Kelley Kronenberg - In the Know – Real Estate - Q3 2023

IN THE NOW

IN THIS ISSUE:

• ‘Together with the note”: Four Simple Words that May Make or Break Your Lost Note Case

• State-Specific Clauses in Lender Docs Unenforceable in Illinois Courts

• Entitlement to Attorney’s Fees—Only Half the Battle

• Use Of Prior Declaratory Judgments To Establish Standing In Foreclosure Cases

• Be Reasonable! Liquidated Damages in Foreclosure Judgments

• Illinois Mortgage Foreclosure Law Simplifies Notice Requirements

• Oh Where, Oh Where Has My Guarantor Gone? – Pursuing Guarantor Liability In Foreclosure Actions

WELCOME EDITOR’S LETTER

Jason M. Vanslette Editor, and Business Unit Leader/Partner

Real estate movement across the nation (if not internationally) has been going through unprecedented lows due to a myriad of political and economic factors. From rising interest rates, “locked-in” rates by homeowners during the Pandemic and an overall tightening of lending standards, real estate transactions have essentially halted dramatically. This has led to unnerving changes in the mortgage industry landscape such as mass layoffs (particularly with mortgage originators) and an exodus of full-time real estate agents and title companies from the profession.

Due to the unwavering high interest rates, housing inventory remains relatively low (with no buyers

or sellers) keeping prices housing valuations high. This, in turn, has led to a historically low default rates which also adds to the inventory issues. However, it is during these challenging times that committed professionals in the industry find opportunity and growth by providing services that align with their economic environment. Our Real Estate group this year has accepted the ongoing environmental challenges and expanded our department jurisdictionally by capitalizing on opportunities when they arose.

I’m proud of our “new beginnings” and look forward to the challenges ahead.

Every new beginning comes from some other beginning’s end.

–Seneca (Roman Philosopher)

By: Bryan Jones, Attorney

KK TAKEAWAY:

An unbroken chain of assignments of mortgage, all of which expressly transfer the note, is sufficient alone to establish standing to foreclose a lost promissory note.

BACKGROUND:

A recent decision by Florida’s Second District Court of Appeals underscores the potential significance of including note transfer language in assignments of mortgage where the original promissory note has been lost or destroyed. Specifically, in the case of Wilmington Savings Fund Society v. Charm-B, Inc., the Second District Court of Appeals held that an unbroken chain of assignments of mortgage, all of which also specifically assigned the note, was sufficient to demonstrate the plaintiff’s standing to foreclose the lost promissory note and mortgage without any further evidence. 1

Section 673.3091, Florida Statutes, lays out the standard under Florida law for establishing entitlement to enforce a lost promissory note. Under that statute, a plaintiff must demonstrate

“Together with the note”: Four Simple Words that May Make or Break Your Lost Note Case

that either: (a) plaintiff was the person who was entitled to enforce the promissory note when loss of possession occurred or; (b) the plaintiff directly or indirectly acquired ownership of the promissory note from a person who was entitled to enforce the promissory note when loss of possession occurred. 2 3

In some cases, this may be relatively simple to establish. Take, for example, a situation where the same plaintiff filed the original, blank-endorsed promissory note in the court file for a previous foreclosure action, and the original note was lost prior to the plaintiff retrieving the note to initiate the subsequent action. 4 In such a circumstance, the plaintiff’s status as holder of the note when loss of possession occurred may be relatively simple to establish.

However, in other circumstances, particularly where the original note was lost years earlier while in the custody of a prior servicer or lender, this can create a rather difficult evidentiary burden. While the law does not technically require a foreclosure plaintiff to demonstrate precisely when the note was lost, how it was lost, or who lost it, 5 the elements of the statute are often impossible to prove without such knowledge. After all, the statute requires the plaintiff to establish that someone—either the plaintiff itself or a third party from whom the plaintiff later directly or indirectly acquired ownership of the note—was entitled to enforce the note at the time it was lost. 6 And establishing one’s entitlement to enforce a promissory note prior to loss of possession necessarily requires proof that it previously maintained possession of the note. 7 Therefore, the plaintiff may be unable to meet its evidentiary burden without establishing what person or entity was last in possession of the original note prior to the loss or destruction of

that note. Unfortunately, proving such a fact often requires business records created and maintained by prior servicers, lenders, custodians, and/or law firms that are no longer affiliated with the loan and potentially no longer in business. Such records may be very difficult, or in rare situations even impossible, to obtain. Furthermore, establishing acquisition of ownership, where necessary, could potentially require the production of sensitive documents containing proprietary information.

The Wilmington decision highlights a separate avenue for establishing the right to enforce a lost promissory note where the assignments of mortgage contain verbiage specifically indicating that the note is also being transferred. It is wellestablished under Florida law that an assignment of mortgage alone, without an express assignment of the note, cannot confer standing in a foreclosure action. 8 This is because, while the mortgage follows the note, the inverse is not true. 9 However, as outlined in Wilmington, where there is a complete chain of mortgage assignments from the originator to the current plaintiff, and where each such assignment expressly indicates transfer of the accompanying note, no other evidence of entitlement to enforce is needed. 10 Noting that there was a complete and unbroken chain of note assignments, “[t]he evidence, therefore, established exactly who had the authority to enforce the note at any given moment, from the note’s execution to the filing of the foreclosure suit to the trial ....” 11 While the holding in Wilmington could be applied to both lost note cases and note possession cases alike, its utility is generally more valuable to lost note cases, where standing is often much more difficult to establish.

It should be noted that many, if not most assignments of mortgage between institutional

lenders do not contain note transfer language, thus eliminating a potentially key avenue for establishing standing, particularly in lost note cases. While there may be many considerations governing lender practices in executing and receiving assignments of mortgage, it is prudent to consider the value of including note transfer language in the assignments. Generally, this is as simple as including the words “together with the note” in the assignment. In some cases, it just might mean the difference between prevailing at trial or suffering a dismissal.

1 Published at 363 So. 3d 1119 (Fla. 2d DCA 2023).

2 Section 673.3091 also indicates that the loss of possession must not have been the result of a transfer or lawful seizure and that the plaintiff “cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.” Finally, the plaintiff must establish the terms of the terms of the instrument, and the plaintiff must indemnify the borrower from any claim by another person to enforce the note.

3 “The term ‘person entitled to enforce’ an instrument means: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).” Fla. Stat. §673.3011 (2023).

4 See Wells Fargo Bank, N.A. v. Bricourt, 290 So.3d 501 (Fla. 4th DCA 2020) (holding that the plaintiff established entitlement to enforce the lost note by showing that the note was deposited into the court file in a prior court action and was subsequently lost in the process of retrieving it back from the clerk of court).

5 See Boumerate v. HSBC Bank USA, N.A., 172 So.3d 535 (Fla. 5th DCA 2015) (“The Boumarates interpret this to mean that the Bank must prove exactly when, how, and by whom the note was lost. But the statute requires no such proof.”).

6 Fla. Stat. §673.3091(1) (2023).

7 “Holder” is defined under Florida law as: “(a) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; (b) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (c) The person in control of a negotiable electronic document of title.” Fla. Stat. §671.201(22) (2023).

8 Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“[A]n assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note.”).

9 Id. See also Peters v. Bank of New York Mellon, 227 So. 3d 175, 179 (Fla. 2d DCA 2017) (holding that the plaintiff failed to prove standing to foreclose because one of the four assignments of mortgage in the assignment chain did not expressly assign the note).

10 Wilmington, 363 So. 3d at 1122.

11 Id.

State-Specific Clauses in Lender Docs Unenforceable in Illinois Courts

By: R. Elliott Halsey, Partner

KK TAKEAWAY:

Lenders should be aware that ownershiptransfer clauses and forum-selection clauses in loan documents are unenforceable when challenged in Illinois, and that the Illinois Mortgage Foreclosure Law is the means to foreclose property located in Illinois.

BACKGROUND:

In Harris v. DHM Industries LLC, 2023 IL App (1st) 211202-U (Jan. 13, 2023) the defendant Lender financed the plaintiff Borrower’s rehabilitation project of an Illinois property.

The loan required the Borrower to transfer ownership of the property to a Borrowercontrolled LLC. A default was declared once the project exceeded a 60-day completion period requirement. The Lender brought suit in Utah and became the owner of the property through a forced a sale of the Borrower’s interest in the LLC.

However, the Borrower filed suit in Illinois alleging the delay was due to the Lender’s mismanagement of the loan and that the loan transaction violated public policy by containing a route that circumvented the Illinois Mortgage

Foreclosure Law (“IMFL”) as the vehicle for taking possession.

The Lender successfully moved to dismiss the Cook County case by contending that the Borrower’s suit was barred, because the issue of ownership was decided already by a Utah court, based on the forum selection clause in the loan documents.

The Appellate Court ruled that the Illinois suit could proceed, because Borrower’s allegation that the entire transaction was illegal rendered the forum selection and property transfer clauses unenforceable under Utah law. Issues remained for the Illinois trial court, as to whether the forum selection clause applied to the mortgage and was the result of an arm’s length negotiation.

Entitlement to Attorney’s Fees— Only Half the Battle

BACKGROUND:

By: Jason M. Vanslette, Editor and Business Unit Leader/Partner

KK TAKEAWAY:

Obtaining an award of “entitlement” to attorney’s fees is only one step in the legal decision to defend same—ensuring you have competent evidence and witnesses to prove the “reasonableness” of those fees turned out to be fatal for a prominent foreclosure defense attorney.

In Florida, under Florida Statute 57.105(7), “entitlement” to attorney’s fees is generally awarded for a prevailing party to a lawsuit when a contract or agreement allows for either party of the contract an award of fees for enforcing same. A promissory note and/or mortgage executed between a lender and borrower (for example) certainly qualify as a “contract” in this context and often results with contentious litigation when one party prevails over the other in a foreclosure action.

However, “entitlement” to attorney’s fees is only one part of the attorney’s fee issue. Assuming one party is entitled to attorney’s fees (usually through a Court Order awarding same), the prevailing party must also show that their accumulated fees are reasonable. However, “reasonableness” must be “… supported by ‘a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert

as to the value of those services.’ ’’Mitchell v. Flatt, 344 So. 3d 588, 592 (Fla. 2d DCA 2022) (quoting Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981)); see also Pridgen v. Agoado, 901 So. 2d 961, 962 (Fla. 2d DCA 2005) (reversing fee award where the record was “devoid of any expert testimony or even the testimony of the attorney who performed the services”). (emphasis added)

Recently, in Wells Fargo, N.A. v. Meininger, 360 So.3d 464 (Fla. 3rd DCA 2023), the Third District Court of Appeal reviewed an award of attorney’s fees from a trial court that granted an amount of $17,000.00 in attorney’s fees to a Bankruptcy Trustee representing the Stopa Law Firm, P.A., for services performed by a notorious (and now disbarred) Florida foreclosure defense attorney named Mark Stopa.

After obtaining an award for entitlement, the Bankruptcy Trustee appeared at the evidentiary hearing to determine the “reasonableness” of those fees with an expert witness they hired, but did not have any fee affidavits, records or attorney testimony to substantiate the time to be reviewed by the expert.

Notwithstanding, and over the objection by Wells’ counsel, the Trustee was able to judicially notice a prior fee affidavit executed by Marc Stopa (prior to his disbarment) in the underlying foreclosure case which only stated the billable rate and the amount of hours worked, thus totaling $17,000.00.

However, after review, the Appellate Court ultimately reversed the fee award for lacking substantial competent evidence and lack of attorney testimony. The Court pointed out, “The Trustee’s fee expert had to reconstruct the time for three Stopa attorneys who worked on the case based upon the docket filings because the Trustee was unable to locate Stopa’s billings or

time records. None of the three Stopa attorneys testified at the hearing. Because of the inability to review the file, the fee expert could not discern which attorneys attended hearings or prepared the filings. Nor was the fee expert able to review the retainer agreement between Stopa and the client. In fact, the fee expert did not know whether Stopa had charged the client a flat or an hourly fee.” Id. at 465.

In their Reply Brief, the Trustee attempted to provide case law that would suggest similar facts in their favor, citing Glades, Inc. v. Glades Country Club Apartments Ass’n, 534 So. 2d 723, 723 (Fla. 2d DCA 1988) which held that the “…number of hours reasonably expended by an attorney need not necessarily include specific, written time records.” However, as the Appellate Court was not persuaded recognizing that in Glades, “… the attorney performing the services testified to his hours expended and an expert testified as to reasonableness. Id. at 724. (emphasis added) Notably, neither Mark Stopa, or anyone from his (now dissolved) firm, testified at the underlying hearing other than the fee expert.

The Third District Court of Appeal ultimately ruled that “…in the complete absence of any competent evidence as to the services performed by Stopa, it was error to award attorneys’ fees to the Trustee based solely upon the fee expert’s testimony recreating Stopa’s records.” Id. at 466. Thus, obtaining an award of attorney’s fees is only one part of the battle (i.e., “entitlement”)—ensuring you can “competently” prove they are reasonable through proper evidentiary testimony is just as crucial. Having competent counsel that is fully prepared on both prongs of the “reasonableness” standards is crucial to ensuring a successful outcome in foreclosure attorney fees disputes.

Use Of Prior Declaratory Judgments To Establish Standing In Foreclosure Cases

Warren v. HMC Assets, LLC, 2023 WL 4479421, No. 2D22-14, 2D22-463, 48 Fla. L. Weekly D1376 (Fla. 2d DCA 2023).

BACKGROUND:

By: Irina Danilyan, Partner

KK TAKEAWAY:

Under certain circumstances, the trial court in a foreclosure action may consider a declaratory judgment from a prior lawsuit between two creditors establishing an assignment of note and mortgage. Therefore, foreclosure plaintiffs’ counsel should carefully examine prior litigation for evidence supporting plaintiff’s standing during preparation of foreclosure complaints.

A recent case decided by Florida Second District Court of Appeal (“Second District” or “District Court”), Warren v. HMC Assets, LLC, offers an interesting twist on establishing standing in a foreclosure case. In Warren, the foreclosing bank successfully relied on a declaratory judgment, establishing an assignment of the note and mortgage, entered in a lawsuit between the creditors.

The borrowers in the underlying case executed a note and mortgage to purchase real property. By virtue of a chain of three assignments, the note and mortgage were purportedly assigned to the third and final assignee, Sequoia Financial Solutions, Inc. (“Sequoia”). Sequoia then filed a foreclosure lawsuit against the borrowers. Based on plaintiff’s failure to establish the second assignment in the chain (from CitiMortgage to Granite), the federal court ruled that Sequoia lacked standing to sue. Without joining the borrowers, Sequoia then sued the two prior assignees in Florida state court, seeking a declaratory judgment that it owned the note. The declaratory action resulted in the court’s entry of a Consent Declaratory Judgment (“Declaratory Judgment”) determining that Sequoia owned and held the note and mortgage.

Sequoia assigned the note and mortgage to Kirkland Financial LLC.(“Kirkland”). Kirkland filed a foreclosure action against the borrowers based on their failure to make mortgage payments. Copies of the assignments and the Declaratory Judgment were attached to the complaint. As a result of a subsequent assignment of the instruments, HMC Assets, LLC (“HMC”) became the party plaintiff.

DISCUSSION:

Notably, following the recent, 2021 amendment to the Florida summary judgment standard, foreclosure plaintiffs have increasingly resorted to motions for summary judgment instead of non-jury trials in seeking final judgments of foreclosure, even in heavily contested cases. Here, in support of its summary judgment motion, HMC filed certified copies of the Declaratory

Judgment, mortgage, assignments and prior creditor’s business records, to show standing. The borrowers attacked the Declaratory Judgment, as well as CitiMortgage’s business records. Relevant to the specific issue discussed herein, the borrowers argued that the trial court could not rely on the Declaratory Judgment. Noting that the transfer of assignments was an issue between the creditors, the trial court found that the borrowers lacked standing to contest the prior declaratory action and entered summary judgment for HMC. The appeal ensured.

The Second DCA rejected the borrowers’ argument that the trial court’s reliance on the Declaratory Judgment was an impermissible use of collateral estoppel. Citing well-established Florida decisional law, the District Court noted that the doctrine of collateral estoppel barred litigation of an issue between the same parties that was already litigated in a prior proceeding and determined by a valid judgment. As nonparties to any of the prior assignments, however, the borrowers were not necessary parties to the

declaratory action and were properly not joined in the case that did not concern their interests.

Finding no support for the application of the collateral estoppel doctrine on the facts before it, the District Court noted there was no ruling by the trial court that collateral estoppel barred either party from litigating the issues of note ownership or standing in this case. Rather, the court below considered the Declaratory Judgment, which established the prior creditor’s standing to enforce the note and mortgage, in finding there was no genuine dispute as to HMC’s standing. Simply put, the trial court did not err in relying on a prior judgment (to which the borrowers were not parties) in concluding that plaintiff’s predecessor in interest owned and held the instruments prior to assignment, and said judgment was admissible evidence of plaintiff’s standing.

The Second District Court of Appeal ruled that borrowers failed to show any clear error in the trial court’s consideration of the Consent Declaratory Judgment in finding plaintiff had standing to sue.

Be Reasonable! Liquidated Damages in Foreclosure Judgments

MacDonnell v. U.S. Bank N.A. as Tr. for Truman

2013 SC4 Title Tr.

293 So. 3d 585, 588 (Fla. 2d DCA 2020)

filing the complaint, as such fees constitute liquidated damages. If attorneys’ fees sought in such a circumstance are over that 3% threshold, it is advisable to have an expert fee affidavit prepared to rely on at final hearing to help ensure all attorneys’ fees incurred are recoverable.

BACKGROUND:

By: Marc A. Marra, Partner

KK TAKEAWAY:

Pursuant to section Fla. Stat. §702.065(2), in a mortgage foreclosure proceeding when a default judgment has been entered and the note or mortgage provide for an award of reasonable attorney’s fees, it is not necessary for the court to hold a hearing or adjudge the attorney’s fees to be reasonable if the fees do not exceed 3% of the principal amount owed at the time of

In MacDonnell, a default foreclosure judgment was entered for the foreclosing mortgagee and foreclosure sale occurred. The mortgagors’ objection to the sale was overruled, and their appeal of that denied objection was also unsuccessful. The mortgagors then filed a motion to set aside the foreclosure judgment as void, which was denied by the circuit court, and resulted in the mortgagors’ appeal to the Second District Court of Appeal of Florida.

The mortgagors acknowledged on appeal that the amount of principal and interest sought by the mortgagee (specifically plead in the complaint) was liquidated. Citing Asian Imports, Inc. v. Pepe, 633 So. 2d 551 (Fla. 1st DCA 1994). However, the

mortgagors contended that all other amounts awarded in the final judgment (including items such as taxes, insurance, and attorneys’ fees) were unliquidated. The Second DCA held, inter alia, that the mortgagee’s claimed attorney fees constituted liquidated damages.

Generally, “damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded.” MacDonnell, 293 So. 3d at 590. However, the Court in MacDonnell properly noted that an exception exists for the attorney’s fees awarded in the default foreclosure judgment per Fla. Stat. §702.065, which serves to liquidate the amount sought in certain circumstances.

Fla. Stat. §702.065(2) provides:

(2) In a mortgage foreclosure proceeding, when a default judgment has been entered against the mortgagor and the note or mortgage provides for the award of reasonable attorney’s fees, it is not necessary for the court to hold a hearing or adjudge the requested attorney’s fees to be reasonable if the fees do not exceed 3 percent of the principal amount owed at the time of filing the complaint, even if the note or mortgage does not specify the percentage of the original amount that would be paid as liquidated damages. Such fees constitute liquidated damages in any proceeding to enforce the note or mortgage. This section does not preclude a challenge to the reasonableness of the attorney’s fees.

As the attorneys’ fees awarded in the MacDonnell foreclosure judgment were below three percent of the principal amount owed at the time of the filing of the complaint, Fla. Stat. §702.065(2) served to liquidate the damages for attorney’s fees. MacDonnell, 293 So. 3d at 590-91.

Illinois Mortgage Foreclosure Law Simplifies Notice Requirements

By: Travis P. Barry, Attorney

KK TAKEAWAY:

Plaintiffs are now able to provide constructive notice solely by recording a Notice of Foreclosure in the county in which the subject property is located.

BACKGROUND:

On June 9, 2023, Governor Pritzker signed Illinois Senate Bill 201 into law, which eliminated numerous burdensome notice requirements by completely repealing 735 ILCS 5/15-1503(b).

As a result, Plaintiffs are no longer required to mail copies of the Notice of Foreclosure to municipalities, counties, county boards, clerks, mayors, trustees, village presidents, or town clerks, as the scenario may have demanded. Additionally, in the case of a foreclosure filed against a property located within a city with a population of more than 2,000,000 residents (Chicago), within 10 days of complaint filing, notice needed to be sent to the Alderperson of the ward in which the property was located and an affidavit attesting to the fact that the notice was sent needed to be filed with the court.

Failure to provide this required notice had serious consequences. Upon motion by a party or the court, the foreclosure action would be stayed until the Plaintiff could provide proof of delivery by certified mail or private courier – a costlier and more time-consuming burden than using firstclass mail.

Now, in order to be in compliance, Plaintiffs simply need to follow 735 ILCS 5/15-1503(a), which provides that notice of foreclosure, whether the foreclosure is initiated by complaint or counterclaim, made in accordance with this Section and recorded in the county in which the mortgaged real estate is located shall be constructive notice of the pendency of the foreclosure to every person claiming an interest in or lien on the mortgaged real estate, whose interest or lien has not been recorded prior to the recording of such notice of foreclosure. Such notice of foreclosure must be executed by any party or any party’s attorney and shall include:

(i) the names of all plaintiffs and the case number, (ii) the court in which the action was brought, (iii) the names of title holders of record, (iv) a legal description of the real estate sufficient to identify it with reasonable certainty, (v) a common address or description of the location of the real estate and (vi) identification of the mortgage sought to be foreclosed.

In summary, the recent amendment to the Illinois Mortgage Foreclosure Law streamlines notice requirements by eliminating the need to send numerous copies to various government officials. These changes save Plaintiffs time and expense, while also reducing the risk of court-imposed delays.

Oh Where, Oh Where Has My Guarantor Gone? –Pursuing Guarantor Liability In Foreclosure Actions

Dyck-O’Neal, Inc. v. Trevor Meikle

215 So.3d 604 (4th Cir.

2017)

By: Jordan E. Shealy, Attorney

KK TAKEAWAY:

Foreclosure plaintiffs still have recourse against guarantors who were served via publication in the original foreclosure action. As long as the guarantor to the loan is served personally with the complaint for breach of guaranty, the ability to get a judgment against the guarantor is not lost.

BACKGROUND:

When a property is sold at foreclosure sale for less than the amount owed in the final judgment the result is the dreaded deficiency judgment. This was the result of the foreclosure sale in DyckO’Neal, Inc. v. Trevor Meikle. Dyck-O’Neal, Inc. (“DONI”), assignee of the foreclosure judgment, did what many plaintiffs in this situation would do: it sued the mortgagor to recover a deficiency judgment. One complication loomed over the action for deficiency – the mortgagor was served via publication in the foreclosure action.

Service by publication is permissible when a plaintiff is proceeding on a mortgage foreclosure

count. However, to sue a mortgagor for a deficiency, the mortgagor must be served personally. DONI was able to track Meickle - the mortgagor - down to serve him personally with the complaint alleging deficiency. Meickle then filed, and was granted, summary judgment alleging that DONI was barred from pursuing a deficiency judgment against him because he was served via publication in the foreclosure action.

The District Court of Appeals promptly reversed, citing to NCNB National v. Pyramid Corporation 497 So.2d 1353 (4th Cir. 1986) stating clearly, “… the fact that Meikle was served by publication in the foreclosure action did not prevent the court from acquiring personal jurisdiction via personal

service over Meikle in DONI’s deficiency action.”

The trial court’s ruling was reversed and DONI’s action for deficiency was allowed to proceed.

What does this have to do with guarantors on commercial loans? Pursuing a deficiency judgment against a borrower on a mortgage is no different than pursuing a breach of guaranty claim against a guarantor to a loan. A guarantor must also be served personally for a plaintiff to obtain a judgment against them for the breach. A plaintiff can continue to pursue a claim for breach of guaranty after a foreclosure action has concluded – even if that same foreclosure action concluded after the guarantor was served by publication.

CONTRIBUTORS

Jason M. Vanslette Editor and Business Unit Leader/Partner

Email Jason M. Vanslette

Jason Vanslette is an “AV” rated Partner and Business Unit Leader focusing his practice on Mortgage Foreclosure Litigation and assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters. Jason is rated AV Preeminent by Martindale-Hubbell, which indicates a demonstration of the highest professional and ethical standards and is the highest rating a lawyer can receive.

Jason began his legal career as an Assistant Public Defender for the Office of the Public Defender – 9th Judicial Circuit in Orlando, FL. During that time, he provided criminal defense representation to more than 200 clients

simultaneously and served as Lead Chair on more than 15 jury trials.

Prior to joining the firm, Jason worked as an Attorney for a firm in Fort Lauderdale, FL, where he provided legal representation to major financial institutions and mortgage servicers in various counties throughout the state, while focusing on non-jury trials and contested litigation.

Jason earned a Bachelor of Arts degree from Florida State University. He went on to earn a Juris Doctorate degree from Nova Southeastern University, Shepard Broad Law Center where he earned a spot on the Dean’s List for three consecutive years and received the Pro Bono Honors Award. While attending law school, he served as an executive board member for Law Student Advisor, Chief Executive and Host of WLAW Radio and member of the Nova Trial Association.

Irina Danilyan Partner

Email Irina Danilyan

Irina Danilyan is an Attorney at Kelley Kronenberg where she assists in handling matters related to Real Estate Litigation.

Irina previously focused her practice on mortgage foreclosure litigation and assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters. Irina has extensive experience handling contested

and uncontested foreclosure litigation. She handled pre-judgment and post-judgment foreclosure matters, including protection of creditors’ rights in condominium termination, probate, and criminal forfeiture matters.

Irina earned her Bachelor of Science degree in Management, cum laude, from Long Island University. She then went on to earn her Juris Doctor degree from Nova Southeastern University College of Law. During law school, Irina received a CALI Book Award in recognition of achieving the highest score in her Legal Research & Writing course and served as a Professor’s Research Assistant. Irina is fluent in Russian.

R. Elliott Halsey Partner

Email R. Elliott Halsey

Elliott Halsey is an Attorney at Kelley Kronenberg focusing his practice on mortgage foreclosure litigation and assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters.

Elliott has 18 years of legal experience in Bankruptcy, Real Estate, Foreclosure, and General Civil Practice

in Chicago and collar counties. Prior to joining the firm, he was an Attorney at a Chicago firm where he handled matters in Foreclosures, Bankruptcy, Real Estate closings, Landlord-Tenant, Collections, Small Claims, and Arbitration. Throughout his extensive career, he has experience handling matters related to lien litigation, property tax litigation, evictions, family law, commercial property and Intellectual Property.

Elliott earned his Bachelor of Arts from Wittenberg University and a Master of Science from Miami of Ohio University. He then went to earn his Juris Doctor the Ohio Northern College of Law.

Marc A. Marra Partner

Email Marc A. Marra

Marc Marra is a Partner at Kelley Kronenberg focusing on the Firm’s Real Estate Practice. With over ten years of experience, his practice focuses on assisting banks, lenders, mortgagees, and financial service providers with enforcing their rights in security instruments on real property. He protects, enforces, and litigates his clients’ rights in security instruments on real estate. He

also represents Condominium Associations and HOAs throughout South Florida as general counsel.

Marc is the founder of Heart Warriors, Inc., a non-profit corporation which supports children with Hypoplastic Left Heart Syndrome (HLHS) and other congenital heart diseases, and their families. This cause is very close to him as his daughter, Charlotte, has HLHS, and has undergone multiple major open-heart surgeries.

Marc prides himself on being available to his clients 24/7 and on his ability to assist with issues stemming from any dispute related to real estate – title, general real estate litigation, bankruptcy, sale, etc.

Email Bryan S. Jones

Bryan Jones is an Attorney at Kelley Kronenberg, where he handles matters related to mortgage foreclosure litigation and assists banks and other financial service providers with regulatory, enforcement, transactional, and litigation matters.

Before joining Kelley Kronenberg, Bryan gained extensive experience representing corporate and non-corporate clients in variety of litigation matters in state and federal court, including escalated mortgage foreclosure, commercial, timeshare, consumer, and employment litigation.

Bryan received his Bachelor of Science in Journalism from the University of Florida. He went on to earn his Juris Doctor degree from Florida International University College of Law, where he made Dean’s list, ranked in the top 20% of his class and received several book awards.

Bryan S. Jones Attorney

Email Travis P. Barry

Travis P. Barry is an Attorney at Kelley Kronenberg, where he handles matters related to real estate and mortgage foreclosure litigation. He also assists banks and other financial service providers with regulatory, enforcement, transactional, and litigation matters. Before joining Kelley Kronenberg, Travis worked at

a national law firm, where he represented lenders in real estate matters, including title actions and foreclosure litigation.

Travis received his Bachelor of Science degree from the University of Illinois Urbana-Champaign. He then went on to earn his Juris Doctor degree from DePaul University College of Law, where he was awarded the Benjamin Hooks Distinguished Public Service Award for completing over 200 hours of pro bono work. He was also a Dean’s Merit Scholarship recipient and served as a 1L Student Mentor.

Jordan E. Shealy Attorney

Email Jordan E. Shealy

Jordan Shealy is an Attorney at Kelley Kronenberg, where she handles real estate and mortgage foreclosure litigation matters. She also assists banks and other financial service providers with regulatory, enforcement, transactional, and litigation matters.

Jordan earned her Bachelor of Arts degree from the University of Florida, where she majored in English. During her time at the University of Florida, Jordan was a member of the Pre-Legal Honors Society.

Jordan then went on to earn her Juris Doctor degree from Nova Southeastern University-Shepard Broad College of Law, where she was an associate Editor

for the ILSA Law Journal, as well as a member of the Moot Court Society. Jordan was the Vice President of her School’s Association of Business Law Students and the Transactional Law Practice Group President. She gained legal experience while earning her J.D. by attending the Trial Advocacy Summer Institute, being a pupil in Craig S. Barnard Inn of Court, and working as a Teaching Assistant to Adjunct Professor Gary Brown.

While in school, Jordan worked at Kelley Kronenberg as a Summer Associate and Law Clerk, where she worked directly with our construction department. Jordan gained experience by summarizing discovery reports, trial records, briefs, and other documents. She drafted deposition reports, pleadings, letters to insurance adjusters, and tender letters to carriers. She also served as a Judicial Intern to Judge Marcia Cooke for the United States District Court, Southern District of Florida.

Travis P. Barry Attorney

ACCOLADES AWARDS AND FIRM AWARDS

Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:

REAL ESTATE ATTORNEY AWARDS

South Florida Business and Wealth: Real Estate Awards

Jason M. Vanslette Top Lawyer

Jason M. Vanslette

American Legal & Financial Network, JPEG Picture the Future Award

Jason M. Vanslette

Fort Lauderdale Illustrated “Top Lawyer”

Jason M. Vanslette

Martindale Hubbell AV Preeminent Rating

Jason M. Vanslette

Marc A. Marra

South Florida Legal Guide “Top Lawyers”

Jason M. Vanslette

Broward County Bar Association, “Top 40 Under 40”, 2021

Marc A. Marra

Best Lawyers in America: Ones to Watch

Marc A. Marra

Jason D. Silver

Florida Super Lawyers “Rising Stars”

Jason M. Vanslette, Marc A. Marra, Jason D. Silver, Bryan S. Jones

Legal Elite “Up and Comer”

Marc A. Marra

A Firm Built on Relationships

KELLEY

KRONENBERG IS A MULTI-PRACTICE BUSINESS LAW FIRM.

with over the convenience of more than 400 16 200 Employees Attorneys Locations

Founded in 1980, the firm is one of the fastest-growing law firms in Florida and amongst the largest in the U.S. The firm serves all types and sizes of public and private companies, including small businesses and individuals nationwide.