“Delinquent borrowers facing foreclosure are learning that they can stay in their homes for years, as long as they’re willing to put up a fight.
Among the tactics: Challenging the bank’s actions, waiting to file paperwork right up until the deadline, requesting the lender dig up original paperwork or, in some extreme cases, declaring bankruptcy.”
The documents governing homeowners’ and condominium associations usually give the associations the right to foreclose on an individual’s property if the homeowner fails to pay the association dues. Additionally, Florida Statutes § 718 (condominium associations) and § 720 (homeowners’ associations) provide that these associations may foreclose for a homeowner’s failure to pay required dues. In order to start the foreclosure process, the association simply directs its attorney to file a claim of lien against the property. Then, the association may bring an action to foreclose on the lien. According to Fla. Stat. § 718 and § 720, payment of a late fee is not automatically applied to the late assessment. Payment is applied in the following order: (1) interest accrued on unpaid assessment, (2) administrative late fees, (3) costs and reasonable attorneys’ fees incurred in collection of the late payment, and (4) to the delinquent assessment. As a side note, both § 718 and § 720 state that a lien becomes invalid after one year if the association fails to bring an action to enforce the lien within that time period. Fla. Stat. § 720 provides that if a homeowners’ association fails to enforce a lien within 90 days after the homeowner files a contest of lien, the lien is void. Moreover, a lien cannot be recorded until the HOA provides a written demand, sent via certified mail with return receipt requested or by first class mail, to the homeowner for past due assessments and other fees. After receipt of the written demand, the homeowner has 45 days to pay the late assessment in full. If a homeowner files a contest of lien, the notice requirement described above will be automatically satisfied.
The Florida legislature has enacted changes to the Durable Power of Attorney (DPOA) Statute, which will take effect on October 1, 2011. However, all DPOAs created before October 1, 2011 will remain valid under Florida law.
Beginning October 1st, the state of Florida will no longer consider a springing DPOA to be valid. A springing DPOA is a one that takes effect on some date after the execution of the document. For example, many DPOAs do not grant the designated agent any power or authority until the principal is deemed to be incapacitated and unable to act on their own behalf. Conversely, a non-springing DPOA, the only valid type once the new law takes effect, is effective at the time the document is executed. While springing DPOAs attempt to prevent misuse of the agent’s authority, many banks and other financial institutions are more likely to accept a non-springing DPOA because it creates less liability for the institution. Also, it may be difficult for the agent to obtain an affidavit from the principle’s primary physician deeming the principle “incapacitated.”
Other changes in the DPOA Statute involve more restrictive signature requirements. Rather than creating a DPOA that grants general powers to an agent, the principal will be required to initial next to each specific authority granted to the agent in order for the agent to validly exercise said authority. The changes also specify mandatory and default duties imposed on the named agent.
DPOAs executed in a state other than Florida will be deemed valid by the state of Florida if the DPOA complied with the law of the state in which it was executed at the time of execution.
