I wanted to share our latest victory against a mortgagee/bank with you. In our estoppel letter we demanded the full amount because there was no assignment from the original lender to the Plaintiff in the foreclosure sale. They paid the full amount but under protest. They then filed a Motion to Limit Liability pursuant to 718.116(1)(b) Fla. Stat. against the association and scheduled the Motion for hearing. I had several communications with their counsel who shared a case with me in which he was the appellate counsel and where he prevailed. I also had several communications with the bank’s in house counsel but I stood firm on our position.
I then investigated their case and found all the discrepancies and filed a 57.105 Motion against them listing all the problems. The bank's attorney cancelled their hearing and transferred the case to another law firm who then rescheduled their Motion. However, they asked to review the 57.105 Motion I filed. The result is, they advised me yesterday that they have withdrawn their Motion and cancelled the hearing.
Had we given in to them, the association would have been limited to receiving $3,051.33 for assessments and would have had to pay attorney's fees that would not have been covered by the bank’s payment. Instead, the association will receive $10,912.56 for assessments and the attorney's fees are covered.
A motion made pursuant to Florida Statute Section 57.105 is often referred to as a "frivolous claim motion". A court must find that a claim was frivolous and that the attorney was not acting in good faith in filing it. The 2nd DCA has already held that a bank filing a foreclosure action against a property for which it never received an assignment of the promissory note is not acting in good faith by filing that foreclosure.
Successful collection outcomes today require good lawyering, tenacity and, at times, old fashioned good luck.