Interesting quote about Monday’s Supreme Court ruling on stripping second mortgages.
There[in state court], a lender holding a first mortgage can get a final judgment of foreclosure that clears the second mortgage off the property.”For borrowers who didn’t come into bankruptcy, 99 out of 100 times they are going to get the same result (in state court) — a second mortgage wiped away,” McEwen said.
Source: Tampa man at center of U.S. Supreme Court bankruptcy ruling | Tampa Bay Times
The Supreme Court ruled that second mortgages may not be voided if the property is worth less than the mortgage debt.
Source: Justices Curb Bankruptcy Filers’ Ability to Have Second Mortgages Canceled – NYTimes.com
The Supreme Court ruling will now prevent underwater homeowners from easily discharging home equity loans and other types of second mortgages in Chapter 7 bankruptcies.
The ruling covers a potentially large pool of people who might seek bankruptcy protection as a solution to their housing woes. In Florida alone, 23 percent of the state’s roughly 1.3 million underwater homes have multiple mortgages, according to an analysis in March by RealtyTrac. . . .
The Supreme Court ruling does not completely prevent homeowners from voiding their second mortgages. Bankruptcy lawyers say homeowners may still seek to strip off second mortgages by filing Chapter 13 bankruptcy cases. But that process, the lawyers said, can cost more and take many years to complete. By contrast, Chapter 7 is geared toward helping lower-income people and typically takes just months.
Interesting case this month from the First DCA, it arose in the context of a property tax exemption related to affordable housing. The legislature deleted this exemption during the legislative session and specified the exemption would be deleted retroactively. The question then was whether the exemption could constitutionally be deleted for the current 2013 tax year, or had the exemption vested on January 1, 2013, and was is a property right that could not be removed retroactively. The Court held it was a vested property right, but the opinion issued with a dissent.
In Ervin v. Florida DOR, the First DCA Denied fees Appellate Attorney fees. The Court held
Finally, we note that Appellant requested attorney’s fees within a paragraph contained in his amended initial brief. Attorney’s fees must be requested by filing a separate motion. See Fla. R. App. P. 9.400(b); see also McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692, 696 (Fla. 4th DCA 1999). Accordingly, Appellant’s request for attorney’s fees is denied.
Highlights the importance of a simple but proper request for fees.
Today, in a decision from the First DCA, a party that won at the trial level on the merits, lost out on about 1.5 million dollars in fees being awarded under the offer of judgement statute Florida Statutes 768.79 because of the failure in the offer to specify a nominal amount for resolution of a punitive damages award. The literal inclusion of an offer to settle for $5 would have resulted in a million dollar award of fees being upheld. First DCA offer of judgment opinion
Yesterday, the First District issued an opinion illustrating the importance of preserving issues for appeal in 1st DCA13-1698 opinion. In this case, a trial judge entered a completely wrong ruling on the merits in a case, and that ruling was never appealed, and a later order in the case awarded attorney fees against the plaintiff’s attorney based on that completely wrong ruling. The appeal of the award of attorney fees was filed, and the Court agreed the legal fees should not have been awarded, but held that the legal argument as to why they should not have been awarded was not preserved at the trial court, so the Appellate court could not grant relief.
The most embarrassing thing about this case is that the Appellee never even filed a brief in opposition to the appeal because the Appellee was a corporation, and tried to file a brief without hiring an attorney, which a corporation cannot do. Corporations cannot file prose. So the Appellant, who was an attorney, lost the case on appeal when arguments were not preserved below, even when no brief was filed in opposition to her appeal.
Potential clients often want to know what the likelihood of success on appeal is. Whether your appeal is successful depends on the unique characteristics of your case, but it is possible to get a general sense of how often appeals succeed. Across the board, between 10- 15 % of appeals are reversed. By way of example, looking at recent data on how appeals are resolved at the Florida 1st District Court Appeal, 11% of all filed appeals were reversed. Broken down:
- 25% of appeals in which oral argument was granted were reversed.
- 18% of civil cases were reversed.
- 8% of criminal cases were reversed.
- 10% of administrative cases were reversed
- 20% of workers’ compensation cases were reversed
- 33% of family cases were reversed
- 25% of probate cases were reversed
These percentages will vary some year to year, but if these if these percentages were applied to the number of appeals resolved in the 1st DCA in 2013:
- 143 civil cases were reversed
- 195 criminal cases were reversed
- 74 administrative cases were reveresed
- 52 workers’ compensation cases were reversed.
- 81 family cases were reversed
- 4 probate cases were reversed
While the First District Court of Appeal data was used for this analysis, this will generally apply to most Florida Appellate Courts