Avulsion

Hurricanes can affect property rights, particularly along the coastline. If property is changed suddenly, Florida law treats rights of coastal, upland land owners differently with regard to the addition or subtraction of property. The difference comes down to timing and terminology.

A “gradual and imperceptible” change may trigger possessory interests. While there is a right to possess lands that may come from gradual change, that right is “a contingent, future interest that only becomes a possessory interest if and when land is added to the upland by accretion or reliction.” Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008).

“Accretion” and “reliction” are bound up with “erosion.” Erosion is “the gradual and imperceptible wearing away of land from the shore or bank.” Id. Accretion is “the gradual and imperceptible accumulation of land along the shore or bank of a body of water.” Id. Reliction is “an increase of the land by a gradual and imperceptible withdrawal of any body of water.” Id.

In contrast, “avulsion” is “the sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream.” In other words, the key is whether the loss or gain is “gradual and imperceptible,” versus “sudden or perceptible.”

With regard to either an accretion or an avulsion, the deposit of land that is added to the shore or bank is called an “alluvion.” Id.

Under the doctrines of erosion, reliction, and accretion, “the boundary between public and private land is altered to reflect gradual and imperceptible losses or additions to the shoreline.” Id. However, “under the doctrine of avulsion, the boundary between public and private land remains the” mean high water line “as it existed before the avulsive event led to sudden and perceptible losses or additions to the shoreline.” Id.

Hurricanes are “generally considered avulsive events that cause avulsion.” Id. Therefore, alluvion created by hurricanes would not typically alter the boundary line between public and private lands, for the purpose of access to the water, etc.

First District Clarifies Jurisdictional Limits for Declaratory Relief

In Helfrich v. City of Jacksonville, 1D15-1095 (Fla. 1st DCA Oct. 4, 2016) the court withdrew its initial opinion and substituted an opinion which discusses the types of issues that are ripe for a party to seek declaratory relief. Appellant, a former employee of the City of Jacksonville, sought an interpretation of the term “contributions” in the City of Jacksonville’s General Employees Retirements Plan. Having left the employ of the city, the employee was faced with two choices: (1) elect to vest her for deferred retirement and leave her own contributions in the fund; or (2) elect to rescind her vested rights and received a refund of her accumulated contributions. The employee had yet to make a choice between the two options.

The city had also made payments to the fund during the time of Appellant’s employment. If “contributions” included those contributions made by the City of Jacksonville, then it might have been advantageous for the employee to rescind and receive those contributions. The employee sued for declaratory relief, seeking a declaration that “contributions” included those payments made by the city.

The trial court noted, and the appellate court agreed, that it did not have jurisdiction to issue a ruling, because the employee had yet to elect to vest or rescind. In order for a court to have jurisdiction to issue a declaration, it needs to be dealing with a “present, ascertainable state of facts or present controversy as to a state of facts.” The court held that, prior to the employee’s election of either of her two options, there was no “present” controversy, but instead a hypothetical, potential, future controversy.

Court Clarifies Standards on Testimony

In Ocwen Loan Servicing, LLC v. Gundersen, 2016 Fla. App. LEXIS 14533 (Fla. 4th DCA Sept. 28, 2016), Florida’s Fourth District Court of Appeal clarified the standards by which an employee of a business entity may testify regarding that company’s business records. The law in Florida provides that “hearsay,” which is an out of court statement offered for the truth of the matter asserted, is not admissible at trial, unless it meets the qualifications of a particular exception to the rule against the admission of hearsay. An entity’s “business records” qualify as evidence which is admissible, regardless of whether they are hearsay. However, there is a question as to who may testify about such records, particularly where the records were first created by a different business entity.

Where one business acquires another business’s records and integrates them within its own records, the records are treated as being “made” by the acquiring business. If the acquiring business’s witness can testify that it had procedures in place to check the accuracy of the information received, and if the testifying witness is well enough acquainted with the process, then the records should be admissible.

In Gundersen, the witness demonstrated “sufficient familiarity” with the process. The witness testified that, if the accuracy of the records could not be verified, then the records would not be entered into the acquiring business’s records-keeping system. Although the trial court ruled that the witness was incapable of testifying to the business records, the Fourth District Court of Appeal reversed, claiming that the trial court abused its discretion in excluding the records.

The Gundersen court is not the first appellate court to reach this conclusion. However, the noteworthiness of the presence of the records in a records-keeping system bolsters the ability of a witness to testify as to its company’s records. Additionally, the court seems to indicate that the test of a witness being well enough acquainted with a particular process or category of record should be fairly simple to pass.