Author: Michael Mayer,Senior Associate Attorney, PeytonBolin, PL.
We announced back in June a big win for one of our clients, Alden Hotel Condominium Owners Association against Fannie Mae. A notice of appeal was filed shortly thereafter and you may be wondering what is going on?
We thought we would use this case as an example to explain how the appeal process works. We are going to do our best to keep this simple and not use a lot of legal jargon, but some terms cannot be avoided.
After the appeal was filed by Fannie Mae (the appellant), they have to file their initial appellate brief explaining why they believe the judgment was not correct. In this particular case, they are claiming that they were the first mortgagee on the unit in question and therefore, entitled to Safe Harbor.
At the trial level, the trial judge found that Fannie Mae did not prove that it was the first mortgagee and therefore, the Association was entitled to collect on everything owed by that unit.
Fannie Mae filed an appeal and submitted its appellate brief. We now have the opportunity to respond to their brief. This response is called an answer brief. This includes going through Fannie Mae’s brief and the transcripts in detail and responding to each of Fannie Mae’s arguments and why it is wrong. This is where we are in the process today.
After we file our answer brief, the next step in the process is that Fannie Mae can reply to our answer brief. Once Fannie Mae submits its reply brief to our answer brief, a hearing is set where the judge will hear oral arguments.
We argue the case and the last step is that the judge rules.
This process can, and usually does, take over one year. Based on the timing thus far, we believe that oral arguments will be set sometime around May 2014.
A popular misconception about the appeal process is that the case is being retried. It is not. The only thing being looked at in the appeal process is whether the trial judge accurately applied the law to the facts presented. It has nothing to do with truthfulness or credibility. It is just looking at the facts and determining if they match up to the law.
To summarize, here are the steps to the appeal process:
- File an Appeal – Appellant (Fannie Mae)
- File the Appellate Brief – Appellant (Fannie Mae)
- File the Answer Brief – Appellee (Us)
- Reply to Answer Brief- Appellant (Fannie Mae)
- Hearing set for Oral Arguments (Court of Appeal)
- Argue it (Both parties)
- Court comes out with their opinion
In between steps is a matter of months, not days. This continues to be an important case for Florida Association Law so stay tuned. If you have any additional questions about the appeal process or association law, please contact us.
In recognition of PeytonBolin’s philanthropy and charitable endeavors, we have been nominated and selected to receive the “Heroes Among Us” Award from the Florida Panthers Foundation! The Panthers Foundation is a non-profit organization started in 2003 whose mission is to build a better future for the children of South Florida. The Foundation maintains a focus on children’s health, fitness, education, and cultural needs.
“We are honored to be recognized for all of our community service projects by this important community organization. We look forward to graciously accepting this award in support for our firm’s charitable efforts,” said Jane Bolin, Founding Partner for PeytonBolin, PL.
The celebration and “Heroes Among Us” award presentation by Florida Panthers Foundation will be during the Florida Panthers vs. Chicago Blackhawks hockey game on Tuesday, October 22, 2013, starting at 7:30 p.m. at the BB&T Center.
Broward County Commissioners passed a new ordinance on September 10, 2013 requiring condo, homeowner and cooperative associations to tell applicants in writing the reason they’re being denied the ability to rent or buy a home. Commissioners who favored the ordinance said they have receive quite a few complaints from potential buyers claiming they have been denied housing arbitrarily, fail to alert applicants of incomplete submissions or just outright racial discrimination.
The ordinance passed on a 6-1 vote, with Commissioner Tim Ryan voting no and Commissioner Chip LaMarca not present for the vote. For more information, click here.
New state laws for HOAs – The deadline for registering is November 22, 2013.
By mid November, all homeowners associations are required to register with the Department of Business and Professional Registration. In addition, there is a new requirement for directors and officers to carry Fidelity insurance.
These rules are similar to ones that already exist for condos and are now starting to apply to homeowners associations.
Here is an overview:
- All HOAs must register by November 22, 2013 to the Department of Business and Professional Regulation.
- Registration begins online on October 1, 2013. Here is the website where Associations can register. http://www.myfloridalicense.com/dbpr/hoa.html
- The Association’s legal name, federal employer identification number, mailing and physical addresses, the total number of parcels, and the total amount of revenues and expenses from the Association’s annual budget is information that will be included online.
- Records must be maintained for 7 years, within 45 miles of the community, or within the same county; and allowing that they be recorded electronically. Copy costs are reduced to 0.25 per page and personnel costs for requests that exceed ½ hour or more than 25 pages are $20 per hour.
- New board members must certify that they have read the governing documents and must uphold them to the best of their ability within 90 days of election or appointment.
- Associations must obtain a Fidelity Bond/Crime and Fidelity Insurance, but there is no minimum coverage amount. It can also be waived by a majority vote at an annual or special meeting of the members.
- In order for a contract to be approved with board members, a 2/3rds vote must exist and it must be found fair and reasonable. Once approved, the board must disclose the contract at the next member meeting and any member can make a motion to cancel. If it is canceled by a majority vote, the contract is void.
- Officers, directors, and property managers are prevented from receiving any goods or services without payment except for meals, not to exceed $25, as part of a business meeting or items at trade fairs or education programs. If this is violated, it can mean immediate expulsion from their respective position.
- If any director or officer is charged with a theft of Association funds, he/she must be immediately removed from office. If the charges are later dropped against this person or if they are acquitted, they must be reinstated to office.
If you have any questions about these or any other changes in Florida regulations or the Broward County ordinance, contact the PeytonBolin team today and we will be happy to assist you. When it comes to updates for Florida Homeowner Associations, we are your resource. Call us at (954) 316-1339 or email us.
The Fourth District Court of Appeals Rules Against Third-Party Purchaser
Florida-based law firm, PeytonBolin, has celebrated another successful win for associations regarding foreclosures. On August 28, 2013, the Fourth District Court of Appeals, which presides over Broward, Palm Beach, Martin, St. Lucie and Okeechobee Counties, ruled in favor of Sienna Ridge Homeowners’ Association, Inc. stating that a third party bidder cannot try to reduce its liability for unpaid assessments by a motion to enforce final judgment in a bank foreclosure action.
The underlying case was a bank foreclosure action in which the plaintiff obtained a final judgment in foreclosure, and a third party bidder obtained title to the property at the bank foreclosure sale. The third party buyer then tried to avoid liability for past due assessments by filing a “Motion to Enforce Final Judgment.” The trial judge entered an order in favor of the third party purchaser reducing its liability for past due assessments.
PeytonBolin appealed the Broward County Circuit Court decision on behalf of Sienna Ridge Homeowners’ Association. The Court of Appeal agreed with the position that the third party purchaser had no rights under the bank’s final judgment and could not file a motion to enforce final judgment.
“We are thrilled that we were able to argue this case on behalf of our client and receive a favorable outcome. The credit really goes to the board and residents of Sienna Ridge Homeowners’ Association for the time they spent on this issue and their willingness to take legal action. We hope this sends a message to other associations to fight for what they are entitled to,” said Mauri Peyton, founding partner of PeytongBolin and lead counsel on the case.
The Sienna Ridge case is one of many recent achievements for PeytonBolin representing homeowners associations. In June, the firm won a case for Alden Hotel Condominiums in Miami-Dade against Fannie Mae. That case is currently under appeal and being closely watched by many because of the important impact the outcome will have on association law. To view a copy of the judgment click here
PeytonBolin, PL is a Florida-based law firm headquartered in Fort Lauderdale with offices in Tampa, New York City and Jersey City. PeytonBolin is focused on the practice of Community Association Law, providing legal services to associations and individual owners. Partnering with condominium and homeowner associations throughout Florida, PeytonBolin PL provides collections services, covenant enforcement, and guidance to boards to successfully manage their community affairs. Representation for both associations and individuals encompasses the key areas of insurance, construction, contract disputes and debt collection. At PeytonBolin, we are committed to practicing law in a way that is refreshingly unique – always accessible and never pretentious. Obtaining our clients’ objectives in the most strategic, creative and economically efficient way possible is our highest priority.
We are so proud of Nate Handley for all the work he does in the community. He was recently recognized by the Sun-Sentinel (http://www NULL.sun-sentinel NULL.com/community/custom/society/broward/sfl-volunteer-profile-nate-d-handley-20130910,0,5355877 NULL.story) with a volunteer profile. We’ve included a recap here. Congrats Nate!
Managing paralegal and client communications director of a Fort Lauderdale real estate law firm, Nate D. Handley, 33, completed the 30-hour training to be a Guardian ad Litem in 2010.
Guardian ad Litems are trained volunteers appointed by the court to protect the rights and advocate for the best interests of children who have been abused or neglected.
When Handley receives a case, he reviews the basic details and visits the child’s current guardians to educate them on the Guardian ad Litem program and what his role will be. Handley then introduces himself to the child/children to create a bond and establish trust. “I’m there as a friend, as an advocate. I ask if there is anything they want the judge to know or anything they need.” He documents their progress by meeting with their teachers and other adults involved in their life.
After 90 days, a court decision is made – sometimes this is re-unifying them with their parents, but sometimes parental termination is recommended.
In addition to Handley’s presence in the courtroom, he actively advocates for Voices for Children of Broward County program, the nonprofit fundraising arm of the Guardian Ad Litem. Leading a community outreach committee, he attends events to educate the public about the program’s significance and its need for donors.“Usually going to court is very stressful. But one of the happiest days is adoption day because we’ve worked so hard on getting these kids their forever family,” he said. In one case involving a 4-year-old boy and 2-year-old girl, Handley walked into the courtroom and the kids screamed his name, running toward him almost knocking him over with their excitement. Knowing he played a small part in the kids possibly having a better future is the reinforcement for all his hard work. “There’s no better feeling than that.”
Nate also traveled to Tallahassee to speak with legislators about implementing the “Normalcy Bill” (SB164), to give foster parents rights to make decisions (like taking the child for a haircut) without having to get a court order.
“Volunteering has given me a completely different perspective on life and I can take that into every case. It’s taught me that even when things are tough, you can do whatever you set your mind to do.”