Florida Construction Law

Omar Haber v. Deutsche Bank National Trust Company, as Trustee , 37 Fla. L. Weekly D464a, Case No. 4D10-4458, filed February 22, 2012. Trial court’s summary judgment for lender in mortgage foreclosure was reversed based on lack of evidence that lender had given notice and opportunity to cure as required by the mortgage agreement. (RPPTL Subcommittee). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

In CTX Mortgage Co., LLC v. Advantage Builders of America, Inc ., 47 So.3d 844 (Fla. 2d DCA), the Court held that a lender was not enriched by undisbursed proceeds because it suffered damages in the form of a diminished security interest.  Accordingly, the contractor was unable to prove that the lender's retention of the funds were inequitable. Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com

In Miera v. National City Mortgage , 2009 WL 2495757 (M.D. Fla. 2009), the Court held that an owner stated a case against a lender who failed to make proper payments under the lien law to all potential lienors.  In this case, the lender had sole authority to make payments from the construction loans and failed to make proper payments pursuant to Section 713.06(2)(d), Fla. Stat. Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com

LaSalle Bank National Association v. Blackton , Case NO. 5D10-499 (Fla. 5th DCA 2011) held that where a notice of commencement was recorded before a mortgage was recorded, the notice of termination of the notice of commencement was recorded on same day as the mortgage was recorded, and a construction lien was recorded thereafter, the earlier recorded mortgage had priority over the construction lien.  The trial court erred in finding that a notice of termination was not effective to terminate the notice of commencement, and that the construction lien related back to the filing of the notice of commencement.  The trial court erroneously concluded that a notice of termination having both the owner and contractor as the same entity cannot be effective.  It was not necessary to attach a contractor's final payment affidavit to the notice of termination where the owner averred in the notice of termination that all lienors had been fully paid.   Trenton H. Cotney B...

Whitehead v. Tyndall Federal Credit Union , Florida First District Court of Appeal (September 16, 2010), Case No. 1D09-5221: Original contractor who had been terminated by homeowners prior to completion of construction sued lender for disbursing remaining loan proceeds to replacement contractor based on failure to give notice pursuant t o section 713.3471(2)(a), F. S. Trial court agreed, but was reversed, with one dissenting vote, and lender was held liable to original contractor for balance of loan proceeds disbursed to replacement contractor. Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com