Kelley Kronenberg - In the Know – Real Estate - Q3 2024 by Kelley Kronenberg

IN THE NOW

REAL ESTATE EDITION

IN THIS ISSUE:

• Effective Oct. 1, 2024 - Florida Law Requires Seller Disclosure of Flood Damage

• Pursuing Post-Judgment Advances & Interest After Foreclosure Sale

• One Bite at the Apple: Why Losing an Action to Foreclose a Reverse Mortgage Might Bar Subsequent Attempts

• Laying Proper Foundation For Appointment Of A Receiver

• But Were The Borrowers Prejudiced? That Is The Question

• Illinois Will Allow Online Foreclosure Auctions Starting In January 2025

• Witness Preparedness For Depositions And Trial

• Indiana Supreme Court Clarifies Precedent on Implied Easements

• New York Statute of Limitations and Fraud Analysis

EDITOR’S LETTER

WELCOME

Jason M. Vanslette Editor and Chair of Real Estate Division

“ “The best time to buy a house is always five years ago.

–Ray Brown

This year has been unprecedented for residential real estate due to environmental disasters, stagnant interest rates, and ongoing political upheaval nationwide and abroad. This has led to one of the lowest origination rates for residential home sales since the 2008 financial crisis, as well as regulatory roadblocks against foreclosures nationwide (such as FEMA Holds, VA Moratoriums, etc.).

More importantly, the CFPB’s proposed changes to Regulation X (which could be approved by the end of the year) will potentially add even more regulatory oversight and loss mitigation requirements to mortgage servicers and essentially upend the ability to foreclose altogether for most lenders. These political requirements, added to an ongoing increase in environmental disasters, will undoubtedly create more strain on available REOs and seller inventory that could affect the real estate industry for years. Buckle up!

FLORIDA

Effective Oct. 1, 2024 - Florida Law Requires Seller Disclosure of Flood Damage

By: Jason M. Vanslette Editor and Chair of Real Estate Division

KK TAKEAWAY:

Effective October 1, 2024, recent Florida Legislature action (HB 1049) adds to the list of required disclosures by sellers in residential real estate property transactions to include past flood damage and flood claims.

BACKGROUND:

Prior to October 1, 2024, a homeowner selling their property was not required to disclose any history of flood-related damages or potential flood risks to a potential buyer as Florida courts were generally split as to whether flood risks were “readily observable” and thus required disclosure facts. There is a litany of required disclosures under Florida law such as disclosing all associations, pending code enforcement actions, lead paint hazards, radon gas risks, sewer line defects, etc. that are mandatory by all homeowners to potential buyers. Most of these required disclosures are already included in the Florida FAR/BAR Purchase and Sale Agreement directly or through option riders when applicable.

However, effective October 1, 2024, Florida HB 1049 went into effect as Section 689.302, Florida Statutes, which adds an additional required disclosure to be completed by a seller to any purchaser of residential property at or before the time of the sales contract regarding

flood damages and risks. “Flood damage” under HB 1049 is defined as the following:

• The overflow of inland or tidal waters.

• The unusual and rapid accumulation of runoff or surface waters from any established water source, such as a river, stream or drainage ditch.

• Sustained periods of standing water resulting from rainfall.

The required disclosure must also let the purchaser know that homeowner’s insurance policies “…do not include coverage for damage resulting from floods. Buyer is encouraged to discuss the need to purchase separate flood insurance with the Buyer’s insurance agent.”

Florida homeowners and residential sellers should be proactive in gathering all known flood history documentation including any filed floodrelated claims or federal assistance received

from same. Additionally, buyers should take the appropriate time to review the flood disclosures carefully to ensure they are investing safely and diligently in a volatile weather environment like Florida—especially those looking at homes near coastal communities or those with below sealevel designations.

PURSUING POST-JUDGMENT ADVANCES & INTEREST AFTER FORECLOSURE SALE

Distressed Investments LLC v. U.S. Bank Trust, N.A.

390 So. 3d 1230 (Fla. Dist. Ct. App. 2024)

By: Jordan E. Shealy, Attorney

KK TAKEAWAY:

If a lender files a Motion for Post-Judgment Advances before the expiration of the objection period on the Certificate of Disbursements, the lender is entitled to any amounts which have accrued post-judgment as it is not considered “surplus.”

BACKGROUND:

The appellant in this case is the foreclosed borrower’s assignee and the appellee is the foreclosing lender. The lender proceeded to sale on a total maximum bid of the Final Judgment amount. The property in question proceeded to foreclosure sale and sold to a third-party purchaser for an amount much higher than the lender’s Final Judgment amount. After entry of Final Judgment, the lender accrued fees, costs and advances in connection with the foreclosure of the property totaling $16,257.68. After the foreclosure sale – but before the Certificate of Disbursements was issued – the lender motioned the court for these additional fees, costs and advances. As there was a large amount of surplus left over after the sale, the borrower’s assignee also motioned the court for the surplus which borrower is entitled to.

The borrower argued that the lender was not entitled to any of the funds they were requesting because those funds were surplus left over after the sale and a foreclosing lender is not entitled

to surplus funds. The borrower also argued that if the lender wanted to recoup those funds, the proper motion would have been to amend the Final Judgment to include the funds and then adjust lender’s bid at the foreclosure sale.

According to the Final Judgment (as in almost all foreclosure Final Judgments) the lender was required to advance all subsequent costs and fee associated with preserving the property up until the sale and must be reimbursed for the same. While it is true that the lender cannot move to be reimbursed form the surplus of the sale, the question for the court was: When do the funds become surplus?

Section 45.031(7)(d), Florida Statutes (2022), defines “surplus funds” or “surplus” as the “funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.” The court noted that the lender’s motion for additional sums was filed before the Certificate of Disbursements was even filed, so there was no surplus identified at that point. Therefore, as the leftover funds had not yet been marked as surplus, the lender was not asking for surplus but merely asking to be reimbursed by the clerk for its advances made after judgment. Under the Final Judgment, the lender was entitled to be reimbursed. For this reason, the court granted the lender the $16,257.68.

One Bite at the Apple: Why Losing an Action to Foreclose a Reverse Mortgage Might Bar Subsequent Attempts

By: Bryan Jones, Attorney

KK TAKEAWAY:

In actions to foreclose a reverse mortgage, the doctrine of res judicata will bar the filing of a subsequent action upon an adjudication on the merits in favor of the mortgagor.

BACKGROUND:

The application of the doctrine of res judicata to mortgage foreclosure actions has been the topic of many appellate decisions in Florida, particularly over the course of the past decade. Ultimately, the courts, following precedent established by the Florida Supreme Court decision of Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), have reached a strong consensus that the doctrine of res judicata will generally not bar a subsequent foreclosure action, even after a finding on the merits in favor of a defendant, because each missed payment constitutes a separate and unique default under the mortgage, and each such default allows for a new acceleration of

the debt. As the Supreme Court pointed out in Singleton, when a mortgagor prevails in a mortgage foreclosure action, the parties are placed back in the same contractual relationship that existed prior to the filing of the action, with the continuing obligation of the mortgagor to continue making the required monthly payments on the loan. Therefore, even after the mortgagor prevails in the first action, if the mortgagor subsequently misses a payment, the lender can file a subsequent action to foreclose the same mortgage based upon the new default. This has become a well-established principal of mortgage foreclosure law. However, the recent case of Mortgage Assets Management Series I Trust v. Harvey, 2024 WL 4094183 examines the question as to whether the same rules apply to reverse mortgages. Florida’s Fifth District Court of Appeals has answered this question with a resounding “no.”

The Harvey matter concerned a second action to foreclose a reverse mortgage after the first matter concluded with a judgment in favor of a defendant, Hidden Ridge Condominium Homeowner’s Association, who was named in the action due to a potential interest in

the subject property. Both actions stemmed from a default under the reverse mortgage contract that allowed the lender to accelerate and foreclose upon the death of the borrower, who passed away in 2008. The mortgagee, OneWest Bank, FSB thereafter accelerated the loan and initiated the first action for foreclosure on October 10, 2013. The dispute over the first foreclosure action pertained to Hidden Ridge’s claim it its interest in the property was superior to that of OneWest Bank. For reasons that are unclear, the trial court found in favor of Hidden Ridge in the initial foreclosure action and entered final judgment in Hidden Ridge’s favor. The final judgment in the first foreclosure action was never appealed.

OneWest Bank thereafter transferred the reverse mortgage to The Bank of New York Mellon Trust Company, N.A. (“BONYM”), who filed a second action to foreclose the mortgage approximately a year after the dismissal of the first action. Hidden Ridge was once again joined as a defendant and pleaded an affirmative defense of res judicata on the basis that the matter had already been adjudicated in Hidden Ridge’s favor and could not be relitigated. Following a non-jury trial, the trial court ruled in

favor of Hidden Ridge on its res judicata defense. An appeal followed.

On appeal, BONYM argued that the Fifth District Court of Appeals should apply the same treatment of res judicata to its reverse mortgage foreclosure as it would to a traditional mortgage foreclosure action. The appellate court declined to do so, instead pointing out that the fundamental differences between a reverse mortgage and a traditional mortgage as it pertains to this issue. Specifically, the court explained that, unlike a traditional mortgage where new payments continue to come due, triggering a new potential default with each passing month, reverse mortgages do not carry monthly payment obligations. Instead, the default alleged by BONYM was based upon the death of the borrower, an event that can only happen once.

As a result, once the lender accelerated the debt based upon the death of the borrower and there was an adjudication on the merits against the lender, there is no new default from which to trigger a new right accelerate. As the Harvey Court points out, “Our system does not permit such repeated bites of the apple.”

This case underscores the importance for lenders of hiring competent attorneys to ensure that a just result is achieved the first time around and to understand their rights and the appropriate recourse in the event an unexpected result occurs. Lenders should rely on experienced and knowledgeable attorneys, like those at Kelley Kronenberg, to assist in navigating these issues.

Laying Proper Foundation For Appointment Of A Receiver

CONCORDIA VENTURES, LLC AS TRUSTEE OF CVLR1 TR. UAD JANUARY 14, 2013 V. ARCPE 1, LLC

49 Fla. L. Weekly D1661 (Fla. 2d DCA Aug. 7, 2024)

By: Marc A. Marra, Partner

KK TAKEAWAY:

A movant must present evidence demonstrating that the real property at issue is subject to serious loss or harm for a Court to grant entitlement to the appointment of a receiver.

BACKGROUND:

By way of background, a mortgagee filed a mortgage foreclosure action against defaulting borrowers, naming as a defendant therein Concordia Ventures, LLC (“Concordia”), the owner of the subject property. A motion to appoint receiver (“Motion”) was filed alleging appointment of a receiver was proper as Concordia was renting and generating income from the property, and it was inequitable for Concordia to take the property subject to the mortgage as Concordia was not paying property taxes nor association assessments. The trial court granted the Motion, and appointed a receiver to determine whether Concordia was generating income from the property; and to

determine who was paying the property taxes and association assessments. Concordia then appealed the order granting the Motion.

In their review, the Second District Court of Appeal acknowledged that the appointment of a receiver is largely within the sound judicial discretion of the trial court. However, the appellate court went on to add that courts must cautiously exercise discretion and find, through evidence presented by the moving party, that a receiver is necessary to preserve the property from serious loss.

Despite the Motion alleging Concordia was renting the property for profit and failing to pay property taxes and association assessments, no evidence was presented to support those allegations. The appellate court held that the burden was on the movant to present some evidence, via testimony, affidavit, or sworn pleading, that the appointment of a receiver was proper and necessary to prevent the property from harm. As that burden was not met by the movant (but rather to a large degree improperly placed on the receiver) the appellate court found that the trial court abused its discretion; and reversed the trial court’s ruling.

But Were The Borrowers Prejudiced? That Is The Question

Rushmore Loan Management Services, LLC v. Kavoll, 379 So. 3d 1174 (Fla. 4th DCA 2024)

By: Irina Danilyan, Partner

KK TAKEAWAY:

While a Florida foreclosure trial court may exercise its equitable powers in determining whether to grant or deny the relief of foreclosure, it should remain mindful of the well-established law on whether borrowers, who defaulted on their mortgage loan obligation, have suffered any adverse effect from the foreclosing bank’s failure to substantially comply with the mortgage terms.

In this issue of In The Know®, we turn to one of the requirements a foreclosure plaintiff must meet in order to establish its prima facie case in a mortgage foreclosure action – compliance with the condition precedent. A recent case decided by Florida Fourth District Court of Appeal (“Fourth DCA”) touches upon a specific factual nuance of this requirement and reminds the litigants that the foreclosure trial court should inquire whether the mortgagors were prejudiced by the foreclosing bank’s deviation from the terms of the loan documents.

In Rushmore Loan Management Services, LLC v. Kavoll, the Fourth DCA concluded that the court below erred in finding the Bank failed to comply with condition precedent where Bank was required to send a default letter to mortgagors’ New York address instead of the property address and dismissing the case without further inquiry into possible prejudice to the Defendants from such failure.

BACKGROUND:

After Alan and Renay Kavoll (“Borrowers”) defaulted under the note and mortgage on their Florida property, the Bank instituted a foreclosure action. In its complaint, the Bank alleged that it complied with all conditions precedent. The Borrowers stated in their answer that while the Bank had sent the default letter to the subject property’s address, it had failed to send the default letter to their New York address set out in the mortgage. At a non-jury trial, the trial court found in Borrowers’ favor and dismissed the case. The appeal ensued.

DISCUSSION:

In its succinct, well-reasoned opinion, the District Court discussed who should bear the burden of proof at trial of failure to comply with conditions precedent under the mortgage. The court initially observed that the Borrowers admitted in their responsive pleading that the demand letter was sent. Specifically, they stated in their first affirmative defense that default letter was sent only to the property address, even though the mortgage specified a New York post office address as their notice address.

The Fourth DCA presented a concise summary of well-settled Florida decisional law regarding establishing compliance with conditions precedent in mortgage foreclosure actions. The court started the discussion by reminding that a bank must prove substantial compliance with a condition precedent as part of its prima facie case. Importantly, a bank establishes a prima facie case of a substantial compliance with a default letter condition precedent when it shows the letter is mailed to a valid address for the defendant. Fed. Nat’l Mortg. Ass’n v. Hawthorne, 197 So. 3d 1237, 1240–41 (Fla. 4th DCA 2016); Citigroup Mortg. Loan Tr. Inc. v. Scialabba, 238 So. 3d 317, 321–23 (Fla. 4th DCA 2018); Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So. 3d 1277, 1280 (Fla. 4th DCA 2016). That is precisely what happened in this case, as the Borrowers admitted in their affirmative defense that a default letter was mailed to a valid address, although not the preferred one.

Citing seminal Florida decisions, the District Court noted that the Borrowers now bore the

burden of showing they were prejudiced by the Bank sending the letter to the property address instead of the New York address, prescribed by the mortgage. Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 926-27 (Fla. 4th DCA 2016); Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015). These cases are significant because they establish that a defect in the default notice does not adversely impact the borrowers if, for instance, they have made no attempt to cure the default. In other words, the Bank’s deviation from the terms of the mortgage does not necessarily prejudice the Borrowers.

The court further reasoned that, as it was now the Borrowers’ burden to show they were prejudiced, the court below should not have involuntarily dismissed the case because a motion for involuntary dismissal only asks whether the plaintiff has made a prima facie case. The Fourth DCA properly concluded that the Bank did so in this case, reversed the trial court’s judgment of involuntary dismissal, and remanded back to the trial court for further proceedings.

Witness Preparedness For Depositions And Trial

By: Danielle Spradley, Attorney

KK TAKEAWAY:

Individuals who serve as witnesses for mortgagors and servicers should spend a sufficient amount of time to prepare to testify in depositions, trials and other evidentiary hearings. A witness should know the case well and be prepared to answer the questions pertaining to the areas of inquiry as stated in the notice of taking deposition or know the allegations in the Complaint to provide general testimony at trial.

BACKGROUND:

If you operate as a corporate representative in the world of litigation, the odds are great that you will be required to provide testimony at the request of opposing counsel or before a Judge as the main witness to prove the Plaintiff’s case in a foreclosure trial. While your attorney such as I, may ask you to commit a few hours of your time to prepare you for your testimony, it will be time well spent, even if you have testified previously.

A deposition is formal testimony that someone who has promised to tell the truth makes statements that can be used in court. Pursuant to the Florida Rules of Civil Procedure 1.310, “[a]fter the commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination.” This may include the person who verified and executed the complaint, the person who executed the affidavit of indebtedness, or the person designated as the corporate representative, who may testify at trial.

While motions for protective order are tools to be used to limit who may be deposed, the scope of the deposition, how long a deposition can be conducted, or the location where the deposition may take place, the deposition will be permitted if the person’s testimony is deemed to be relevant to the case. This testimony is binding on the corporation, as that individual is speaking on behalf of the corporation, whether the deposition goes well, or not.

A notice of taking deposition or notice of taking deposition duces tecum must disclose the topics for inquiry at the deposition so that the deponent knows how to prepare. These topics will typically include the allegations made in the complaint, the allegations stated in the defendant’s affirmative defenses and other statements made under oath. When a deposition includes a duces tecum, the documents to be produced are fair game for inquiry. Therefore, a witness should be very familiar with the documents. That witness should understand how to read the payment history. Some payment histories

include all sorts of codes and internal lingo, which may require decoding. A witness must be able to explain in layman’s terms what those codes mean; when the payments were made and how much went to principal, interest, late fees, taxes, insurance, etc. A witness needs to know the authority by which the Plaintiff can collect attorney’s fees, or whether the Plaintiff was required to provide notice after the default before initiating the foreclosure action, or whether the subject loan requires approval by the Secretary of the U.S. Department of Housing and Urban Development to initiate an action; whether the servicer was required to attempt to have a face-to-face meeting with the borrower. In litigation, every factual detail is of great importance, and these are all details that if stated incorrectly can damage a Plaintiff’s case.

While, at the conclusion of the deposition, the witness has the right to read the deposition and confirm whether or not what was recorded was correct and may revise their answers with the explanation, it is a best practice to get it right the first time so that the veracity of your testimony is not under negative scrutiny by the finder of fact, in these cases.

Even though some depositions and trials are currently being conducted via Zoom, you should treat your preparation the same as you would if you were testifying in-person. Your testimony should be based on your preparation before the deposition or trial. Under no circumstance should you open/ access your working portal to answer any questions. Nor should you have documents

printed out that you read from. Even if these documents were not requested via a duces tecum request, they may need to be produce if the witness testifies from the document.

So, take the time to prepare. Review the necessary documents to maximize preparedness and remember, it’s okay to say, “I don’t know.” Do not answer questions of which you do not know the answer. You are not required to guess the answer and it is better that you don’t. The answers provided are binding, so witness preparedness provides the best opportunity to answer the questions to the best of the witness’s ability with accuracy. Lastly, only answer the question that is asked of you. Allow the deposing attorney to ask follow-up questions as opposed to offering up all your company’s secrets. This puts the Plaintiff in the best possible position for a successful prosecution.

Illinois Will Allow Online Foreclosure Auctions Starting In January 2025

By: R. Elliott Halsey, Partner

As of January 1, 2025, section 735 ILCS 5/151507.2 of the Illinois Code of Civil Procedure permits a foreclosing Plaintiff to request use of an online platform or online service by a sales agent (Judge, Sheriff, or third party) to conduct a foreclosure sale.

A Notice of Sale must now designate whether sale is (1) online, (2) in person, or (3) both, and (4) must include website where online bidding

INDIANA

will take place. The Notice of Sale for an online auction does not have to reflect the time, date, place, because the online service website will provide that information.

No more than $400 may be charged to the case for the online service without court permission.

A third-party online sale provider is defined as any sale platform or service that is not the person conducting sale or party to case. Online bidding may pend for 3 days and may be extended by the service provider to encourage and facilitate bidding. The service may not retain custody of sales funds, unless ordered by court, but may promote and market the sale to encourage and facilitate buyers. The online provider must check the identification of the purchaser through for the Federal Office for Foreign Assets Control.

KK TAKEAWAY:

A foreclosing Plaintiff must recite the online option in the Judgment of Foreclosure and make a separate request to allow the appointed sales agent to utilize an online foreclosure sale service. The service should be vetted for compliance with the requirements imposed by the new law. Potential benefits of the service appear to be a lengthier bid time reaching a wider pool of potential buyers.

Indiana Supreme Court Clarifies Precedent on Implied Easements

By: Travis P. Barry, Attorney

KK TAKEAWAY:

Easements by prior use and of necessity are two distinct concepts, each with its own requirements. The court adopted a brightline rule requiring a parcel to be legally landlocked in order to recognize an easement of necessity.

BACKGROUND:

In Morehouse v. Dux North, LLC, 226 N.E.3d 758 (Ind. 2024), the court considered a case where the Plaintiff owned a parcel of land that became landlocked. Prior neighbors allowed the Plaintiff to access the parcel via a private road on their property. Years later, the Defendants became the new owners of the neighboring property and denied the Plaintiff permission to continue using the private road. Plaintiff then filed an action for declaratory judgment, seeking to have an easement

imposed that would allow access to the private road. The trial court granted summary judgment in favor of the Plaintiff and found an implied prior-use easement.

Under Indiana law, easements may arise by grant (express), prescription (via trespass), or implication. Early case law was unclear in describing the two types of implied easements – easement-by-prior-use and easement-of-necessity. At times, the two terms were used interchangeably. The Indiana Supreme Court declared in Morehouse that these are two distinct concepts. Claimants may seek an implied easement with either or both claimed easements. The defeat of one does not mean that the other necessarily fails.

The court went on to provide factors for evaluating whether either implied easement exists.

Easement-by-Prior-Use Test:

1. The land was once commonly owned;

2. The common owner imposed a servitude (easement) on part of the land to benefit another part;

3. The servitude was permanent and obvious;

4. The land was eventually severed (meaning the common owner transferred part of the land to another owner);

5. At severance the servitude remained in use; and

6. At severance the servitude was needed to enjoy the dominant estate (the parcel that the easement benefits; in contrast

to the servient estate, which is the parcel the easement burdens) in substantially the same condition.

Easement-of-Necessity Test:

1. The servient and dominant properties had a common owner (unity of ownership);

2. The unity of ownership was severed when the common owner conveyed one of the parcels (severance);

3. This severance made an easement necessary for the owner of the dominant estate to access a public road (necessity at severance); and

4. The easement’s necessity remained after severance (continuing necessity)

The court further clarified that “necessary” means essential or indispensable. Therefore, courts will impose an easement-of-necessity only when the parcel is legally landlocked.

In summary, the Indiana Supreme Court made it clear that, while there are similarities, easements-by-prior-use and easements-ofnecessity are two different concepts, each with their own requirements. A landowner confronted with the issue of a landlocked parcel should recognize the differences between the two and be sure to craft a claim requesting relief under each theory, which will provide the best chance of obtaining the desired result.

New York Statute of Limitations and Fraud Analysis

By: Jason D. Silver, Partner

KK TAKEAWAY:

Litigants in New York must be aware of the current trends in statute of limitations and fraud analysis by the courts

BACKGROUND:

In a very recent opinion issued on September 26, 2024, New York’s Appellate Division, First Judicial Department, which has appellate jurisdiction over New York County and the Bronx, affirmed a ruling in an action involving the issues of statute of limitations and the threshold requirements of pleading fraud in New York. The recent ruling is Rabinowitz v. Clarke, 2023-06056, 2024 WL 4292437 (1st Dept. Sept. 26, 2024).

In a dispute arising out of a partnership agreement and the loaning of $60,000.00, the individual which provided the funds to a partner to mutually benefit the partnership later sued, alleging the partner used the loaned funds for personal reasons.

The Plaintiff, Jacob Rabinowitz, asserted it gave the money in furtherance of a real estate investment and that that he was later tricked, deceived, and defrauded by defendant Simon Clarke.

The Bronx County Supreme Court denied a Motion to Dismiss filed by Clarke on the often-litigated issues of the statute of limitations and whether fraud was pled with enough particularity.

Clarke appealed, and the appellate court provided helpful discussions which could assist litigants when attempting to analyze the sufficiency of claims or defend against fraud and statute of limitations claims.

It held that Rabinowitz’s allegations adequately identified in a detailed enough manner, “who made the misrepresentations” and “when the misrepresentations were made.”

NEW YORK

It further pointed out that even if there was a lack of the substance of the misrepresentations made, that the allegations were enough to sufficiently “inform” Clark “with respect to the incidents complained of.”

Clarke next argued a statute of limitations defense, which is six (6) years for breach of contract claims under New York Law CPLR 213(2).

The court held that Rabinowitz complied with the statute of limitations and sufficiently set forth facts constituting the basic elements of a breach of contract claim. It cited the opinion of Morris v 702 E. Fifth St. HDFC, 46 AD3d 478, 479 (1st Dept 2007).

The court further discussed that the allegations of the complaint are to be read and analyzed liberally, and Rabinowitz

sufficiently alleged that the parties agreed to form a partnership to purchase real estate, that Clarke was given $60,000.00 “under the guise of purchasing and renovating real property,” and that the money was given as part of and to advance the partnership alleged.

The appellate Court also held that the allegations were substantive enough in providing the details that Clarke breached the agreement by using the money for himself rather than to purchase and renovate real property, causing a loss to Rabinowitz.

This recent opinion can be a very helpful tool for litigants when both drafting a cause of action and defending against a claims in New York Courts on the often-litigated issues of fraud and the statute of limitations.

CONTRIBUTORS MEET THE

Jason M. Vanslette Editor and Chair of Real Estate Division

Email Jason M. Vanslette

Jason Vanslette is an “AV” rated Partner and Business Unit Leader, focusing his practice on Real Estate, and Mortgage Foreclosure & Default Services. In his practice, he represents mortgage servicers, mortgage lenders, and other financial service providers with foreclosure, bankruptcy, evictions, and title litigation matters. Jason overseas and manages the Real Estate and Mortgage Default and Lender Representation Divisions at Kelley Kronenberg, which has recently expanded to include Florida, Illinois, Indiana, and New York. 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.

Jordan E. Shealy Attorney

Email Jordan E. Shealy

Jordan Shealy is an Attorney at Kelley Kronenberg, where she handles real estate and mortgage foreclosure & default services. 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

Bryan S. Jones

Attorney

Email Bryan S. Jones

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

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.

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.

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.

Irina Danilyan Partner

Email Irina Danilyan

Irina Danilyan is a Partner at Kelley Kronenberg, where she specializes in mortgage foreclosure & default services and the representation of creditors in bankruptcy matters incident to mortgage foreclosures.

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.

Danielle M. Spradley Attorney

Email Danielle M. Spradley

Danielle Spradley is an attorney at Kelley Kronenberg, where she assists in handling matters related to mortgage foreclosure & default services.

Before joining Kelley Kronenberg, Danielle spent more than fifteen years handling every aspect of criminal and civil litigation, amassing substantial trial and dispute resolution experience. Most recently, Danielle served as Managing Attorney overseeing the Litigation Department of a renowned national law firm where she not only provided supervision and guidance to the firm’s attorney’s and staff, but also represented clients in complex civil litigation matters, and as counsel for major

financial institution and investor plaintiffs in foreclosure actions. For many years, Danielle handled Estate Planning matters and represented clients in complex probate litigation; and, she also represented major financial institutions and investors in debt collection actions. Prior to entering the private sector, Danielle spent two years working as an Assistant Public Defender.

Danielle received her Bachelor of Arts from Florida State University where she demonstrated academic excellence, earning inclusion on the Atlantic Coast Conference Honor Roll. She also achieved athletic and extracurricular excellence as a member of FSU’s Varsity Track and Field Team, also serving as the team’s Student Ambassador. Danielle went on to obtain her Juris Doctor degree from University of Miami School of Law where she served as an Executive Board Member of the Entertainment and Sports Law Society. While in law school, Danielle began amassing experience through a Judicial Clerkship for the Honorable Norman C. Roettger, Jr.

Elliott Halsey Partner

Email R. Elliott Halsey

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.

Elliott Halsey

Travis P. Barry 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.

Jason D. Silver Partner

Email Jason D. Silver

Jason Silver is a Partner at Kelley Kronenberg, where he concentrates on matters related to all aspects of mortgage foreclosure & default services, assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters, and representing commercial property owners and property managers with tenant lease compliance and breach issues.

Jason has close to a decade of experience in contested foreclosure litigation, guiding creditors from the beginning to completion of a court action.

Prior to joining the firm, Jason worked as an Associate Attorney at an AmLaw 200 firm focusing his practice

in the areas of banking and consumer finance. He also practiced bankruptcy and general litigation as well as municipal and government law, having presided as the Deputy Municipal Attorney for the Village of El Portal, Florida.

Jason received his Bachelor of Science in Public Relations with a minor in History from the University of Florida where he was elected to the Florida Blue Key Honor Society and awarded the Honorable Mention for the Outstanding Leadership and Service Award.

He then went on to earn his Juris Doctor degree from St. Thomas University School of Law. While in law school, Jason received a Book Award in Appellate Advocacy. Jason also worked as a legal intern for the Office of the City Attorney at the City of Miami in the Land Use, Zoning, and Quality of Life Division and interned for the Hon. Judge David Gersten (ret.) at the Third District Court of Appeal. Jason is an avid runner and successfully completed the ING Miami Half Marathon and 13.1 races in 2011 and the Hollywood Beach Half Marathon in 2020.

LOCATIONS

FORT LAUDERDALE

10360 W. State Road 84

Fort Lauderdale, FL 33324

Phone: (954) 370-9970

ORLANDO

20 North Orange Avenue, Suite 704

Orlando, FL 32801

Phone: (407) 648-9450

TAMPA

1511 North Westshore Blvd., Suite 400

Tampa, FL 33607

Phone: (813) 223-1697

DAYTONA

128 Orange Avenue, Unit 306

Daytona Beach, FL 32114

Phone: (754) 888-5437

BOSTON

90 Canal Street

Boston, Massachusetts 02114

Phone: (754) 888-5437

NEW YORK CITY

250 Park Avenue,7th Floor

New York, NY 10177

Phone: (845) 306-7867

CHICAGO

20 N. Clark Street, Suite 1150

Chicago, IL 60602

Phone: (312) 216-8828

JACKSONVILLE

10245 Centurion Parkway N, Suite 100 Jacksonville, FL 32256

Phone: (904) 549-7700

MERRILLVILLE

233 E. 84th Drive, Suite 200

Merrillville, IN 46410

Phone: (317) 731-6243

MIAMI

220 Alhambra Circle, Suite 410

Coral Gables, FL 33134

Phone: (305) 503-0850

NEW ORLEANS

400 Poydras Street, Suite 2400

New Orleans, Louisiana 70130

Phone: (504) 208-9055

TALLAHASSEE

6267 Old Water Oak Road, Suite 250

Tallahassee, FL 32312

Phone: (850) 577-1301

DALLAS

5956 Sherry Lane, 20th Floor

Dallas, TX 75225

Phone: (983) 999-4640

BY APPOINTMENT ONLY

SHORT HILLS

51 John F. Kennedy Parkway

First Floor West

Short Hills, NJ 07078

Phone: (908) 403-8174

ATLANTA

1100 Peachtree Street NE, Suite 200

Atlanta, GA 30309

Phone: (404) 990-4972

WEST PALM BEACH

1475 Centrepark Blvd., Suite 275

West Palm Beach, FL 33401

Phone: (561) 684-5956

INDIANAPOLIS

10475 Crosspoint Blvd., Suite 218

Indianapolis, IN 46256

Phone: (317) 731-6243

NAPLES

1570 Shadowlawn Drive

Naples, FL 34104

Phone: (239) 990-6490

ALBANY

401 New Karner Road. Suite 301

Albany, NY 12205

Phone: (845) 306-7870

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: