Sua Sponte Dismissal of a Foreclosure Action Is Inappropriate Where Willfulness Is Not Shown and Discovery Is Outstanding
In Anson St., LLC v. Rosado, 4D12-253 (Fla. 4th DCA, Nov. 21, 2012), Anson Street, LLC (“Plaintiff”) sought review of the trial court’s order dismissing the mortgage foreclosure action against Franklin Rosado and Maricruz Ayala (“Defendants”). In March 2010, Plaintiff filed a complaint to foreclose its mortgage on the Defendants’ property. The Defendants then filed […]
Unenforceable Loan Modification Agreement
In Vargas v. Deutsche Bank Nat. Trust Co., 3D11-554 (Fla. 3d DCA, Nov. 28, 2012), Rogelio Vargas (“Defendant”) appealed an order approving a general magistrate’s report and recommendations which denied his “Motion to Enforce Loan Modification Agreement Enter Into in Open Court.” Deutsche Bank National Trust Company (“bank”) received a final judgment for foreclosure against […]
U.S. Foreign Corrupt Practices Act – Resource Guide released by the SEC and the DOJ
The Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission have released “A Resource Guide to the U.S. Foreign Corrupt Practices Act”, consisting of 130 pages (“Resource Guide”). The Resource Guide outlines the anti-bribery and accounting provisions of the Foreign Corrupt Practices Act (FCPA), providing […]
Forum Selection Clause Enforced over Objection that Insertion of Clause was “Cutting and Pasting” Error
In Espresso Disposition Corp. 1 and Rowland Coffee Roasters, Inc. v. Santana Sales & Marketing Group, Inc., No. 3D12-1147 (Fla. 3d DCA, November 14, 2012), Espresso Disposition Corporation 1 (“appellant”) sought review of the trial court’s order denying motions to dismiss a third amended complaint on grounds that the subject agreement contained a mandatory forum […]
Summary Judgment Improper Where Based Upon Unauthenticated Evidence
In Berkowitz v. Delaire Country Club, Inc., 4D11-3858, 2012 WL 5232251 (Fla. 4th DCA 2012), Stuart Berkowitz (“Berkowitz”), a member of the Delaire Country Club, Inc. (the “Club”), proposed 17 amendments to the Club’s articles of incorporation in a 52-page packet. The Club asked that Berkowitz submit only a single page addressing each proposed amendment […]
The Importance of Contract Language
The language used in a contract is what governs the relationship between the contracting parties. In a lawsuit, the court looks within the four corners of the contract to determine the rights and obligations of each party. Outside evidence can be used in limited circumstances, such as to explain particular terms of the contract. The […]
Broker’s Entitlement to Commission
Real estate brokers are employed by property sellers to assist in finding a purchaser or producing a sale. The terms of the broker’s employment may be outlined in a listing agreement. The listing agreement indicates what a broker must do in order to receive a commission. Once the broker either finds a purchaser or produces […]
Alternative Dispute Resolution: Arbitration
With the rising popularity of alternative dispute resolution, more contractual agreements are including mandatory arbitration clauses. In response, courts have put arbitration clauses under the microscope, making the drafting and review of arbitration clauses and the contracts that contain them even more significant. A good example of the of where the court has given an […]
Wrongful Foreclosure or Breach of Contract: The Importance of Proper Pleading
Wrongful Foreclosure or Breach of Contract: The Importance of Proper Pleading It is necessary to allege sufficient facts so a court can determine if a claimant has a viable claim. Failure to allege sufficient facts opens the claim up to possible dismissal. Foxx v. Ocwen Loan Servicing, LLC, 8:11-CV-1766-T-17EAK, 2012 WL 2048252 (M.D. Fla. 2012). […]
Contract Rescission: “As-Is” Clauses and Misrepresentation
While there are some similarities between the buying and selling of residential real estate and the buying and selling of commercial real estate, the duty to disclose in residential real estate transactions does not similarly apply to commercial property sellers. When a residential seller makes a material misrepresentation and the buyer relies on that misrepresentation, […]
