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Ruling good for community associations

By September 13, 2014 No Comments

A major victory for community associations was recently recorded in Florida’s Fifth District Court of Appeals in Orlando. LM Funding took on Bank of America and won the suit which will result in associations throughout Florida winning large financial settlements. Aaron Gordon, corporate legal counsel for LM Funding, authored this article in the Orlando Sentinel on what this means for community associations.

With a recent ruling by Florida’s Fifth District Court of Appeals, Florida’s community associations scored a victory, which will provide them with financial relief during the fragile real-estate recovery.

It marks a turning point in community associations’ ongoing battle against foreclosing lien holders who continually seek protection — as first mortgagees — from the safe-harbor guidelines. In the event of a foreclosure, by the first-mortgage holder, associations are entitled to a minimal payment of delinquent assessments of just 12 months or 1 percent of the mortgage amount, whichever is less, according to  Safe Harbor guidelines.

The safe-harbor rule has been abused by mortgagees in Florida. In the muddled court system, financial institutions have been wrongly claiming first-mortgagee status, thereby preventing associations from collecting more than the minimum due. Imagine a scenario in which a mortgagee assigned away the rights to the mortgage, and then demanded that the association recognize it as a first mortgagee and demanded a safe-harbor payoff letter.

That’s what happened in Bermuda Dunes Private Residences vs. Bank of America. With a systematic process, Bank of America sold the loan to another mortgagee. Then after foreclosure, it claimed first-mortgagee status, when its new role had been solely to service the loan.

In a stern ruling, the court stated: “It is necessarily the entity having rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor assignee, that is the key factor.” Tampa-based Business Law Group, a firm specializing in condominium law, made compelling arguments that will provide millions of dollars to associations throughout Florida.

This ruling has laid a clear path for community associations in Florida to attack confusing chains of mortgage ownership. Now, associations won’t have to settle for the minimal safe-harbor payoffs because the onus of proving first-mortgagee status is now on the financial institution. It will allow aggressive associations to collect the full amount of delinquent assessments.

Years ago, legislators inserted safe-harbor language into our state’s statutes because they wanted to incentivize lenders to make loans, resulting in more homeowners. Financial institutions pushed this law to its limit and beyond. The judiciary has had enough of these abuses and, with this ruling, has taken the first of many steps necessary to rein in the legacy problems of Florida’s housing crisis.

Aaron L. Gordon is corporate general counsel for LM Funding based in Tampa.

This article originally appeared in the Orlando Sentinel on August 28, 2014