Foreclosure When the Original Note Was Lost

Eric Lanigan, Winter Park, Florida, foreclosure lawyer talks about cases where the bank claims in the foreclosure action that it doesn't have the original note because it was lost.

Often, the bank will say the note really wasn't lost, that it was destroyed or misplaced in the securitization process.

First: Where is the Note?

The reality is it doesn't really matter if it was destroyed because under the Florida statute that deals with establishing the validity of a lost instrument, the note can either be destroyed or it can be a situation where the whereabouts are just unknown.

It can be a situation where the whereabouts are unknown but in the possession of someone who shouldn't have it and refuses to relinquish it. So you can have anyone of those situations and it falls under the lost note statute. So you have to prove one of those things to begin with.

Second: Proof the Note Wasn't Transferred 

The second thing that the bank has to prove is that the note was not transferred by the person who last had lawful physical possession of the note to somebody else. This is significant when the copy of the note, which theoretically the lender does have in a foreclosure action, but they just can't produce the original. 

It may show that it was a blank endorsement. In other words the endorsement just says, “pay to the order of” and then, it's a blank and then the original lender has signed it.

Third: What are the Terms of the Note?

The third thing that the bank must establish-- it's a multi-part third element--is what are the terms of the note. In other words, how much is it for? What's the interest rate and what's the payment schedule?

They have the right to enforce the note. In other words, one of those other things has not occurred. That there wasn't a lawful transfer of the note by someone in possession before it allegedly was supposed to be transferred to the bank now seeking to enforce it.

Prove One, Two, Three

The bank has to prove all three of these elements proving competent evidence through documents and testimony that comply with the rules of evidence.

If you get served with foreclosure papers or you've got a pending foreclosure and there's a count in there to establish a lost note, you need to get to someone who's competent in the rules of evidence and how to cross examine people in court.

Lanigan and Lanigan. Experienced attorneys with a personal touch. 407-740-7379

Hidden Costs in Florida Real Estate Purchases

Florida Real Estate Often Has Hidden Purchase Costs

There are many real estate purchase costs in Florida. Refer to this point where you complete purchase as “the closing.” 

Some people will also refer to “the settlement.” It’s the point at which all the papers are signed and the money is transferred from buyer to seller.

Closing Costs

Closing costs on Florida real estate do not include sales tax on the selling price on the Florida real estate transactions. However, there can be very significant costs. 

Documentary stamps on mortgage $3.50 per $1,000 of mortgage. Intangible tax of $2.00 per $1,000 of mortgage. But, if it’s a cash deal, then it doesn’t apply. Other Closing Costs Include:

• Real Estate Commissions
• Property Inspection
• Unpaid Taxes

Always get a “good faith” estimate of your closing costs before you sign the contract. Review it and all the pre-closing steps with your lawyer.

There is no tax on the purchase of property by foreign nationals.

Rental Property

All rental income is subject to U.S. income tax. Many double-taxation treaties to prevent paying taxes

in U.S. and in the home country.

Generally, very little if any taxes are paid because there are very generous deductions:

• Mortgage interest
• Cost of 2 trips to inspect property
• These generally offset the rental income

Foreign Investment in Real Property Tax Act

On the sale, the Foreign Investment in Real Property Tax Act comes into play. This means there’s a requirement that 10% should be withheld from the sales price. The responsibility falls on the buyer who is a foreign nationals. 

The buyer does not withhold if property is over $300,000 and for his home.

There may be significant profit potential in buyer certain properties called off plan, otherwise known as pre-construction property. 

Now, this is just some basic information on real estate issues to be aware of in Florida. It is not formal legal advice. You may watch the video, "Foreign Florida Real Estate Investors Beware of Pitfalls" on the Lanigan & Lanigan YouTube channel. 

Do Your Homework Before Buying Into an Off-Plan Deal

You may build in the RIGHT neighborhood, or you could miss.

Buying U.S. property that is pre-construction which is also known as off-plan like so many real estate deals can be a great thing or it can be a nightmare.

Florida Real Estate Attorney

I'm attorney Eric Lanigan, a real estate attorney since 1976. I was born, raised, schooled and have worked in Florida so I know the market. 

There are ups, downs, good areas to buy and horrible places to buy investment properties. 

More importantly, I know Florida real estate pitfalls. All of them. I've seen really bad decisions made. I've seen people ripped off because they didn't know a home was full of black mold, or on swamp land or in a sink hole likely location. 

In Florida, it's what the sellers know that you don't know that will indeed hurt you. 

Tips for Buying an Off-Plan Property

When you’re buying an off-plan property, it means that the home has not yet been built. There are often great deals and deep discounts to get the property sold before construction costs kick in.

The builder is leveraging your money. For example, you pay $100,000 with 5% down and the balance due in two years.

If it goes up 10% per year, then they’ve made back 100% before you’re even closed.

Research the Neighborhoods

If the real estate market where you’re buying is active and prices are rising, then it can be very profitable.

Your job will be to do extensive research on the project and the area; the location of the property is imperative.

Benefit of Buying Off-Plan 

A practical benefit to buying off-plan property is that if the project does not work out and you refuse to close, the question will become with the developer really go through all the time and expense to attempt to collect from you?

It may become a win-win if you do your real estate homework. 

Real Estate Investors: Protect Yourself from Fraud

Real estate fraud is very prevalent in Florida and anyone who is going to buy property or who is looking into real estate investments of any kind should first find a real estate lawyer.

Even if you're a Florida native and you're sure that you know all the tricks, you don't. If you truly want to protect whatever property--commercial or residential--before signing on the dotted line, hire an attorney to at the very least review your documents.

A skilled real estate attorney will direct you, review legal documents and contracts, look at the ins and outs, the ups and downs of a sale. You should have property reports. You should provide all the paperwork that is involved in a sale.

Protect Yourself, Then Buy If It's Safe

It's important to take steps to protect yourself and your investment upfront by allowing an attorney who you know and trust and who knows the many faults and tricks that can be involved in buying a Florida property.

You're NOT an Expert, so Find an Attorney

One thing that you can fault yourself on is buying property when you are not familiar with property faults. If you don't know about sinkholes, black mold, geographic surveys, hurricane damage, then you need an attorney who will protect you.

Eric Lanigan has lived in Florida his entire life and has seen the many ups and downs in the Florida real estate market.

"Many people don't consult and they don't know anything about Florida real estate. They come to me after the fact and want to sue.

"The challenge is the cost: you can pay many times more to sue than for a contract review."

Hire a Real Estate Attorney 

Don’t think that watching videos, reading and negotiating a deal makes you impervious to real estate fraud or serious legal issues.

Eric Lanigan and Roddy Lanigan are the attorneys at Lanigan and Lanigan, P.L., in Winter Park. The Lanigans are very knowledgeable in real estate, business, civil, and financial law.

The Lanigan's real estate insight comes from practicing Florida law as Winter Park natives who have seen the many scams and bad deals that unknowing buyers have had to deal with. One thing remains the same: impulse buys are dangerous.

Rental Property is Not for Amateurs 

People visit Florida with family and inevitably want to buy a timeshare. Next they consider a bigger
idea: a rental property. This idea starts because the buyer wants to save money on Florida vacations.

Then, the buyer looks for a property the family can stay in when they visit Florida. Instead of looking for a property that can be rented and easily maintained, the reasons become murky and blurred.

Buying a home with the idea that it should be rented vs. a property that will increase in value with minimal costs and a management company that can assure care for the home.

Your Realtor is Not an Attorney

The Lanigans help their clients involved with buying or selling real estate to avoid the pitfalls of not knowing the many issues that Florida land and property present.

Clients are residential, commercial and foreign buyers and sellers investing in personal and business property. Most individuals work directly with a real estate agent to buy and sell property and do not

think to consult an attorney.

Realtors are paid a commission from the property sale or purchase so selling the property is their focus. A realtor may be a seller’s agent, a buyer’s agent or a dual agent realtor with interest in buyer and seller interests.

An attorney will represent and protect your interests and protect you whether you’re a buyer or a seller. An attorney will look at your paperwork and help advise you on best practices based on your goals and your needs.

Don't Sign on the Dotted Line--Yet 

Zoning laws, property usage law, rental property law are not something that investors can know and understand unless they're attorneys.

You should have an attorney review all real estate documents before signing because a few hours or less can save many thousands of dollars in defense down the line.

Litigation is expensive and while the first thing that people may want to do is to "go after someone" and sue them, the truth is that litigation is very expensive.

If the Lanigans can negotiate or work with a mediator to resolve a legal situation, they will because a lawsuit of any kind will cost more than expected.

Where Do Most Deals Go Bad?

Attorney Eric Lanigan works with all types of clients before, during and after a real estate transaction. The potential for legal issues exists with the title search, the legal description of the property, land surveys, easements, appraisals, seller’s property disclosures to name a few.

"I've seen my share of good deals, but I've seen more bad deals," Eric Lanigan said. "One hour, two, maybe three hours of review with an attorney could have saved investors from the mistake of signing too soon, too quickly."

Talk with a very knowledgeable real estate attorney and allow them to review your contracts—at the very least. Take the time to consult an attorney before signing any real estate contract. An attorney will review the legal documents and find potential problems before the contract is executed.

Better to spend an hour or two upfront with an attorney than many thousands of dollars and untold amounts of time fighting for what could have been avoided in the first place.

Florida Property Easements Can Cause Land Disputes

Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park, Florida discusses property easements and how to prevent land disputes related to easement disagreements.




Visit the Lanigan and Lanigan YouTube channel to view this and other videos related to buying or selling real estate in Florida.

Consult An Attorney For Florida Real Estate Deals

Protect real estate investments with a skilled attorney.

Buying Florida property can be romanticized by new investors. Protect yourself from legal glitches by hiring a real estate attorney to protect your interests. 
Eric Lanigan and Roddy Lanigan are the attorneys at Lanigan and Lanigan, P.L., in Winter Park. The Lanigans are experienced in real estate, business, civil, and financial law.

The Lanigans' real estate skill comes from practicing Florida law as Winter Park natives who have seen the ups and downs and the many scams and bad deals that unknowing buyers have had to deal with in Florida.

The Lanigans help clients involved with buying or selling real estate to avoid the pitfalls of the many issues that Florida land and property present. Clients are residential, commercial and foreign buyers and sellers investing in personal and business property.

Be Careful in Closing Florida Real Estate Deals

Most individuals work directly with a real estate agent to buy and sell property

and do not think to consult an attorney. Realtors are paid a commission from the property sale or purchase so selling the property is their focus. 

A realtor may be a seller’s agent, a buyer’s agent or a dual agent realtor with interest in buyer and seller interests. Whereas an attorney will represent and protect your interests and protect you whether you’re a buyer or a seller.

Attorney Eric Lanigan works with all types of clients before, during and after a real estate transaction. The potential for legal issues exists with the title search, the legal description of the property, land surveys, easements, appraisals, seller’s property disclosures to name a few.

In recent years, real estate fraud has become much more prevalent because of the desperate attempts that homeowners have taken to get rid of property that is about to be taken in a foreclosure lawsuit.

You May Know Real Estate, You May Not Know the Law

Taking steps to protect yourself upfront before signing a deal is more important than ever. Don’t fool yourself into thinking that watching videos, reading and negotiating a deal makes you impervious to real estate fraud or serious legal issues.

It's a great idea to be proactive and learn as much as possible. However, trust an attorney to first review your documents. 

Talk with a very experienced real estate attorney and allow them to review your contracts—at the very least.

Take the time to consult an attorney before signing any real estate contract. An attorney will review the legal documents and find potential problems before the contract is executed.

Better to spend an hour or two upfront with an attorney than many thousands of dollars and untold amounts of time fighting for what could have been avoided in the first place.