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Property Owners Rejoice: Major Estoppel Win Against Associations

June 15, 2017

A three-year legal battle came to an end on April 28th, when HB483, estoppel reform legislation, cleared its final legislative hurdle. An estoppel certificate or letter is required on each real estate closing involving a homeowner’s or condominium association and is intended to provide a full breakdown of expected and delinquent dues or assessments, special assessments, late fees, and violations.estoppel letter

As of yesterday, June 14, 2017, when Governor Rick Scott signed this into law, property owners with homeowners or condominium associations now can rest easy with mandatory caps on estoppel costs. In the past, associations were charging hundreds of dollars for estoppels which hiked up loan amounts, closing costs, and frustrations with everyone involved in the closing. In addition, title companies, realtors, brokers, closing agents, and mortgage brokers can now provide more accurate quotes to their customers.

The law goes into effect on July 1st and requires estoppel certificates to be provided within 10 days of the initial request and be valid for a minimum of 30 days. For owners who are current on their dues, the estoppel fee cap is $250. For owners who are delinquent on their dues, an additional fee of $150 can be charged. For rush estoppels, the fee cap is $100 for rush deliveries within 3 days.

For an example Estoppel Certification, please see Sapphire Title & Escrow’s Guidelines

SECOND DISTRICT COURT OF APPEALS RULES ON HOA ISSUE

By Jennifer Lima-Smith, Esquire

Partner, Gilbert Garcia Group, P.A.

The Second District Court of Appeals issued a decision on September 2, 2016 in the case of Ballantrae Homeowners Association v. Federal National Mortgage Association (2D15-1025 and 2D15-1026). The case involves a consolidated appeal from final summary judgments entered by the trial court in favor of Federal National Mortgage Association otherwise known as “Fannie Mae.” The District Court of Appeal reversed the trial court’s decision granting summary judgment in favor of Fannie Mae.picture3

 

The background facts indicate there are two properties governed by the Associations Declaration of Covenants, Conditions and Restrictions. Each property was encumbered by a recorded first mortgage and also by the homeowner’s association lien for unpaid assessments. The borrowers on both properties defaulted on their mortgages. The servicers of the loans initiated foreclosure proceedings. Neither foreclosure case included the HOA as a party to the action as a defendant. Final judgments were entered in favor of Fannie Mae and were sold to Fannie Mae. Subsequently, an estoppel of the assessments due was sought by Fannie Mae. The amounts due to the association was challenged. Fannie Mae requested a declaratory and injunctive relief on the amounts due and stated their responsibility was limited to the assessments accrued after it acquired title to the properties. The trial court examined the Declarations and concluded Fannie Mae was only liable for the unpaid assessments after it acquired title and the HOA was ordered to provide an estoppel letter reflecting the reduction.

The appellate court distinguished other appellate case decisions and examined the language of the Declarations. The appellate court determined the Declaration’s subordination verbiage contained provisions to subordinating the assessment lien to the 1st mortgage but it did not contain wording specifically limiting or eliminating the subsequent owner’s liability for unpaid assessments. The reviewing court examined the law and found that it is well established under common law, the foreclosure of a senior mortgage extinguishes that of a junior mortgage listed in the final judgment. However, it is also well established that where a junior lienholder is not made a party to the foreclosure brought by the senior mortgage holder, “the lien of the junior mortgagee is unaffected by the judgment.” Abdoney v. York, 903 So.2d 981, 983 (Fla. 2d DCA 2005); See also, Willoughby Estates v. Bankunited, No. 2014AP000015, 2015 WL 5472506 at *2 (Fla. 15th Cir. Ct. June 23, 2015). At foreclosure therefore, the association’s lien rights were not adjudicated and the assessments liens remained intact. The appellate court concluded, the sale was held and the junior lienholders had no opportunity to bid or stir up others to benefit from a surplus.

The court stated the only remedies available to Fannie Mae are to move to compel redemption or filing a new action to re-foreclose. The association can defend itself in the same manner as if the foreclosure never happened. The court also stated that Fannie Mae’s actions for declaratory and injunctive relief are not recognized methods for removing the lien of an omitted junior lienor.

It is always a good idea to consult with your foreclosure and real estate counsel if there are any questions.

 

The Financial Crimes Enforcement Network – FinCen GTO

Miami Dade 2

 

This past January 2016, The Financial Crimes Enforcement Network (“FinCEN”), which is a division of the U.S. Department of Treasury, issued a Geographic Targeting Order (“GTO) which will impact sales of residential property throughout Florida’s Southeast. The January GTO applies to the sale of residential property located in Miami-Dade County for $1,000,000 or more, closing on or after March 1, 2016, through August 27, 2016, where the buyer is a legal entity and the purchase is made without a bank loan. This GTO was extended on July 22, 2016 to include Palm Beach and Broward counties, and also includes transaction when a personal or business check is used for any portion of the purchase price. The July 22, 2016 GTO commences with closings on or after August 28, 2016 through February 23, 2017.

All offices and agents of various title insurance underwriters are now required to collect and report information respecting certain real property purchases which meet all of the following parameters: (1) Sale of residential property located in Miami-Dade, Palm Beach or Broward County; (2) Sale completed on or after August 28, 2016, through February 23, 2017; (3) Sales price of $1,000,000 or more; (4) The buyer is a legal entity, such as a limited liability company, corporation, partnership, or similar business entity but not a trust; (5) Purchase is made without a bank loan or other similar form of external financing (financing by a financial institution that is required to have an anti-money laundering policy); and (6) Purchase price is paid, in whole or in part, with cash, cashier check, certified check, travelers check, money order in any form, personal or business check. This does not include a sale where the purchase price is paid entirely by wire transfer.

It’s important to note that title insurance commitments for a transaction which falls under the GTO must contain specific language found in Schedule B-1 of the GTO. Furthermore, these transactions must be reported to FinCEN by filing a FinCEN Form 8300 within 30 days after closing and a representative of the buying entity must complete, and have notarized, a Supporting FinCEN GTO Affidavit. Carefully following the requirements of the January and July GTOs will ensure your organization completes all Southeast Florida closings without incident.

 

By Chris Pavlidis, Esquire

Gilbert Garcia Group, P.A.

 

 

Experienced Title Processor and Specialist – 2 Positions Available (Tampa, FL)

We are seeking both an experienced Title Processor and a Title Specialist to work in our Tampa office.

Processor candidates would be self-motivated and able to foster excellent relationships with Realtors, Mortgage Brokers, Homeowners as well as, the rest of our team. Attention to detail and knowledge of the closing process is a must. Candidates should be able to prepare HUD statements, prepare policies and work files from start to finish. RamQuest experience is helpful but not require.

Title specialist candidates would also be self motivated with a good understanding of clearing title. The candidate would work for our first legal department, as well as our title company as needed.

These are both excellent opportunities with unlimited growth potential.

In exchange, we offer competitive salaries, paid time off, paid holidays, subsidized health insurance, vision/dental and a 401K plan.

Minimum of 2 years’ experience required. Bilingual (Spanish) is a plus and all candidates must be able to pass a criminal background check. EOE.

Please submit your resumes and salary requirements to mgilbert@sapphiretitleescrow.com for immediate consideration. Indicate your last name and which position you are applying for in the subject line of your response please.