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In the aftermath of the real estate mortgage foreclosure crisis in Florida since 2008, various issues have been presented to the court in Florida regarding the enforceability of mortgages, including statute of limitations arguments.

Statute of Limitations CasesForeclosure on Subsequent Default Not BarredDiaz v. Deutsche Bank National Trust Co., et al., 2014 WL 4351411 (S.D. Fla., Sept. 2, 2014). In this case, the lender's foreclosure actions had previously been dismissed three times - even once with prejudice.  The homeowner sought a declaratory order that the note and mortgage were no longer enforceable based on the application the five year statute of limitations. The Court held that even if a foreclosure action is unsuccessful for "whatever reason", the mortgagee "still has the right to file later foreclosure actions-and to seek acceleration of the entire debt-so long as they are based on separate defaults." The Court noted that it consistently holds that complaints that raise this claim are without merit. See Espinoza v. Countrywide Home Loans Servicing, L.P., 2014 WL 3845798 (S.D. Fla. Aug. 5, 2014), Matos v. Bank of America, 2014 WL 3734578 (S.D. Fla. July 28, 2014), Romero v. SunTrust Mortg., Inc., 2014 WL 1623703 (S.D. Fla. Apr.22, 2014). 

Smathers v. Nationstar Mortgage, LLC, 2014 WL 4639136 (M.D.Fla. Sept. 16, 2014) is another case where a foreclosure action had previously been dismissed. Here also, did the homeowner contend that the lender was barred from enforcing the note and mortgage due to Florida's five-year statute of limitations . The homeowner alleged that the note and mortgage were null and void and a cloud on his title to the property.  In accordance with other decisions, the Court dismissed the homeowner's complaint, holding that while the lender may not be able to pursue a action on the default that formed the basis of the first foreclosure action, "an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue. See also, Torres v. Countrywide Home Loans, Inc., 2014 WL 3742141 (S.D. Fla. July 28, 2014), Kaan v. Wells Fargo Bank, N.A., 981 F.Supp. 2d 1271 (S.D. Fla. 2013).

 Quiet Title Actions Missing "N.A." = Absurd ArgumentIn the case of Unrue v. Wells Fargo Bank, N.A. 2014 WL 4648628 (5th DCA September 19, 2014) (subject to revision or withdrawal), the homeowner argued that the mortgage was not enforceable due to the mortgage listing the lender as "Wells Fargo" instead of "Wells Fargo, N.A."  The Court used the word "absurd" twice. The Court of Appeals remanded the case to allow the homeowner one opportunity to file an amended pleadings pursuant to Rule 1.190(a), but warned that the last time this argument came before the Court in a similar circumstance, the trial court's dismissal was upheld, referring to the homeowner's complaint as an "absurd demand" and attorneys fees were assessed.
See. Badgley v. SunTrust Mortg., 134 So.3d 559 (5th DCA 2014). The dissent, would not have even allowed an amended pleading, deeming the homeowner's case an "affront to the court" and "frivoulous." Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055

The recent Middle District of Florida decision in In re Nabavi, 2014 WL 3939595 (M.D. Florida, August 12, 2014) made reference to the 11th Circuit Court of Appeal’s longtime adoption of the "civil plain error rule" - an exception to the general rule that an appellate court will not consider an issue not raised in the lower court.  In the In re Nabavi  appeal to the District Court from the Bankruptcy Court, the creditor raised arguments which it had failed to before the Bankruptcy Court. The District Court held that the creditor thereby waived its right to bring the arguments on appeal as the “civil plain error rule” exception did not apply.Preservation of ErrorThe U.S Supreme Court held in Hormel v. Helvering, 312 U.S. 552 (1941) that “[o]rdinarily an appellate court does not give consideration to issues not raised below.”  Justice Black explained that [O]ur procedure scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of facts. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had not opportunity to introduce evidence.According, the 11th Circuit held in Narey v. Dean that "appellate courts generally will not consider an issue or theory that was not raised in the district court."  Civil Plain Error ExceptionBut the Supreme Court in Hormel held that its general principle is not unyielding and “[t]here may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Justice Black added that Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice11th Circuit In view of the Hormel decision, the 11th Circuit reviewed in the case of In Re Lett, 632 F. 3d 1216 (11th Cir. 2011)  that the 11th Circuit adopted the “civil plain error rule,” which permits consideration of a pure question of law not raised below, if the failure to consider that issue on appeal would result in a "miscarriage of justice."  The In Re Lett Court cited prior 11th Circuit decisions which explained  that a “miscarriage of justice” is a decision or outcome of a legal proceeding that is prejudicial or inconsistent with the substantial rights of a party. Another prior 11th Circuit case explained that “[a]ny wrong result resting on the erroneous application of legal principles is a miscarriage of justice in some degree.”
Bankruptcy ContextThe In re Lett Court explained that the “civil plain error rule” is particularly true in the bankruptcy context. The Court stated that “[o]rdinarily an appellate court does not give consideration to issues not raised below” because “bankruptcy cases are to be tried in front of bankruptcy court.”  The Court cited a prior decision that related that it is within the court’s discretion to resolve an issue decided in the bankruptcy court “if the record thoroughly presents the issue”  but “if the record reflects an issue that was presented in a cursory manner and never properly presented to the Bankruptcy Court, the issue is not preserved for appeal.” This decision further explained that “it is not enough that the record provides facts which may permit the resolution of an issue; rather the record must be adequately developed, to the point that the Bankruptcy Court could have passed on the issue …”
The recent case of In re Biscayne Park, LLC,  540 Fed. Appx. 952 (11th Cir. 2013) cites In re Lett and further explained that where a party does not raise an issue below, the Court will evaluate it under the "plain error rule", which allows consideration of an issue not raised in the lower courts under five circumstances:

1. it involves a pure question of law and if refusal to consider it would result in a clear miscarriage of justice
2. where the appellant raises an objection to an order which he had no opportunity to raise at the lower court level
3. where the interest of substantial justice is at stake
4. where the proper resolution is beyond doubt
5. if the issue presents significant questions of general impact or of great public concern

Certain Bankruptcy Code Provisions Never Waived?The author of a 2011 post on Weil Gotshal's "Bankruptcy Blog", wrote that the In re Lett decision suggested that certain provisions of the Bankruptcy Code may never be waived, such as in the context of a chapter 11 confirmation order, even if the party could have raised - but did not raise the argument before the bankruptcy court.  The blog post points out that the In re Lett Court "ultimately concluded that the district court had actually erred in relying on the civil plain error rule in declining to address whether the plain complied with the absolute priority rule."   The author relates that 11th Circuit in In re Leff concluded that the confirmation related issue had been preserved for appeal because the requirement of section 1129(b) had "sufficiently present[ed] the absolute priority rule in the bankruptcy court as to preserve the issue for review..."  and that the debtor himself had placed the absolute priority rule squarely before the court when he proffered compliance with section 1129(b) and sought confirmation of the chapter 11 plan.

References
As related in this short video,  preservation of the record can make the difference between life and death in a criminal proceeding.  

Jones Day blog post on In re Lett. 

Rogers Towers blog post.  (implications of substantial consummation as barrier to appeal)Attached: Untitled documentGoogle Docs: Create and edit documents online. Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055

"The recent Middle District of Florida decision in In re Nabavi, 2014 WL 3939595 (D.C. M.D. Florida, August 12, 2014) made reference to the 11th Circuit Court of Appeal’s longtime adoption of the "civil plain error rule" - an exception to the general rule that an appellate court will not consider an issue not raised in the lower court.  In the Nabavi  appeal to the District Court from the Bankruptcy Court, the creditor raised arguments which it had failed to bring before the Bankruptcy Court. The District Court held that the creditor waived its right to bring his arguments on appeal as the “civil plain error rule” exception did not apply.Preservation of Error The U.S Supreme Court held in Hormel v. Helvering, 312 U.S. 552 (1941) that “[o]rdinarily an appellate court does not give consideration to issues not raised below.”  In Hormel, Justice Black explained that [O]ur procedure scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of facts. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had not opportunity to introduce evidence.According, the 11th Circuit held in Narey v. Dean, 32 F.3d 1521 (11th Cir. 1994)  that "appellate courts generally will not consider an issue or theory that was not raised in the district court."  Exception: Civil Plain Error Rule
But the Supreme Court in Hormel held that its general principle is not unyielding and “[t]here may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Justice Black added that Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice11th Circuit 
In the case of In re Lett, 632 F. 3d 1216 (11th Cir. 2011), the 11th Circuit  reviewed its prior adoption of Hormel's “civil plain error rule” and its exceptions.  The 11th Circuit explained that the rule's exception permits consideration of a pure question of law not raised below, if the failure to consider that issue on appeal would result in a "miscarriage of justice."  The In Re Lett Court explained  that a “miscarriage of justice” is a decision or outcome of a legal proceeding that is prejudicial or inconsistent with the substantial rights of a party. Another 11th Circuit case explained that “[a]ny wrong result resting on the erroneous application of legal principles is a miscarriage of justice in some degree.”
The recent case of In re Biscayne Park, LLC, 540 Fed. Appx. 952 (11th Cir. 2013) cited In Re Lett and further explicated the circumstances in which the "plain error rule" will apply. The Court explained that it will consider an issue not raised in the lower courts under five circumstances:

1. it involves a pure question of law and if refusal to consider it would result in a clear miscarriage of justice
2. where the appellant raises an objection to an order which he had no opportunity to raise at the lower court level
3. where the interest of substantial justice is at stake
4. where the proper resolution is beyond doubt
5. if the issue presents significant questions of general impact or of great public concern

Bankruptcy ContextThe In re Lett Court explained that the “civil plain error rule” is particularly true in the bankruptcy context. The Court stated that “[o]rdinarily an appellate court does not give consideration to issues not raised below” because “bankruptcy cases are to be tried in front of bankruptcy court.”  The Court cited a prior decision that related that it is within the court’s discretion to resolve an issue decided in the bankruptcy court “if the record thoroughly presents the issue”  but “if the record reflects an issue that was presented in a cursory manner and never properly presented to the Bankruptcy Court, the issue is not preserved for appeal.” This decision further explained that “it is not enough that the record provides facts which may permit the resolution of an issue; rather the record must be adequately developed, to the point that the Bankruptcy Court could have passed on the issue …”

Certain Bankruptcy Code Provisions Never Waived?The author of a 2011 post on Weil Gotshal's "Bankruptcy Blog", wrote that the In re Lett decision suggested that certain provisions of the Bankruptcy Code may never be waived, such as in the context of a chapter 11 confirmation order, even if the party could have raised - but did not raise the argument before the bankruptcy court.  The blog post points out that the In re Lett Court "ultimately concluded that the district court had actually erred in relying on the civil plain error rule in declining to address whether the plain complied with the absolute priority rule" as that the involved confirmation related issue had been preserved for appeal because the requirement of section 1129(b) of the Bankruptcy Code had "sufficiently present[ed] the absolute priority rule in the bankruptcy court as to preserve the issue for review..."  and that the debtor himself had placed the absolute priority rule squarely before the court when he proffered compliance with section 1129(b) and sought confirmation of the chapter 11 plan.

ReferencesAs related in this short video,  preservation of the record can make the difference between life and death in a criminal proceeding.  

Jones Day blog post on In re Lett. 

Rogers Towers blog post.  (implications of substantial consummation as barrier to appeal)Attached: Untitled document

Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com

Detroit reaches a settlement with its greatest opponent, bond insurer Syncora Guarantee Inc., this Monday, according to a lawyer for the city.
Under the deal, Syncora will recover roughly 14 percent of money owed, which they've long claimed totals more than $333 million. Syncora will receive two sets of notes from Detroit, a lease to control a tunnel to Canada, land near the tunnel, and the possibility of leasing and controlling a parking structure.
With this settlement, Syncora is fully exiting the Chapter 9 bankruptcy case, including any future appeals.
David Heiman of Jones Day, a lawyer for Detroit, said to U.S. Bankruptcy Judge Steven Rhodes in Monday’s hearing that both parties have “laid down their swords.”
While the agreement with Syncora is an important cleared hurdle for Detroit’s bankruptcy emergence, the city still faces creditor Financial Guaranty Insurance Co., who is seeking roughly $1.1 billion from the pension debt it insured.
On Monday, FGIC asked Judge Rhodes to suspend the trial until September 22 so the company can modify its approach in the wake of Syncora’s settlement. The trial is currently on hold since last week so Detroit and Syncora could finalize their deal.
Detroit’s Grand Bargain is centered around an estimated $816 in pension debt. FGIC may be held responsible for payment if investors end up taking losses.
The Grand Bargain aims to relieve $7 billion in liabilities while supporting state retirement arrangements from state and private contributors. Detroit has guaranteed it will not sell off any pieces from its art collection to pay back any debts.
Syncora apologized in a court filing Monday. The company has been a longtime adversary in the case and recently accused court appointed mediators of inappropriate conduct and conflict of interest.
Because of the apology, Rhodes has stated he will no longer sanction Syncora in its attorneys.
The post Detroit Reaches a Settlement With Largest Creditor appeared first on The Bankruptcy Blog.