Foreclosure-Related Bills Filed
CLC Members,
We have been asked by the RPPTL Section leadership to provide comments
on the attached proposed legislation, if we have any. Please let me
have your comments no later than next Thursday, October 13, so that I
can incorporate them into a consolidated response.
Thanks,
Reese
Reese J. Henderson, Jr.
Board Certified Construction Attorney
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@tritthenderson.com
www.tritthenderson.com
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients . If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise . Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
Reese,
One potential problem with HB 65 is that it does not differentiate between mortgage foreclosures and other lien foreclosures. It appears that this is intended for mortgage foreclosures. That could be addressed by adding the word "mortgage" several places in the bill where it describes foreclosure and deficiency. Otherwise it can be confused with having some application to other lien foreclosures, particularly if it is placed in chapter 702 by legislative bill drafting if passed.
HB 149 has some confusing terminology with respect to being a user who can access postings and being someone who is a user by posting notices. This should be made clear so that anyone who wishes to access the site to review postings is not required to register to do so. Clearly in order to pay for it people should be obliged to register or pay a fee to post. It does not appear to be intended that persons who want to check the site for postings be obliged to pay a fee and register, nor would that be appropriate.
Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL 33323
Phone: 954-514-0984
Fax: 954-514-0985
e-mail: leiby@mkpalaw.com
Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, October 07, 2011 10:45 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed
CLC Members,
We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any. Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response.
Thanks,
Reese
Reese J. Henderson, Jr.
Board Certified Construction Attorney
[cid:image001.jpg@01CC84E3.5D2D3C30]
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@tritthenderson.com mailto:%5Be-mail%5D
www.tritthenderson.comhttp://www.tritthenderson.com/
[cid:image002.jpg@01CC84E3.5D2D3C30]
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
HB 145 should really be applicable to both banks and firms given that banks are generally the ones who re-take "possession" of property. I doubt law firms are actually themselves taking possession or hiring agents to do so. Further, while it may arguably be appropriate for a bank to take possession of an abandoned property in very special circumstances before judicial approval, it should not just be after 30 days of abandonment. What does abandonment mean? Must notice be given? What proof of abandonment must exist?
Current common law indicates that even upon entry of a foreclosure judgment, ownership of the property remains vested in the property owner until the certificate of title is issued. For consistency purposes lenders should not be permitted to take possession pre-judgment without judicial approval (i.e. due process) except in the most unusual circumstances.
When lenders take possession on these residential foreclosures, many drill out existing locks, break gate access and set new lock mechanisms, and even build large wooden cages over pools or other features. These actions damage and diminish the value of the property owned by the property owner. They also interfere with existing contracts for sale and brokerage efforts because access has been changed. Further, many of our clients have had personal property stolen from their homes by those anonymous bank or law firm representatives or agents who enter without notice.
I really do not believe it appropriate for a lender or law firm to access a property without court permission or written approval from the owner. Requiring court permission would not increase the burden on the lender or the court, as courts already routinely handle such requests. The court process would at least ensure due process, which is noticeably absent from the abandonment language in this house bill.
At an absolute minimum, the bill should be clarified to define abandonment precisely for fairness, and indicate that the abandonment language is intended not to create new rights for banks or law firms, but rather, to clarify that re-taking possession of abandoned property is not a violation of FDUTPA; it may very well be a violation of other laws or contracts.
Justin R. Zinzow | Zinzow Law
[cid:image002.jpg@01CC84E9.BB960800]Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684
Ph: (727) 787-3121
Fax: (727) 787-3231
Websitehttp://www.zinzowlaw.com/ | Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/
[cid:image003.jpg@01CC84E9.BB960800]
[cid:image004.gif@01CC84E9.BB960800]
NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, October 07, 2011 10:45 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed
CLC Members,
We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any. Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response.
Thanks,
Reese
Reese J. Henderson, Jr.
Board Certified Construction Attorney
[cid:image005.jpg@01CC84E9.BB960800]
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@tritthenderson.com mailto:%5Be-mail%5D
www.tritthenderson.comhttp://www.tritthenderson.com/
[cid:image006.jpg@01CC84E9.BB960800]
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
CLC members
The CLC should oppose or not take a position on all of these bills as they do not relate to construction.
Barry Kalmanson
-----Original Message-----
From: Reese J. Henderson, Jr. Reese.Henderson@tritthenderson.com
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Sent: Fri, Oct 7, 2011 11:01 am
Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed
CLC Members,
We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any. Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response.
Thanks,
Reese
Reese J. Henderson, Jr.
Board Certified Construction Attorney
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@tritthenderson.com
www.tritthenderson.com
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
onstructionlaw mailing list
onstructionlaw@lists.flabarrpptl.org
ttp://mailman.fsr.com/mailman/listinfo/constructionlaw
This is not construction law and should be opposed by the CLC.
BARRY KALMANSON
-----Original Message-----
From: Justin Zinzow JZinzow@zinzowlaw.com
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Sent: Fri, Oct 7, 2011 12:24 pm
Subject: Re: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed
HB 145 should really be applicable to both banks and firms given that banks are generally the ones who re-take “possession” of property. I doubt law firms are actually themselves taking possession or hiring agents to do so. Further, while it may arguably be appropriate for a bank to take possession of an abandoned property in very special circumstances before judicial approval, it should not just be after 30 days of abandonment. What does abandonment mean? Must notice be given? What proof of abandonment must exist?
Current common law indicates that even upon entry of a foreclosure judgment, ownership of the property remains vested in the property owner until the certificate of title is issued. For consistency purposes lenders should not be permitted to take possession pre-judgment without judicial approval (i.e. due process) except in the most unusual circumstances.
When lenders take possession on these residential foreclosures, many drill out existing locks, break gate access and set new lock mechanisms, and even build large wooden cages over pools or other features. These actions damage and diminish the value of the property owned by the property owner. They also interfere with existing contracts for sale and brokerage efforts because access has been changed. Further, many of our clients have had personal property stolen from their homes by those anonymous bank or law firm representatives or agents who enter without notice.
I really do not believe it appropriate for a lender or law firm to access a property without court permission or written approval from the owner. Requiring court permission would not increase the burden on the lender or the court, as courts already routinely handle such requests. The court process would at least ensure due process, which is noticeably absent from the abandonment language in this house bill.
At an absolute minimum, the bill should be clarified to define abandonment precisely for fairness, and indicate that the abandonment language is intended not to create new rights for banks or law firms, but rather, to clarify that re-taking possession of abandoned property is not a violation of FDUTPA; it may very well be a violation of other laws or contracts.
Justin R. Zinzow | Zinzow Law
Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684
Ph: (727) 787-3121
Fax: (727) 787-3231
Website | Bio
NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, October 07, 2011 10:45 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed
CLC Members,
We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any. Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response.
Thanks,
Reese
Reese J. Henderson, Jr.
Board Certified Construction Attorney
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson@tritthenderson.com
www.tritthenderson.com
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise. Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA") (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
onstructionlaw mailing list
onstructionlaw@lists.flabarrpptl.org
ttp://mailman.fsr.com/mailman/listinfo/constructionlaw
