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Home Foreclosures: 14.4.1.3 Notice of Contest of Lien

Florida law states that by recording a Notice of Contest of Lien, a unit owner may require the association to enforce a recorded claim of lien against the condominium parcel at issue.269 After the Notice of the Contest of Lien is recorded, the clerk of the circuit court must mail a copy of the recorded notice to the association by certified mail, return receipt requested, at the address shown in the claim of lien or most recent amendment to it, and service is complete upon mailing.

Home Foreclosures: 14.4.2.1 Challenging Assessments and Fees

A common problem for unit owners in many states is that it may not be practical to assert a counterclaim in a suit brought to collect assessments, fines, or other fees that is based upon the reasonableness of the charge at issue.271 This is true even when the owner genuinely believes that the charge is not lawful or that a valid reason or justification exists for not paying the charge that underlies the lien.

Home Foreclosures: 14.4.2.4.1 Right to sell

The foreclosure sale of a condominium unit must be based upon the seller’s legitimate right to sell stemming from state law and the association’s governing documents. In one case where, under the terms of the condominium declaration, the owner was granted an additional fifteen days to pay the assessments and utility fees, and where the substitute trustee conducted the foreclosure sale before the fifteen days had expired, a judgment of wrongful foreclosure was appropriate.

Home Foreclosures: 14.4.2.4.2 Notice

When statutory requirements regarding notice prior to sale are not met,316 a court may decide to set aside a sale, particularly when other procedural deficiencies are present.317 In addition, even where statutory requirements are satisfied, a court may set aside a sale if an association fails to comply with notice requirements contained in the association’s declaration.318

Home Foreclosures: 14.4.2.5 Failure to Accept Partial Payment While Claim Is in Dispute

A number of cases state that an association need not accept partial payments, since most state statutes grant an association the right to a lien for the entire amount due.349 Also, some statutes may state outright that an association is not obligated to accept partial payments.350 However, where an association refuses to accept partial payments while a claim is in dispute, a court may find that such refusal is improper under the circumstances of a given case.

Home Foreclosures: 14.4.2.6 Failure of Association to Ascertain Ownership

It is not reasonable for an association to record a lien against an individual’s property without first ascertaining that individual’s ownership interest in the unit. For instance, an association may assume that a unit is owned by one person when in fact it is owned by several family members or the heirs of the original unit owner.

Home Foreclosures: 14.4.2.8 Failure to Accept Reasonable Payment Plan

When a unit owner stops making payments, the association may secure a lien on the property and eventually proceed to foreclosure or commence litigation to recover the unpaid assessments. An association is generally under no obligation, statutory or otherwise, to offer or enter into a reasonable payment plan that could possibly abrogate the necessity for legal action.

Home Foreclosures: 14.4.3 Right to Cure Default

Some state condominium acts explicitly grant the owner the right to cure a default prior to a foreclosure sale.387 These laws provide that in order to cure, the owner must pay not only the “performance due under the security agreement” or payment in full of past due assessments, but also any amounts due because of acceleration, plus late charges, interest, or other reasonable expenses associated with proceeding to foreclosure, such as attorney fees.

Home Foreclosures: 14.4.4 Payment in Chapter 13 Case

If state law does not grant the owner the right to cure a default prior to a foreclosure sale, the filing of a chapter 13 bankruptcy may be considered. Filing bankruptcy will not only invoke the automatic stay in order to prevent the foreclosure sale process from continuing,390 but also in a chapter 13 case, the debtor can deal with an assessment lien claim by making payments on the claim under a chapter 13 bankruptcy plan.

Student Loan Law: 16.1.1 Introduction

Banks, nonprofits, nonbanks, credit unions, state-affiliated organizations, and for-profit (and nonprofit) schools extend consumer loans to students and/or parents to fund undergraduate, graduate, and other forms of postsecondary education. Private student loans are also known as private education loans and private-label or alternative loans.

Student Loan Law: 16.1.3.1 For-Profit School-Originated Loans

Since the credit crisis of 2008, many for-profit schools have been originating their own student loans. The for-profit school loan products vary between schools that originate closed-end or open-end credit products and schools that guarantee loans made by national banks or other financial companies.

Student Loan Law: 16.3.1.1 Generally

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) changed the federal regulatory landscape of private student loans considerably.108 The legislation created the Consumer Financial Protection Bureau (CFPB), which is charged with protecting consumers of financial services.

Student Loan Law: 16.3.1.3 CFPB Enforcement Actions

The CFPB can bring enforcement actions against private student loan lenders and related parties. In the CFPB’s lawsuit against ITT Educational Services, Inc. (ITT) for unfair, deceptive, and abusive business practices related to its private student loan programs, a district court ruled that ITT is both a “covered person” and a “service provider” subject to the UDAAP provisions of the Dodd-Frank Act under the facts alleged.118

Student Loan Law: 9.4.3.3 Guaranty Agency Garnishment Hearing

The borrower is entitled to a hearing with a “qualified individual” who is not under the supervision or control of the head of the agency or of a third-party servicer or collector employed by the agency.282 In many cases, the hearing officer will be a private attorney hired by the guaranty agency.283 The regulations allow the guaranty agency to establish the time and location of the hearing or to hold an oral hearing by telephone conference at the borrower’s option.

Student Loan Law: 18.4.6.1 Generally

For-profit schools have historically used arbitration agreements in their enrollment contracts to immunize themselves from classwide litigation—both in court and even in arbitration—and to force individual actions into arbitration.437 For example, a Senate Committee investigation found twenty-one of twenty-seven publicly traded for-profit schools used mandatory arbitration clauses in their enrollment agreements.438