Kelley Kronenberg - In the Know – Real Estate - Spring 2022 by Kelley Kronenberg

IN THE

S P R I N G E D I T I O N 2022

NOW

REAL ESTATE EDITION

IN THIS ISSUE: • Colombo v. Ras – FCCPA Showdown • Documentary Stamps: A Foreclosure Defense? • IL Notice Of Sale Requirements • Arbitrations: Required In Foreclosures? • Commercial Eviction Rent- Evidentiary Or Final? • 2nd DCA Decides Timeline For Surplus Funds • Combatting “Bad Faith” Bankruptcy Filings

EDITOR’S LETTER

TABLE OF

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

COLOMBO V. RAS – FCCPA SHOWDOWN . . . . . . . . . . . . . . . . . . . . . . . . 5-6 DOCUMENTARY STAMPS: A FORECLOSURE DEFENSE? . . . . . . . . . . . . . 6-8

You can’t allow tradition to get in the way of

“

CONTENTS

innovation. There’s a need to respect the past, but it’s a mistake to revere your past. –Bob Igor

There is a lot of speculation in the real estate

mortgage lenders, investors, and developers,

market currently regarding housing inventory,

all of which are greatly impacted by even the

rising interest rates and a possible recession

most minimal variances in interest rates or

due to inflationary economic policies. Our

buyer demands, we must constantly look at our

industry in not immune to the cyclical nature

own internal structure and innovate changes

of housing supply/demands or economic

to meet the fluctuating needs of our clients.

downturns, but to remain successful in this

These changes are not for survivability alone,

industry one must be willing to adapt and

but also to ensure the future success of our

evolve with the current market and political

team in an unknown economic environment.

climates. As a law firm that represents national

IL NOTICE OF SALE REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9 ARBITRATIONS: REQUIRED IN FORECLOSURES? . . . . . . . . . . . . . . . . . . 9-10 COMMERCIAL EVICTION RENT- EVIDENTIARY OR FINAL?. . . . . . . . . . 11-12 2ND DCA DECIDES TIMELINE FOR SURPLUS FUNDS . . . . . . . . . . . . . . . 12-13 COMBATTING “BAD FAITH” BANKRUPTCY FILINGS . . . . . . . . . . . . . . 13-16 CONTRIBUTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-21 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27

Colombo v. Ras – FCCPA Showdown By: Gary Sonnenfeld, Attorney

KK TAKEAWAY: Reinstatement

Letters

requiring

the

repayment of attorney’s fees and costs from a prior foreclosure action do not violate the Florida Consumer Collection Practices Act (FCCPA). Plaintiffs may pursue attorney’s fees incurred in previous foreclosure attempts in subsequent foreclosure actions.

BACKGROUND: The Fourth District held in Colombo v. Robertson Anshutz, No. 4D20-1719 (Fla. 4th DCA May 4, 2022) that the mailing of a reinstatement letter requiring the borrower to pay attorney’s fees associated with a prior foreclosure action is not a violation of the FCCPA. The Court focused its discussion on the terms of the mortgage. Specifically, the Court focused on subparagraph 19(c) of the standard mortgage contract. The subparagraph says that one of the conditions for the borrower to reinstate the loan is that the borrower “pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys’ fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender’s interest in the Property and rights under this Security Instrument”. The Court found that the term of the contract is clear and nothing that occurred in the prior foreclosure action changes any of the terms 4 | IN THE

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of the contract. The Court reasoned that the borrower was

services to enforce the loan.

The Court

focused only on 19(c) here and in Leigh.

under no obligation to pursue reinstatement

The Fourth District did not deviate from

under paragraph 19(c). The Court pointed

established case law and clarified that

out that the borrower could seek funding

attorney’s

from another lender making the provision in

actions

paragraph 19 irrelevant.

financial institutions are entitled to recover

The borrower’s argument was based on a theory that because Plaintiff had paid the borrower’s attorney’s fees under Florida Statute 57.105(7) at the conclusion of the previous action the Plaintiff was not entitled to

fees

are

from

prior

legitimate

pursuant to the mortgage.

foreclosure

expense

that

The right to

recover these amounts is allowed under case law in a foreclosure action and letters requesting these funds be repaid as part of a reinstatement do not violate the FCCPA.

its fees for defending that action despite the terms of the contract. The Court explained the logical fallacy in the borrower’s argument pointing out that the Plaintiff’s fees are not related to the amount paid to the borrower in the prior action and that nothing in the payment of the Plaintiff’s fees diminishes the amount already paid to the borrower or changed the terms of the contract.

Documentary Stamps: A Foreclosure Defense?

BACKGROUND:

By: Irina Danilyan, Attorney

2022 WL 1559368 (Fla. 3d DCA 2022).

KK TAKEAWAY:

Florida

The key takeaway for the foreclosure plaintiffs

Existing case law makes the outcome of this

from this case is that swift actions by the

case unsurprising. The Colombo Court relied

Plaintiff, after the case is dismissed at trial

heavily on U.S. Bank Trust, N.A. as Trustee

due to the failure to record a loan modification

for LSF9 Master Participation Trust v. Leigh,

agreement and pay documentary stamp tax

293 So.3d 515 (Fla. 5th DCA 2019). The Leigh

on the increase of the principal balance, can

Court held attorney’s fees and costs from

save the case at the trial level. Specifically,

prior foreclosure actions are recoverable in

filing of a timely motion for rehearing to reopen

a subsequent foreclosure action. The Leigh case focused on the demand letter instead of a reinstatement letter but followed similar logic as the Colombo case. Additionally, Paragraph 19(c) is one of many clauses in the standard mortgage where the borrower promises to pay the attorney’s fees of the financial institution if it becomes necessary for the Plaintiff to utilize legal 6 | IN THE

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the evidence and submission of proof of the payment of outstanding documentary stamp taxes on the increased principal balance of the modified loan should cause the trial court to reopen the case to accept the evidence of the tax payment, vacate the dismissal, and ultimately allow the case to be tried on its merits.

moved for involuntary dismissal based on

Wilmington Trust, N.A. v. Alberto Serpa, et al.,

Florida Statutes §201.08(1)(b), for the failure to pay documentary stamp tax on the loan modifications. Despite Wilmington’s request

201.08(1)(b)

for continuance or abatement, to allow it to

precludes the enforcement of a mortgage,

pay the documentary stamp tax, the trial court

trust deed, or other instrument where

granted the Serpas’ motion for involuntary

documentary stamp taxes have not been

dismissal and entered a final judgment in

paid. A challenge to the foreclosure plaintiff’s

their favor, dismissing the case. Wilmington’s

noncompliance with this statute may be

timely “motion for rehearing and alternatively

brought as late as at trial. See Somma v. Metra

to reopen the evidence ” was denied by the

Elecs. Corp., 727 So. 2d 302, 304-05 (Fla. 5th

trial court. The appeal ensued.

Statutes

Section

DCA 1999). This is precisely what happened in Wilmington Trust, N.A. v. Alberto Serpa et al., a recent mortgage foreclosure case in MiamiDade County, Florida, where Wilmington Trust, N.A. (“Wilmington”) sought to foreclose on the property owned by the Serpas as a result of the default under the promissory note, mortgage, and loan modification agreements.

In its concise opinion, the Third District Court of Appeal stated it found no abuse of discretion in the trial court’s granting of the Serpas’ motion for involuntary dismissal, but observed that the discretionary act of dismissal subsequently turned into error when the trial court paid no regard to Wilmington’s prompt payment of the outstanding taxes

At the trial, after Wilmington completed a

and timely motion to reopen the evidence to

presentation of its case in chief, the Serpas

consider such payment. The Third District IN THE

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ruled that because Wilmington presented a timely request to introduce the evidence of the subsequent payment of documentary stamp taxes on the loan modification, the trial court should have granted its request to reopen the case to admit evidence of such proof of payment, and to allow the case to be tried on its merits rather than being dismissed due to a procedural technicality. See Serpa, 2022 WL 1559368, at 1-2 (emphasis added). The key takeaway for the foreclosure plaintiffs from this case is that swift actions by the Plaintiff, after the case is dismissed at trial due to the failure to record a loan modification agreement and pay documentary stamp tax on the increase of the principal balance, can save the case at the trial level. Specifically, filing of a timely motion for rehearing to reopen the evidence and submission of proof of the payment of outstanding documentary stamp taxes on the increased principal balance of the modified loan should cause the trial court to reopen the case to accept the evidence of the tax payment, vacate the dismissal, and ultimately allow the case to be tried on its merits.

IL Notice Of Sale Requirements By: R. Elliott Halsey (IL), Partner

KK TAKEAWAY: An Illinois Notice of Sale has a common description, a legal description of the property, and a description of any improvements. The ‘single family residence’ description is legally

8 | IN THE

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sufficient, and a mortgagee does not have to include additional details to entice bidders.

BACKGROUND: In U.S. Bank Nat’l Ass’n as Tr. for C-Bass Mortg. Loan Asset-Backed Certificates, Series 2006-CB2 v. Sharif, 2020 IL App (1st) 191013 (Sept. 17, 2020), the mortgagor appealed the order confirming foreclosure sale on grounds that public notice of sale did not comply with section 15-1507(c)(1) of the Illinois Mortgage Foreclosure Law (IMFL) which requires “public notice of the sale.” The mortgagor contended that the Notice description of the property as “improved with a single-family residence” was vague and not descriptive and that an actual description of the type and size of the home would have enticed more prospective buyers to bid on the property. The trial court disagreed with the mortgagor, finding the notice sufficient and no error present that would invalidate the legality of the notice. The appellate court affirmed, stating that section 15-1507(c) of IMFL contains three requirements for a Notice of Sale: a common description, a legal description of the property, and a description of any improvements.

Interestingly, the Court found that the legislature’s intent in creating these requirements for the notice of sale was to provide enough information to prospective buyers so that they can perform their due diligence prior to bidding on the property. In researching this issue, the Court visited the assessor’s website by searching the common property address and viewed a photograph of the property, learned the square footage of the land and building, the age of the home, as well as other details about the property.

BACKGROUND:

The court found the information provided on the publicly available assessor’s website to be significantly more detailed than the information defendant suggests should have been included in the notice of sale. The property description details here are readily available and easily searchable by reference to the Notice, and so the information included in the Notice was sufficient. Moreover, the mortgagor had not provided evidence that the resulting sale amount bid was grossly inadequate as a result of an immaterial error in the overall description alleged.

Courts now must treat arbitration clauses and related language as they would treat any other plain contract terms. A new ruling from the Supreme Court of the United States held that a party is not required to show prejudice to establish that an opposing party has waived its right to arbitrate by litigating in court See Morgan v. Sundance, Inc., 21-328, 2022 WL 1611788, at *2 (U.S. May 23, 2022).

Arbitrations: Required In Foreclosures? By: Jason D. Silver, Attorney

KK TAKEAWAY: With arbitrations trending in litigation and the federal courts issuing major opinions on the issue, all parties need to be aware that arbitration provisions will be stricly applied in court and that arbitration may be ordered to occur.

Arbitration in litigation is on the rise. Courts are, sometimes unexpectedly, referring parties to arbitration even if they prefer not to take part in same. As arbitrations are being ordered in residential foreclosure actions more frequently than in the past, lenders need to be ready to address all issues related to arbitration provisions in contracts and how courts will likely enforce them.

In sum, this new ruling means that courts cannot approach the arbitration issue with a liberal, broad view toward granting the same any longer. The analysis is now whether a party has waived its right to arbitrate by invoking or participating in the judicial process is to be judged by the same standard applied to all other contractual rights, i.e., whether that such equates to “the intentional relinquishment or abandonment of a known right.” This same strict treatment very recently occurred in the Eleventh Circuit Court of Appeals, where a loan servicer sought to strictly apply an arbitration provision to a borrower in Attix v. Carrington Mortgage Services LLC, –– F.4th ––, 2022 WL 1682237

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(11th Cir. May 26, 2022). After the lower U.S. District Court ruled in favor of the borrower stating the Dodd-Frank Act prohibited enforcement of arbitration provision as written, the loan servicer appealed, arguing the borrower should be bound to the terms and conditions of the agreement which the loan servicer’s pay-byphone service vendor utilized. The subject arbitration clause stated that any dispute arising from the use of vendor services shall be adjudicated in arbitration. The Eleventh Circuit reversed the ruling, holding that the parties “clearly and unmistakably” consented to delegate all questions of arbitrability to an arbitrator and clearly ruled for the freedom of parties to choose arbitration as a forum to adjudicate claims. This ruling was in line with the holding Morgan case discussed above, which is that an arbitration clause should be reviewed and enforced just like any other plain contract term should be reviewed and enforced.

As a result, parties who now seek to arbitrate will need to clearly assert that request early on and parties opposing arbitration may have an easier time preventing same depending on the contractual language between the parties. Once the parties reach arbitration, it is important to note that relaxed rules of evidence are applied during an arbitration. Such could be a benefit or detriment depending on the lender’s foreclosure case. If the development of the case is dependent upon enforcing the strict rules of evidence applicable in state court, then the case is better off in state court. On the other hand, if challenges or issues would be negatively impact by the strict rules of evidence, then arbitration of the dispute would be preferable to litigation in court. As the evidence and arguments in foreclosure actions are usually narrow and favor lenders, lenders should still prefer to litigate the action in state court. Due to trends in litigation, however, lenders and their attorneys must be familiar with, and ready to take part in arbitration.

Commercial Eviction RentEvidentiary Or Final? By: Jacqueline Costoya Guberman, Partner

KK TAKEAWAY: Trial Court’s Dismissal of a Commercial Eviction following a Preliminary Evidentiary Hearing on Court Registry Payments was Improper.

BACKGROUND: Commercial evictions in Florida are heavily governed by statute. One such statute mandates that if a tenant fails to comply with a court order to pay rents due in the court registry during the pendency of the eviction action, any defenses to the eviction are deemed waived. As such, untimely payment of court ordered rents due into the court registry usually quickly ends litigation, as the landlord is entitled to immediate possession. However, where the process of court ordered rental payments into the court registry usually assists a landlord is short stopping the litigation, a recent appellate decision revealed a trial court improperly used the process to dismiss an eviction altogether. In Hallandale Plaza, LLC v. New Tropical Car Wash, LLC, the tenant moved for a preliminary motion to determine rent, which sought order setting forth the amounts to be tendered to the court registry during the litigation, if any. Here, the parties agreed the tenant was current on base rent. Rather, the eviction for non-payment arose from a provision in the lease which required the tenant to pay “additional rent,” or proportional amounts in addition to base rent, including property taxes. At the hearing on the

10 | IN THE

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preliminary motion to determine rent, the tenant argued that it was current on all rental payments because it had reached an oral lease modification agreement with the prior landlord wherein tenant would only be responsible to pay base rent. At the conclusion of the hearing, the trial court dismissed the eviction action finding the tenant was not required to pay any additional rents. The landlord appealed arguing, in part, that it was deprived of due process when its eviction action was dismissed following a preliminary hearing to determine what amount should be paid into the court registry. On appeal, the appellate court agreed with the landlord and reversed the trial court’s dismissal of the eviction action, holding the purpose of the motion to determine rent was to make a preliminary determination as to whether additional rent was due, amongst other findings. While the preliminary hearing was evidentiary, it was not a final hearing and as such, the dismissal was improper. The appellate court remanded the case back to the trial court for further proceedings.

2nd DCA Decides Timeline For Surplus Funds By: Marc Marra, Partner

KK TAKEAWAY: Pursuant to section Fla. Stat. §45.032(3), the filing of the certificate of disbursements is the controlling event which triggers the running of the sixty-day period during which a claimant must file a claim for disbursement of surplus proceeds.

BACKGROUND: By way of background, a foreclosure Plaintiff holding a first mortgage (“First Mortgagee”) filed a foreclosure action which proceeded to judgment and sale, whereby the subject property sold to a junior lienholder at foreclosure sale (the “Purchaser”). See Refaie v. Bayview Loan Servicing, LLC, 331 So. 3d 749, 750 (Fla. 2d DCA 2021).

The certificate of title issued to the Purchaser on March 21, 2016, contained the wrong property address and wrong legal description. A certificate of disbursements was issued by the Clerk on March 25, 2016, and docketed on April 4, 2016, reflecting surplus funds in the amount of $66,161.00. The Purchaser filed a Motion for Corrected Certificate of Title on April 19, 2016, and on May 25, 2016, the trial court issued a corrected certificate of title bearing the proper legal description for the subject property. Subsequently, on June 20, 2016, the Purchaser filed a motion to direct the clerk to disburse the $66,161.00, plus interest, in surplus proceeds from the foreclosure sale, which the trial court granted. Id. at 750. The borrower argued on appeal that the Purchaser’s claim for surplus funds was untimely, as it was filed more than sixty days after the certificate of disbursements was issued, contrary to Fla. Stat. §45.032(3)(a). In contrast, the Purchaser argued that the certificate of title originally issued was defective due to the improper legal description, and Purchaser’s claim for surplus was timely made within sixty days after issuance of the corrected certificate of title.

landlords, as well as other creditors and parties-in-interest have a powerful weapon in their arsenal – a motion to dismiss or for stay relief based on the bankruptcy having been filed in bad faith.

BACKGROUND: Bankruptcy can help the honest but unfortunate debtor. However, there are unscrupulous debtors use the bankruptcy process in bad faith, which can occur in a myriad of ways. Other parties can get caught up in these unscrupulous bankruptcies when pursuing foreclosures, eviction proceedings, enforcement proceedings, and other litigation inappropriately delayed, or where the bankruptcy is used solely as a litigation tactic to get a leg up. The Bankruptcy Code and case law interpreting it provides powerful tool in combatting “bad faith” bankruptcies. Where a bankruptcy has been filed in bad faith, a court may dismiss the bankruptcy, grant stay relief to permit the secured creditor to finalize its foreclosure or to permit creditors and other parties to conclude their litigation, or it may deny confirmation of a proposed bankruptcy plan. It may also be argued that a bankruptcy court also has broad authority to provide relief where a debtor inappropriately files a suggestion of bankruptcy in non-bankruptcy court litigation involving a matter not stayed by the bankruptcy, for example, by using its inherent power to sanction the debtor or its bankruptcy attorney.

Combatting “Bad Faith” Bankruptcy Filings

NOW

to dismissal under 11 U.S.C.A. § 1112 if “not filed in good faith.” In re Phoenix Piccadilly, Ltd., 849

By: James D. Silver, Partner

F.2d 1393, 1394 (11th Cir. 1988). This good faith

KK TAKEAWAY:

prevent abuse of the Chapter 11 process. Matter

A “bad faith” bankruptcy filing can be a powerful weapon in the hands of an unscrupulous debtor. However, mortgagees, 12 | IN THE

A voluntarily filed chapter 11 petition is subject

requirement is rooted in equity and intended to of Little Creek Dev. Co., 779 F.2d 1068 (5th Cir. 1986). “A good faith standard protects the jurisdictional integrity of the bankruptcy courts IN THE

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by rendering their equitable weapons...available

factors that evidence that the petition was filed

only to those Debtors and creditors with ‘clean

“to delay or frustrate the legitimate efforts of

hands.’” Id.

Bankruptcy courts may likewise

secured creditors to enforce their rights.” See

dismiss bankruptcies filed under other chapters

Phoenix Piccadilly, Ltd. V. Life Ins. Co. of Virginia

of the Bankruptcy Code where the bankruptcy

(In re Phoenix Piccadilly, Ltd.), 849 F.2d 1393, 1394

process is being abused and the petition has been

(11th Cir. 1988) (affirming dismissal of chapter 11

filed in bad faith. See, e.g., In re Alt, 305 F.3d 413,

case filed by owner of apartment complex that

418 (6th Cir. 2002) (bankruptcy court may dismiss

was subject to foreclosure action filed by secured

Chapter 13 bankruptcy filed in bad faith); In re Buis,

creditors prior to bankruptcy filing).

337 B.R. 243, 250 (Bankr. N.D. Fla. 2006) (same);

State St. Houses, Inc. v. New York State Urban

In re Piazza, 719 F.2d 1253 (11th Cir. 2013) (“[T]he

Dev. Corp. (In re State St. Houses, Inc.), 356 F.3d

power to dismiss ‘for cause’ in §707(a) includes

1345, 1346-47 (11th Cir. 2004) (same).

the power to involuntarily dismiss a Chapter 7 case based on prepetition bad faith.”).

See also

Courts have also recognized as indicia of bad faith, lack of financial distress of the debtor, few

The filing of a bankruptcy in bad faith also

non-insider unsecured creditors, use of Chapter

constitutes “cause” pursuant to 11 U.S.C.A. §

11 to resolve pre-petition two-party disputes in

362(d)(1) to terminate or lift the stay to permit

state court and timing of a petition that evidences

a party to conclude litigation or the exercise of

its primary use as a litigation tactic. See In re

remedies in a non-bankruptcy court. In re Phoenix

Serfass, 325 B.R. 901, 905–06 (Bankr. M.D. Fla.

Piccadilly, Ltd., 849 F.2d 1393, 1394. The same

2005), In re Moog, 159 B.R. 357, 361 (Bankr. S.D.

standard of bad faith that is applied to determine

Fla. 1993); In re Punta Gorda Associates, 143

whether a case should be dismissed under U.S.C.

B.R. 281, 283–84 (Bankr. M.D. Fla. 1992); In re On

§ 1112(b) may also be used to determine whether

the Ocean, Inc., 16-16204-BKC-RBR, 2016 WL

there is cause to lift the stay. Id. However, a finding

8539791, at *2 (Bankr. S.D. Fla. June 6, 2016).

that the factors are insufficient for purposes of dismissal does not mean that they are insufficient for purposes of stay relief. In re Dixie Broad., Inc., 871 F.2d 1023, 1029 (11th Cir. 1989). “If that were true, there would not be a need to ever lift a stay for bad faith, because the petition would necessarily have to be dismissed.” Id. Rather, a bankruptcy judge may take into consideration the number of factors and their certainty in determining whether they constitute bad faith for purposes of stay relief or dismissal. Id.

The courts do not generally condone the use of Chapter 11 to resolve two-party disputes in the bankruptcy court when such litigation is still pending in a non-bankruptcy forum prior to the commencement of the case. In re Serfass, 325 B.R. at 905–06. Chapter 11 was never intended to be used as a fist in a two-party bout. In re Moog, 159 B.R. at 362 citing In re HBA E., Inc., 87 B.R. 248, 260 (Bankr. E.D.N.Y. 1988). One court has found that a bankruptcy case should be dismissed when it “involves nothing more than a two-party

Although there is no specific test for determining

dispute.” Matter of Indian Rocks Landscaping of

whether a debtor has filed a petition in bad faith,

Indian Rocks Beach, Inc., 77 B.R. 909, 911 (Bankr.

courts consider factors that evidence “intent to

M.D. Fla. 1987).

abuse the judicial process and the purposes of the reorganization provisions” or, in particular,

14 | IN THE

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legitimate scope of the bankruptcy laws.” In

Ocean, Inc., 2016 WL 8539791, at *2. Chapter 11

re SGL Carbon Corp., 200 F.3d at 165.

The

relief should not be made available to an entity

Bankruptcy provisions are intended to benefit

solely to get an upper hand in litigation against

those in genuine financial distress, not to be

another party, nor solely to provide an alternate

used as a mechanism to orchestrate pending

forum for a debtor. Matter of Nw. Place, Ltd., 73

litigation. Id. Eviction cases are no exception to

B.R. 978, 982 (Bankr. N.D. Ga. 1987).

this rule. “Courts have routinely found bad faith and dismissed cases in circumstances where

Filing a Chapter 11 petition merely to obtain a

debtors have filed to purposely delay a creditor’s

tactical litigation advantage is not within “the

inevitable recovery of its property.” In re On the

The timing of a Chapter 11 petition can evidence it was filed to obtain a tactical litigation advantage. For example, in In re Miracle Church of God in

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Christ, 119 B.R. 308, 310 (Bankr. M.D. Fla. 1990),

by the debtor’s attempt to “resuscitate” a validly

the court inferred bad faith where Debtor’s

terminated lease through a bad faith bankruptcy

bankruptcy petition was filed shortly before a

petition. Id. at 279.

scheduled foreclosure sale.

11 U.S.C. §362(d)(4) “permits the bankruptcy

A bankruptcy filing may also be in “bad faith” where

court to grant so called ‘in rem’ relief from

it is done for the purposes of second guessing

the automatic stay to the creditor to address

the rulings of a state court. As recognized by one

schemes using bankruptcy to thwart legitimate

bankruptcy court, “debtors are not entitled to

foreclosure efforts foreclosure efforts through

have the Bankruptcy Court hear their complaints

one or more transfer of interest in real property or

merely because they are disgruntled with the

… multiple bankruptcy filing affecting the subject

process in State Court.” In re Muskogee Envtl.

in rem property.” Rodriguez v. Murphy, 2014 WL

Conservation Co., 236 B.R. 57, 66–67 (Bankr. N.D.

1414424, ** 3-4 (S.D. Fla. Apr. 11, 2014).

Okla. 1999).

MEET THE

CONTRIBUTORS

Unfortunately, “bad faith” bankruptcy filing can be

Courts have also found bad faith where debtors

a powerful weapon in the hands of an unscrupulous

filed bankruptcy petitions solely to delay a

debtor. However, mortgagees, landlords, as well

landlord’s recovery of real property. In re Premier

as other creditors and parties-in-interest have a

Auto. Services, Inc., 492 F.3d 274 (4th Cir.

powerful weapon in their arsenal – a motion to

2007). For example, in In re Premier Automotive

dismiss or for stay relief based on the bankruptcy

Services, Inc., the court was particularly offended

having been filed in bad faith.

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

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

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 16 | IN THE

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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. IN THE

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MEET THE CONTRIBUTORS

Jacqueline Costoya Guberman

appellate level. She has successfully argued before the

Partner

handling much of the Real Property Litigation practice

Email Jacqueline Costoya Guberman

Jacqueline Costoya Guberman is a Partner at Kelley Kronenberg, focusing her practice on real estate matters with particular emphasis on real property litigation, residential and commercial real estate transactions, and appellate litigation. As an agent for Old Republic National Title Insurance Company, Jacqueline assists in the acquisition, financing, and development of real estate including commercial and residential projects. Jacqueline also has extensive experience involving the representation of businesses, lenders, and loan servicers at both the trial court and

Florida Second, Third, and Fifth District Courts of Appeal,

R. Elliott Halsey Partner Email R. Elliott Halsey

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

group’s appellate litigation.

Estate closings, Landlord-Tenant, Collections, Small

In 2009, Jacqueline earned a Bachelor of Arts degree

Claims, and Arbitration. Throughout his extensive

from the University of Florida. She went on to earn a Juris

career, he has experience handling matters related to lien litigation, property tax litigation, evictions,

Doctorate from the University of Miami School of Law

Elliott Halsey is an Attorney at Kelley Kronenberg

where she graduated cum laude, served on the executive

focusing his practice on mortgage foreclosure

board of the Charles C. Papy Moot Court Board, and

litigation and assisting banks and other financial

received a Dean’s Certificate in Client Communications.

service providers with regulatory, enforcement,

Elliott earned his Bachelor of Arts from Wittenberg

Jacqueline is currently serving her second year as Co-

transactional and litigation matters.

University and a Master of Science from Miami

Chair for the Junior League of Greater Fort Lauderdale’s

Elliott has 18 years of legal experience in Bankruptcy,

Riverwalk Run benefitting the League’s many charitable

Real Estate, Foreclosure, and General Civil Practice

family law, commercial property and Intellectual Property.

of Ohio University. He then went to earn his Juris Doctor the Ohio Northern College of Law.

initiatives and has been appointed to the Florida Bar’s Media and Communications Law Committee effective July 1, 2017.

Jason D. Silver Attorney Email Jason D. Silver

having presided as the Deputy Municipal Attorney for the Village of El Portal, Florida. Jason received his Bachelor of Science in Public

Marc A. Marra

also represents Condominium Associations and HOAs

Relations with a minor in History from the University

Partner

throughout South Florida as general counsel.

of Florida where he was elected to the Florida Blue

Email Marc A. Marra

Marc is the founder of Heart Warriors, Inc., a non-profit

Jason Silver is an Attorney at Kelley Kronenberg

Key Honor Society and awarded the Honorable

corporation which supports children with Hypoplastic

where he assists in handling matters related to

Mention for the Outstanding Leadership and

Left Heart Syndrome (HLHS) and other congenital heart

Mortgage Foreclosure Litigation and assisting banks

Service Award.

diseases, and their families. This cause is very close to him

and other financial service providers with regulatory,

He then went on to earn his Juris Doctor degree from

Marc Marra is a Partner at Kelley Kronenberg focusing

as his daughter, Charlotte, has HLHS, and has undergone

enforcement, transactional and litigations.

St. Thomas University School of Law. While in law

on the Firm’s Real Estate Practice. With over ten years

multiple major open-heart surgeries.

Jason has close to a decade of experience in

school, Jason received a Book Award in Appellate

of experience, his practice focuses on assisting banks,

Marc

his

contested foreclosure litigation, guiding creditors

Advocacy. Jason also worked as a legal intern for

lenders, mortgagees, and financial service providers

clients 24/7 and on his ability to assist with issues

from the beginning to completion of a court action.

the Office of the City Attorney at the City of Miami

with enforcing their rights in security instruments on

stemming from any dispute related to real estate

real property. He protects, enforces, and litigates his

– title, general real estate litigation, bankruptcy,

clients’ rights in security instruments on real estate. He

sale, etc.

prides

himself

being

available

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

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.

finance. He also practiced bankruptcy and general

Jason is an avid runner and successfully completed

litigation as well as municipal and government law,

the ING Miami Half Marathon and 13.1 races in 2011 and the Hollywood Beach Half Marathon in 2020.

18 | IN THE

NOW

IN THE

NOW |

MEET THE CONTRIBUTORS

Gary Sonnenfeld

banks and service providers as well as blockchain

Attorney

and technological influences on real estate laws.

Email Gary Sonnenfeld

James D. Silver Partner Email Jason D. Silver

Gary received his Bachelor of Arts in Religion and University where he was awarded a University

party avoiding payment by going into bankruptcy,

Scholarship. He then went on to earn his Juris Doctor

James can help you. Bankruptcy can also creep James Silver is a Partner with 40 years practicing law

focusing his practice on Mortgage Foreclosure

and graduated with a Dean’s Certificate for honors.

at the highest level, gaining unique experience and

Litigation and assisting banks and other financial

Gary continued his pursuit of higher education by

beneficial insights along the way. Most memorably,

service providers with regulatory, enforcement,

obtaining a Bachelor of Science degree, cum laude,

his successful bankruptcy representation of multiple

transactional and litigations. Gary has extensive

in Computer Science from Florida International

groups of victims of the Rothstein Ponzi scheme,

experience in contested foreclosure on behalf of

University.

were he established invaluable relationships within the bankruptcy and business litigation arenas while bearing witness to one of the largest Ponzi schemes in Florida history and advocating for the members

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

are considering filing for bankruptcy, personally or on behalf of your business, or if you are pursuing a

degree from Georgetown University Law Center

Attorney

is on our minds more than we care to admit. If you

International Relations with honors from Boston

Gary Sonnenfeld is an Attorney at Kelley Kronenberg

Irina Danilyan

With the current economic pressures, bankruptcy

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.

of our community whose combined losses reached nearly $250 million.

into existing or prospective litigation in any legal arena, complicating the issues; in these cases, having qualified bankruptcy counsel is a necessity. For example, if you are the plaintiff in a pending suit and the defendant files for bankruptcy, threatening your ability to recover, or if you are the one who is filing for bankruptcy and your concern is how it may impact your position in litigation or for a prospective settlement, James can help you. Whether you have been sued by a bankruptcy trustee for fraudulent transfer, your issue is one of bad faith, or you want to explore your options, James is here to answer

Assisting companies and individuals in bankruptcies

your questions. And, if you need someone who

and insolvency related matters is one aspect of

is experienced and understanding to help you

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.

James’ practice. His focus also includes creditor’s

understand the bankruptcy maze with all its issues,

rights, commercial litigation, and SEC and other

risks, and implications and to guide you with sound

receivership matters. Having served as a receiver

strategy to protect your position and preserve or

for the U.S. Securities Exchange Commission

maximize your potential recovery, James is ready

(SEC) and counsel for parties impacted by SEC

to be your lawyer and your partner through all your

related receivership, both as a creditor or a party

bankruptcy and commercial litigation needs.

Irina is fluent in Russian.

a complete understanding of every aspect of the

facing claims brought by the receiver, James has receivership process and use his experience to provide the most comprehensive representation possible.

James is recognized by Super Lawyers magazine 2022 as a “Rising Stars” in Florida for Bankruptcy. He is also recognized by The Best Lawyers in America 2022 for Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, and Commercial Litigation.

IN THE

NOW |

HELPING YOU

STAY AHEAD

BLOG Navigating Eviction Moratoriums—Caution to Landlords and Investors In March of 2020, it became clear among the masses (both private and public) that Covid-19 would be an undeniable hindrance to our ability to resume “normal” life as we know it (whatever “normal” means to each of us individually). Schools, businesses, parks, restaurants, etc. all began closing their doors both voluntarily and involuntarily based on local, state and Federal regulations demanding the same. Not surprisingly, certain sectors of the economy that require in-person contact or activities with close proximity to each other almost immediately began feeling the wrath of the economic outfalls from the pandemic. Many local and state regulations curbed or even. […] CLICK TO READ MORE

22 | IN THE

NOW

IN THE

NOW |

AWARDS AND

ACCOLADES FIRM AWARDS

REAL ESTATE ATTORNEY 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:

South Florida Business and Wealth: Real Estate Awards Jason M. Vanslette

Best Lawyers in America: Ones to Watch Marc A. Marra Jason D. Silver

South Florida Legal Guide “Top Lawyers” Martindale Hubbell AV Preeminent Rating 2021

Fastest-Growing Private Companies in America