Category Archives: In the Courts

Video of Oral Arguments in City of Palm Bay v. Wells Fargo is Up!

On Wednesday, the Florida Supreme Court heard oral arguments in City of Palm Bay v. Wells Fargo. Read our earlier posts about it here and here. If you weren’t able to watch the live streaming feed, you can view the footage here or by going to this link.

Go ahead…you know you want to watch it!


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Filed under Code Violations, In the Courts, Lien Laws

Priority of City Code Liens Case To Be Heard By Florida Supreme Court Tomorrow

Several weeks ago, I wrote about the appeal presented to the Florida Supreme Court- City of Palm Bay v. Wells Fargo. This case tackles the question of whether liens assessed by municipalities can have “super-priority” over prior recorded mortgages.

Oral arguments are scheduled for tomorrow, Wednesday, April 11, 2012 at approx. 10:40 am, and should be broadcast live over the internet. If you’re interested in watching, log on to Gavel to Gavel.

Supreme Court of Florida

Supreme Court of Florida (Photo credit: Wikipedia)

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Filed under Code Violations, In the Courts, Lien Laws

Prison Time for a Junky Yard: Too Severe?

This week a Brevard County man was sent to state prison for a sentence of 1 year and 1 day for failing to remove and clear out what authorities call a junkyard, but what Robert Biel calls home. Biel apparently has been in violation of county codes for decades for storing his “tools of the trade” in his yard. The County, no doubt frustrated that its measures over the years to get the property cleaned up have failed, charged Biel with illegal dumping which landed him in the county lock-up for a few weeks. Português: Uma cela moderna em Brecksville Pol...He was released on probation which was conditioned on cleaning his yard. He didn’t, and thereby violated his probation…and now sits Biel in prison. Check out the story here: man-gets-prison-time-for-junky-yard

What do you think: Is state prison too harsh of a punishment for displaying your mess to the public? What if that mess was in your neighborhood?

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Filed under Code Violations, In the Courts

Proposed Bill Tries to Accelerate Foreclosure Cases

Florida courts are still backlogged with foreclosure cases. They have been for the past couple of years now. In a new attempt to speed foreclosures through the judicial system, the House of Representatives introduced HB 213. Of particular note for lien holders of the subject property, the bill would provide a mechanism to accelerate the foreclosure process. If passed, it would read:

702.10 Order to show cause; entry of final judgment of foreclosure; payment during foreclosure.
(1) Any lienholder may request an order to show cause for the entry of final judgment in a foreclosure action. For purposes of this section, the term “lienholder” includes the plaintiff and any defendant to the action who holds a lien encumbering the property or any defendant who, by virtue of its status as a condominium association, cooperative association, or homeowners’ association, may file a lien against the real property subject to foreclosure. Upon filing, the court shall immediately review the request and the court file in chambers and without a hearing. If, upon examination of the court file the court finds that the complaint  is verified, complies with s. 702.12, and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.

According to the bill’s definition, “lienholders” include condo and homeowners’ associations (they have lien rights for assessments and fees due on properties part of the associations) and municipalities (they have lien rights for unpaid utilities, assessments, improvements, etc.). Click here to read about the source of their lien power.

HB 213 would allow lienors to ask the foreclosure judge for an Order to Show Cause, which if granted would essentially force the parties to explain why the the court should not enter a final judgment of foreclosure disposing of the case immediately.

Not only will the parties be able to move the case forward via an Order to Show Cause motion, but they will also be able to 1) move to default co-defendants who never responded to the complaint and 2) request a case management conference where a timetable of dates would be entered to keep the case on track.

I’ve personally experienced cases where foreclosing plaintiff-banks did absolutely nothing to move their cases forward, leaving my former clients, like HOAs, in limbo with unpaid assessments growing by the day. It would have been empowering to take charge of those cases and force them to a disposition. If HB213 passes, that can be done.

Stay tuned for more info on HB213 and what it means for new owners of abandoned properties.

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Filed under Associations, Foreclosures, In the Courts, Legislation

Florida Supreme Court considers whether cities’ liens are superior to prior recorded mortgages.

Most Florida cities have ordinances that give them powers to assess liens on property for utility balances, code violations, etc. Often included in these ordinances is language giving the liens superiority over other liens, titles or claims against the property and giving the cities foreclosure power. English: Florida Supreme Court Building

The problem with these ordinances is that they may (or may not) directly conflict with Florida’s Recording Act (695.11 F.S.). The Recording Act determines the “priority” of interest in real property based on notice of competing interests. City ordinances that give their liens super-priority (regardless of notice) ignore 695.11. At least that is what is being argued by respondent, Wells Fargo, and the Florida Land Title Assn (FLTA) in its amicus brief before the Florida Supreme Court in Wells Fargo Bank, N.A. v. City of Palm Bay.

The certified question for the state’s highest court to answer is:

Whether, under Article VIII, Section 2(b), Florida Constitution, section 166.021, Florida Statutes and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages?

The Court will hear oral argument at 9:00 a.m., Wednesday, April 11, 2012. Read City of Palm Bay’s brief here. Read Wells Fargo’s brief here. Read FLTA’s Amicus brief here.


Filed under In the Courts, Lien Laws