OUR ATTORNEYS:

Barry Silver, Esq.

Boca Raton

(561) 483-6900 

Barbara Billiot Stage, Esq.
Orlando, FL
(321) 293-4215


Eric M. Glazer, Esq.

Glazer &Associates P.A.

Hollywood, FL

(954) 983-1112 

Q & A

Question: What happens after an association forecloses on a home with a very large mortgage lien (larger than current appraisal by more than $100,000) and the bank is not able to find the paperwork? 

 B.G., Boynton Beach , FL


Answer: The association steps into the shoes of the homeowner and takes title subject to the mortgages.  If the association doesn’t pay the mortgage, the bank forecloses on the association. If the bank cannot find the paperwork, the bank cannot foreclose.  As of February 2010, the Florida Supreme Court ruled banks must file a verified foreclosure complaint, which means that the bank must properly plead in the complaint and verify that the bank is a party in interest, with capacity and standing to sue.  Most mortgages are held in a securitized trust, pursuant to the guidelines of the Pooling and Servicing Agreement (“PSA”) approved by the Securities and Exchange Commission. The SEC requires the trust to comply with all state laws in which the mortgages will be offered.  This means that the trust must register with the State of Florida Division of Corporations, much like a foreign corporation would be required to register.  The trusts do not have standing to sue if they are not registered. More importantly, the bank foreclosing may not be a party in interest.  The PSA is very detailed and outlines which banks (usually at least five) hold the note and mortgage, for how long, what they are required to do with it, and when they must pass it to the next bank.  The PSA also has a cut-off date and no mortgages can be assigned to the pool after the cut-off date.  Most foreclosure mills assign the mortgage to the pool right before filing the foreclosure action, which is invalid.  This is important because this is a step that has not been properly followed and cannot be corrected after the cut-off date.

Barbara Billiot Stage, Esq.  

Question: May associations "withhold" documents through a process of "hide and seek"? Our HOA is interpreting FS 720.303 (5) INSPECTION AND COPYING OF RECORDS to mean that the only obligation the HOA has to comply with a request for a specific document would be “to allow access to the official records." Our HOA does not feel any obligation to tell you where to look, to tell you if the document is even in the files, or to answer any questions you might ask regarding your request. In essence, the HOA is refusing any assistance; therefore, you are looking for the proverbial "needle in the haystack"! Is there any document that one can present to support the assertion that when one asks for a "specific" document, then the HOA must comply by providing it? G.P., Titusville , FL


Answer: A law can be violated if one does not act within the spirit of the law. The spirit of the law, which requires a board to provide access to records, is in my opinion violated, if the board does not provide meaningful access by telling a homeowner if the board has a document which has been requested by a homeowner, and if so, where the document can be found. If the board does not know, this is different.  But if it is something that the board is aware of, or could easily find out, then it seems to me that the board should be obligated to help the homeowner to find the document.  Barry Silver, Esq.


Disclaimer: The content of this column can not be considered legal advice.

This column is not a substitute for consultation with legal counsel.