Issuu

IN THE NOW The LouisianaExpansion

IN THIS ISSUE:

● New FinCEN Reporting Starting March 1st, 2026- Halted by Texas Federal Court FLORIDA

● Fla. 4th DCA Deems Mortgage Unenforceable Due to Lack of Spousal Joinder

● Preserve The Record, Always Be Prepared For An Appeal

● Lost Note Affidavit: A Business Record Capable Of Providing Competent Substantial Evidence Of Standing

● Fla. 3rd DCA Holds a “Non-Borrower” Cannot Allege Violations of Mortgage Terms

● CAFMV Bids: A Call To Action LOUISIANA

● Effective January 1st, 2026: Louisiana Act 352 Ends Traditional Facsimile Filings NEWYORK

● High-Stakes FAPA Decision Looms as Court of Appeals Grants Review

Jason M. Vanslette

Editor and Chair of Real Estate Division

The best time to buy a home is always five years ago.

–Ray Brown

As we start 2026, the mortgage industry is rapidly seeing “signs of life” on the origination side due to falling mortgage interest rates and seller prices cooling off. However, low-to-medium income borrowers experiencing 90-120 days in default have also significantly increased across several jurisdictions. This dichotomy of hopeful new homebuyers coming to the market again along with increasingly stressed delinquencies will bring a lot of opportunity and growth to both our clients and firm in the coming year.

In this Real Estate edition of “In the Know,” our team has expertly drafted several pieces on new Federal regulations, seminal cases and compliance changes across all of our jurisdictions that directly affect the mortgage servicing industry. From topics including Louisiana’s new e-filing system to the new Federal FinCEN Regulations for residential real estate transactions, this issue is a “must read” for all clients and prospective clients. We hope you find value in our publication and continue to stay “in the know” in light of our industry’s shifting legal environment and the ongoing compliance changes.

Kelley Kronenberg Expands Real Estate Division to Louisiana with Addition of Amy Ortis

Kelley Kronenberg announces the expansion of its Real Estate Division into Louisiana with the addition of Partner Amy Ortis, effective December 1, 2025. Amy brings nearly three decades of experience in mortgage foreclosure, default services, and creditor’s rights to the firm’s growing footprint.

“Louisiana represents a strategic market for our Real Estate Division,” says Jason M. Vanslette, Chair of the firm’s Real Estate Division. “Amy’s depth of experience—from managing financial services teams to handling complex title issues—positions us to serve institutional clients throughout the state immediately.”

Amy joins Kelley Kronenberg from a financial services law firm where she served as Managing Attorney, overseeing teams handling foreclosures, evictions, bankruptcy, and collections. Her background includes managing operations for a Fortune 500 affiliate, directing title review and real estate transactions, and establishing corporate compliance protocols. Her practice focuses on representing banks, investors, loan servicers, and financial institutions in default foreclosure litigation and contested foreclosure matters. She’s licensed as a title insurance producer in Louisiana and handles everything from judicial foreclosures to complex title curative work.

Amy earned her J.D. from Mississippi College School of Law and her B.A. in English and Sociology from Louisiana State University. She began her career as a judicial law clerk in Louisiana’s Twenty-First Judicial District Court.

With Amy’s addition, Kelley Kronenberg’s Real Estate Division now serves clients across Florida, New York, Illinois, Indiana, and Louisiana—maintaining its Fannie/Freddie GSE Certification while expanding its mortgage foreclosure and default services capabilities throughout the South.

For inquiries about Kelley Kronenberg’s Louisiana real estate services, contact Amy Ortis directly at aortis@kklaw.com.

AMY R. ORTIS Partner

KELLEY KRONENBERG EXPANDS REAL ESTATE DIVISION TO LOUISIANA WITH ADDITION OF AMY ORTIS

FIRM OVERVIEW

FEDERAL/NATIONAL

NEW FINCEN REPORTING STARTING MARCH 1ST, 2026- HALTED BY TEXAS FEDERAL COURT

FLORIDA

FLA. 4TH DCA DEEMS MORTGAGE UNENFORCEABLE DUE TO LACK OF SPOUSAL JOINDER

PRESERVE THE RECORD, ALWAYS BE PREPARED

LOST NOTE AFFIDAVIT: A BUSINESS RECORD CAPABLE OF PROVIDING COMPETENT SUBSTANTIAL EVIDENCE OF STANDING

3RD DCA HOLDS A “NON-BORROWER”

more than with over the convenience of

Employees Attorneys Locations

Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm. We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.

New FinCEN Reporting Starting March 1st, 2026- Halted by Texas Federal Court

By: Jason M. Vanslette Editor and Chair of Real Estate Division

Originally starting the first of this year, and delayed to damper the immediate compliance burdens, a new Federal reporting requirements from the Financial Crimes Enforcement Network (FinCEN) was set to take effect starting March 1st, 2026, on all qualifying residential real estate purchases moving forward (including non-judicial foreclosures and REO sales).

The rule itself, formally known as the AntiMoney Laundering Regulations for Residential Real Estate Transfers (RRE), will require title agents, attorneys and all real estate settlement professionals to file a RRE Report with FinCEN for qualifying purchases (typically all-cash transactions including “gifts”) when the buyer is a legal entity (such as an LLC or corporation) or a trust (as opposed to an individual buyer).

Originally, FinCEN only targeted specific geographical areas and purchases over $1 million focusing on specific counties in major metropolitan areas such as California, Colorado, Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New York, Texas, Washington, Virginia and the District of Columbia. However, as of March 1st, 2026, FinCEN’s final rule required nationwide reporting without any purchase price thresholds.

Notably, there are some exceptions to the reporting requirements such as title transfers due to a divorce or dissolution of marriage, transfers in probate, transfers of an easement, transfers from a bankruptcy estate or through a supervised transfer by a U.S. Court, and transfers to a qualified intermediary for purposes of a 1031 exchange of the Internal Revenue Code. However, absent the exemptions, the reporting requirement will cover all residential 1-4 family properties, vacant land intended for 1-4 family construction, co-ops, condominiums, as well as mix-use and apartment buildings causing immediate changes across the nation.

The required information in the reporting consists of information about the property, information regarding both the buyer and seller (including beneficial owners under a trust) as well as the source of funds and payments made toward the transaction.

Although the reports will not be publicly available, FinCEN will retain and review these reports in hopes to countering and curtail anonymous laundering of illicit proceeds through the use of residential real estate which has been held to threaten both U.S. economic and national security.

Notwithstanding, on March 19th, 2026, the U.S. District Court for the Eastern District of Texas issued a Memorandum Opinion and Order in Flowers Title Companies, LLC v. Bessent vacating FinCen’s Anti-Money Laundering Regulations for Residential Real Estate Transfers rule shocking the industry.

The court essentially rejected FinCEN’s arguments that all non-financed (or cash only) residential real estate transfers to entities or trusts are categorically “suspicious,” finding

their explanations “vague, conclusory, and unpersuasive,” and noting that the mere fact that some bad actors have conducted such transactions does not render the entire category of transactions suspicious. Additionally, the court noted that the all-encompassing reporting requirements were overbroad simply because a purchaser with the appropriate means to do so does not utilize traditional financing methods. The court held that the fact that many buyers choose to hold property in trusts and LLC’s for tax purposes or to avoid liability is unremarkable and traditionally routine in the overall real estate market environment.

Although FinCEN will undoubtedly appeal the ruling, it does conflict with other federal court rulings (particularly out of the Middle District of Florida) and real estate professionals should remain observant and diligent until a final resolution is found on the rule. Notwithstanding, the reporting requirement is currently vacated (for the time being at least) and real estate professionals now have more time to prepare for an eventual permanent order to take effect in the near future—what that will require remains to be seen.

If you have any questions or concerns regarding the new reporting requirements and the vacatur, please contact our office to assist or discuss, as we continue to monitor the developing compliance landscape unfold.

FLORIDA

Fla. 4th DCA Deems Mortgage

Unenforceable Due to Lack of Spousal Joinder

By: Bryan Jones, Attorney KK TAKEAWAY:

The lack of spousal joinder on a mortgage encumbering homestead property—even a purchase money mortgage—generally renders the mortgage lien unenforceable unless the non-signing spouse later executes the mortgage or the subject property loses its homestead status. However, in such a circumstance, the lender may be entitled to an equitable vendor’s lien.

BACKGROUND:

In a recent decision, the Fourth District Court of Appeals reversed a trial court’s entry of summary final judgment of foreclosure, holding that the mortgage lien, which encumbered homestead property, was unenforceable on the basis that the spouse of the mortgagor was not a party to the mortgage instrument. In the case of Brown v. Towd Point Mortg. Tr. 2017-6, 423 So. 3d 887 (Fla. 4th DCA 2025), a wife borrowed funds to purchase a home and agreed to give the lender a mortgage on the property as security for the loan. While the wife was married at the time of the issuance of the loan and the purchase

of the property, the deed to the property was issued in the wife’s name only, and the wife was the sole signatory on the promissory note and mortgage. In fact, the mortgage instrument erroneously indicated that the wife was a “Single Person.” Following the wife’s purchase of the property, the property became her homestead, where she resided with her husband until she eventually passed away in May 2020.

Following the wife’s passing, the husband continued to reside at the homestead property, but the payments on the mortgage ceased. As a result, the lender initiated a mortgage foreclosure action in May 2023. The lender eventually moved for summary judgment, and the husband opposed the entry of summary judgment, arguing that the mortgage was purportedly void. More specifically, the husband argued that a “spouse may only alienate homestead property if joined by the other spouse,” and since the mortgage was only signed by the wife, it could not serve as a valid lien on the homestead property. Notably, the husband claimed to be totally unaware of the mortgage until well after the mortgage was executed.

Relying on Section 708.08(1), Florida Statutes, which states that mortgages “executed by a married woman without the joinder of her husband . . . are as valid and effective as though the husband had joined,” the trial Court rejected the husband’s argument. The trial court further relied on Article X, Section 4(a) of the Florida Constitution, which renders the lien of a purchase money mortgage superior to any homestead rights of the mortgagor. Following the entry of final judgment of foreclosure in favor of the lender, the husband appealed the trial court’s ruling.

On appeal, the Fourth District Court of Appeals ruled that the statute relied upon by the trial court was in direct conflict with Article X, Section 4(c) of the Florida Constitution, which expressly requires spousal joinder for alienation of homestead property, notwithstanding the terms of Section 708.08(1). The conflict between the statute and Article X ultimately resulted from the fact that Article X, Section 4(c) was amended in 1985 to apply to the spouse of “any natural person.” Prior to the 1985 amendment Article X, Section 4(c) applied only to a residence owned by the “head of a family.” As such, Section 708.08, which was most recently amended in 1983, and

which governs the property rights of married women, was not in direct conflict with Article X, Section 4 until the 1985 amendment.

In any event, because Section 708.08(1) was deemed to now be in conflict with the Florida Constitution, the appellate court held that the statute cannot be constitutionally applied. In so holding, the appellate court ruled that the mortgage lien was unenforceable unless and until the husband is later joined on the mortgage instrument or the property ceases to be homestead property. The appellate court reversed the entry of final judgment of foreclosure and remanded the case back to the

trial court with instructions to deny the lender’s motion for summary judgment. In a footnote, the appellate court noted that the husband’s lack of knowledge of the mortgage was a determining factor, suggesting that it may have ruled differently if the husband had attended the loan closing, was aware that the proceeds of the mortgage loan were being used to pay for the purchase of the property, and would have signed the mortgage if requested to do so.

However, all hope was not lost for the lender. The appellate court reasoned that the husband’s lack of joinder on the mortgage may give rise to the imposition and foreclosure of an equitable vendor’s lien. In fact, upon remand, the trial court was instructed to address the lender’s motion for summary judgment on its counts for an equitable vendor’s lien and equitable subrogation, which the trial court previously declined to rule upon. This decision underscores the complexity of the legal landscape concerning issues related to real property and mortgage foreclosure. It is crucial that lenders obtain the counsel of knowledgeable and experienced attorneys to assist in navigating these issues.

Preserve The Record, Always Be Prepared For An Appeal

By: Danielle Spradley, Partner

KK TAKEAWAY:

As a litigator in the default services arena, defendants, whether they are the borrower or not, will fight to prevent the Plaintiff from obtaining a judgment of foreclosure. The borrowers tend to want to remain in the home for free, while non-borrowers want to retain the property to continue to profit from rents with no obligation to pay the note, taxes or insurance. These non-borrowers tend to be owners who came into possession from a condo or homeowner’s association foreclosure which was concluded prior to the bank’s foreclosure action. Once judgement has been entered in favor of the Plaintiff, they may file an appeal and in other situations, the Plaintiff may file an appeal of a final judgment entered in favor of the defendant. Therefore, the Plaintiff should always be prepared to proceed as the appellee or the appellant. To preserve the record, it is imperative that counsel is provided with the requested information and documents so that the record is clear and preserved to demonstrate that the bank is entitled to summary judgment.

BACKGROUND:

In appeal cases, there are three main standards of review: de novo, abuse of discretion and competent substantial evidence.

de novo – according to the dictionary, de novo means anew, afresh; again; from the beginning. Therefore, when an appeal is filed and review falls under this standard, the Appeals Court will review, as an example, an order granting a final summary judgment from the beginning. See Bejarano v. City of Coral Gables, 300 So. 3d 712, 714 (Fla. 3d DCA 2019). “[W]e must view the record and reasonable inferences therefrom in a light most favorable to the nonmoving party, and any doubt concerning the existence of a disputed issue of material fact must be resolved against the moving party.” Davis v. Baez, 208 So. 3d 747, 750-51 (Fla. 3d DCA 2016).

Some common orders in the default services space which are reviewed de novo are orders granting or denying a summary judgment including standing to bring a foreclosure action; final orders dismissing a complaint and orders on directed verdict and motions to dismiss.

Abuse of discretion – when an appeal is filed and the review falls under this standard, the Appeals Court will review the record to determine whether the trial court made an error, such as an improper ruling on the admission or rejection of evidence, or applying the wrong legal standard or reliance upon facts that were not supported by the evidence admitted.

One common appeal issue which falls under this standard is an order to vacate a final judgment. The standard of review of an order on a motion to vacate a judgment pursuant to Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s discretion. Ocwen Loan Servicing, LLC v. Brogdon, 185 So. 3d 627, 629 (Fla. 5th DCA 2016). Florida courts will “afford the trial court’s ruling a degree of deference, such that it will be affirmed unless the judicial action is arbitrary, fanciful, or unreasonable.”

Bayview Loan Servicing, LLC v. Dzidzovic, 249 So. 3d 1265, 1267 (Fla. 2d 2018). Based on this standard of review, the trial court is given deference, but if it is determined to be beyond reason or that the result created substantial injustice, then there is a great chance that the ruling will be reversed.

Competent substantial evidence – when an appeal is filed, the Appeals Court will determine whether the evidence relied upon at trial or in a motion for summary judgment is sufficient in the record to support the trial court’s conclusion. The Appeals court will determine whether the bank provided competent substantial evidence to support the entry of the final judgment, based on the testimony and business records presented at trial. See Bass v. Bank of Am., N.A., 408 So. 3d 134.

PRESERVING THE RECORD

So, how do you meet these standards to ensure that the evidence submitted in support of a motion for summary judgment or admitted at trial can withstand the scrutiny an Appeal Court?

Do your best to make sure that Plaintiff’s counsel has the necessary information and documents to prove a prima facia foreclosure case, which would include the proper powers of attorney, accurate payment histories, legally sufficient lost note affidavits, assignments of mortgage which assign the note along with the mortgage and whatever additional documents counsel requests.

While it is the job of counsel to ensure that the record is preserved by raising the proper objections and laying the proper foundation to admit evidence, it is imperative that counsel be provided with the proper evidence, as counsel can only submit and admit evidence that they have in their possession. Argument of counsel is not evidence.

Lost Note Affidavit: A Business Record Capable Of Providing Competent Substantial Evidence Of Standing

Fernandez v. Wilmington Tr. Co., No. 3D250364, 424 So. 3d 1027 (Fla. 3d DCA 2025)

By: Irina Danilyan, Partner

KK

TAKEAWAY:

At trial, foreclosure counsel should elicit testimony from the loan servicer’s representative confirming that the lost note affidavit is maintained as part of the servicer’s business records, to provide competent, substantial evidence of the plaintiff’s standing.

In this issue of In The Know®, we once again turn to a fundamental requirement a foreclosure plaintiff must meet in order to establish its prima facie case – standing – this time in a lost note context. A recent case decided by Florida Third District Court of Appeal (“Third DCA”) touches upon a specific nuance of admissibility of evidence in determining whether a foreclosure plaintiff has established standing to enforce a lost note.

In Fernandez v. Wilmington Tr. Co., the Third DCA concluded that the court below did not err in entering final judgment of foreclosure following the trial because the lost promissory note was properly reestablished and Plaintiff introduced competent substantial evidence to establish its standing to enforce the note.

BACKGROUND:

After Fernandez and Sanchez (“Borrowers”) defaulted under their mortgage securing a note executed in 2005 in favor of Encore Credit Corp., Wilmington Trust Company (“Bank”) filed a foreclosure action on June 25, 2018. Attached to the Bank’s complaint was a Lost Note Affidavit signed by a Jacqueline Buchanan, employee of the Bank’s servicer, Ocwen Loan Servicing, LLC (“loan servicer”). The Lost Note Affidavit attached copies of the note bearing three endorsements, the last of which endorsed the note to Wilmington

Trust Company (“Wilmington”), and an assignment of mortgage to Wilmington.

The Bank had previously filed a foreclosure action seeking to enforce the same note and mortgage in 2010, but it lost that prior case despite being the holder of the original note at trial. because the Bank failed to attach a copy of the note to its 2010 complaint, it could not show standing at the inception of the case – a fundamental requirement of standing in foreclosure cases.

In the 2018 foreclosure action, the Borrowers asserted a single affirmative defense at the

non-jury trial – lack of standing – which they had previously raised in their answer and affirmative defenses. Following trial, the Circuit Court for Miami-Dade County entered the amended final judgment of foreclosure. The appeal ensued.

DISCUSSION:

In its concise, well-reasoned opinion, the Third DCA initially noted that the events

surrounding the 2010 prior foreclosure, where the original endorsed note was still in existence, were irrelevant to its disposition of the 2018 foreclosure action. To the District Court, the 2010 circumstances are immaterial where the Bank seeks enforcement of a lost note – a process governed by the controlling Florida law with its distinct requirements outlined by the Court at the outset of its opinion.

Fla. 3rd DCA Holds a “NonBorrower” Cannot Allege Violations of Mortgage Terms

Pike Holdings, LLC v. Brighthouse Life Ins. Co. 2025 Fla. App. Lexis 9139

By: Marc A. Marra, Partner

KK TAKEAWAY:

Non-party to mortgage lacks standing to raise defense of failure to comply with conditions precedent requirements contained within mortgage instrument.

BACKGROUND:

By way of background, BRIGHTHOUSE LIFE INSURANCE COMPANY (“Brighthouse”) initiated a foreclosure action in which defendant PIKE HOLDINGS LLC (“Owner”) the non-borrower property owner, attempted to raise the defense that Plaintiff failed to comply with paragraph 22 of the subject mortgage mandating that the borrower(s) under the loan be provided with certain notice requirements in advance of initiating judicial foreclosure proceedings. The Circuit Court entered foreclosure judgment in favor of Brighthouse over Owner’s objection, and the Court subsequently entered an order denying Owner’s motion for rehearing. Owner appealed the final judgment of foreclosure

in favor of Brighthouse, and the denial of Owner’s motion for rehearing.

The Third District Court of Appeal affirmed the Circuit Court’s entry of judgment in favor of Brighthouse, finding that as Owner was a non-party to the mortgage, they lacked standing to assert a defense based on failure to comply with Paragraph 22 of the Mortgage’s notice of default requirements. In making their ruling, the Third District Court of Appeal relied upon the decision made in Clay County Land Trust #08-0425-0078-014-27 v. JPMorgan Chase Bank, N.A., which held that when an entity is not a party to the mortgage, they do not have standing to challenge any violation of the mortgage terms. 152 So. 3d 83, 84. Instead, the borrower under the mortgage instrument in question is the only party who may plead nonperformance of any conditions precedent, and a borrower’s failure to do so results in a waiver of those conditions. Id. at 84.

Therefore, lender’s counsel must always be mindful of both ensuring adherence to mortgage conditions precedent in advance of case filing, and cognizant of whether the party attempting to allege a failure to adhere to those requirements has the legal right to do so.

CAFMV Bids: A Call To Action

By: Jordan Wainstein, Practice Partner

Updates To Bidding At Foreclosure And PostForeclosure Sales Efforts

KK TAKEAWAY:

For servicers to comply with HUD’s CAFMV bidding instructions in Florida, servicers must act swiftly in communicating the bid and wiring any overage to the firm handling the foreclosure sale.

BACKGROUND:

HUD administered a federal mortgage insurance program which incentivizes lenders to finance residential housing by paying the lender the unpaid principal and the foreclosure expenses in the event of foreclosure, and the VA’s loan program provides similar incentives.

When the lender begins foreclosure proceedings, it must notify HUD. HUD has the property appraised to determine the Commissioner’s Adjusted Fair Market Value (CAFMV) of the property. HUD decides whether this amount should be the bid price at the foreclosure sale and provides the lender with this price prior to the sale. To be entitled to payment of its mortgage insurance claim, the lender must bid this value at the foreclosure sale.

This translates in the most common scenario as the mortgage servicer receiving a bidding instruction from the lender which reflects a plaintiff maximum bid that is greater than the plaintiff’s final judgment amount. As soon as this instruction is issued the bidding process for the plaintiff becomes very time sensitive and servicers must flag the file as a priority file.

The reason for this designation is, to bid an amount that is higher than plaintiff’s total judgment amount, plaintiff must meet certain criteria in a timeline which can be very narrow depending on when the bidding instruction is received. Once final judgment is entered, and the foreclosure enters the “sales stage”, the clerk of court is now a key player in the property going to foreclosure auction. This is because the clerk, not the judge’s office, is in charge of accounting for the sales funds and the sale fees and issuing the sales certificates.

When a plaintiff bids higher than its final judgment amount and wins the property for an amount over that final judgment, the clerk requires the plaintiff to send the difference between the final judgment amount and the winning bid amount. And these funds must be sent immediately.

Every clerk of every county gets to set their own rules dictating when and how those funds must be received. In the best-case scenario, the clerk’s deadline will be 4:00 P.M. the business day after sale via wire. In the worst case scenario the clerk will require those funds to be received by 4:00 P.M. the same day as the sale via certified check. If the funds are not received in time, the clerk can

invalidate the sale and the sale will need to be reset.

The call to action for servicers receiving these CAFMV bidding instructions is to reach out to the foreclosure law firm immediately to wire the overage amount so that the firm can ensure the clerk has everything they need to validate the foreclosure sale.

pleadings, documents, and exhibits may be filed either in person in paper form or electronically with the clerk of court in accordance with the parish courts’ approved e-filing system including the Louisiana Clerk’s Remote Access Authority portal and the independent filing systems of the Louisiana Courts of Appeal and the Louisiana Supreme Court. For e-filings, a document is considered filed on the date and time shown on the clerk of court’s acceptance confirmation.

Effective January 1st, 2026: Louisiana Act 352 Ends Traditional Facsimile Filings

By: Amy R. Ortis, Partner

Recently, the Louisiana Legislature enacted Act Number 352 of the 2025 Regular Legislative Session, which changes how court filings are submitted in civil and criminal proceedings in Louisiana.

Beginning January 1, 2026, Louisiana Clerks of Court will no longer accept facsimile filings from licensed attorneys. Thereafter,

In Louisiana, original foreclosure related documents such as the promissory note may be crucial for evidentiary purposes. Attorneys handlings foreclosure matters may continue to file “paper” originals of key evidentiary documents, such as promissory notes. The Act expressly allows attorneys to send in paper filings of a narrow set of original documents by U.S. mail or courier. These documents include promissory notes, wills, and some documents which require “authentic form”, meaning the document was executed before a notary and two witnesses to the instrument.

Louisiana’s enactment of Act 352 does not alter foreclosure timelines, defenses, or rights of debtors. It merely changes the method of submission of certain filings by licensed attorneys.

LOUISIANA

BACKGROUND:

High-Stakes FAPA Decision Looms

as Court of Appeals Grants Review

By: Jason D. Silver, Partner

KK TAKEAWAY:

A recently expanded law allowing for an affirmation instead of formal affidavit under oath increases practicality across the board in New York. Litigants in a case, non-parties to a case, and their attorneys can save substantial time, efforts and resources..

The Governor of New York recently signed an update and clarification to CPLR § 2106 into law which allows any person to submit an unsworn affirmation in civil court actions versus a formal, notarized signature with testimony – which requires the time, effort and sometimes cost of a notary public swearing in the person making the statement under oath.

The law first became effective on January 1, 2024. Its goal – a practical one highlighted especially during the COVID-19 pandemic - was to alleviate the obligations related to submitting testimony on litigants, nonparty witnesses, court clerks and staff, and the legal system as a whole – including unrepresented individuals. Its intent was to expand access to the courts.

NEW YORK

It also aimed to align New York with more than 20 other states to be in line with the federal court standard of accepting unsworn declarations under penalty of perjury under 28 U.S.C. § 1746.

New York law defines an affirmation as essentially the submission of written testimony under the penalty of perjury - but without an oath.

The recent amendment to the law signed on November 21, 2025, which was requested to lawmakers by New York’s Unified Court System, expands its reach – now allowing for an affirmation to be used for “…a certificate, a response to a notice to admit, an answer to interrogatories, a verification of a pleading, a bill of particulars and any other sworn statement.”

The amended law is not intended to be an easy shortcut for affiants. Noncompliance could cause issues if the new law is not followed. It requires the very strict language below to be utilized directly from the written statute, and courts will not allow substantial deviation from same – or else it will be deemed a null statement.

“I affirm this day of___,____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.”

See CPLR § 2106 (Consol., Lexis Advance through 2026 released Chapters 1, 2)

For example, a Civil Housing Court in Queens, New York recently held that if the affirmation does not have the language required by CPLR § 2106, it is a nullity. See Shoreview Holdings, LLC v Fernandez, ___Misc 3d___, 2025 NY Slip Op 25277, *5 [Dec. 22, 2025].

At the same time, a party may be able to survive noncompliance challenge to the affirmation if the language utilized is “sufficiently close to the statutory language to constitute a proper affirmation.” See Fort Washington Intercontinental Assoc., LLC v Ramirez, 88 Misc 3d 1201[A], 2025 NY Slip Op 52124[U], *3 [Civ Ct, New York County, Dec. 19, 2025].

Next time an attorney or party in New York needs to notarize a document, think twice and analyze if the situation can benefit from CPLR § 2106 to save time and efforts.

In sum, New York’s efforts to alleviate formalities when it comes to offering unsworn statements in court expands access to court for all litigants, increases efficiency, and reduces time and costs.

CONTRIBUTORS MEET THE

Jason M. Vanslette Editor and Chair of Real Estate Division

Email Jason M. Vanslette

Jason Vanslette is an “AV” rated Partner and Business Unit Leader, focusing his practice on Real Estate, and Mortgage Foreclosure & Default Services. In his practice, he represents mortgage servicers, mortgage lenders, and other financial service providers with foreclosure, bankruptcy, evictions, and title litigation matters. Jason overseas and manages the Real Estate and Mortgage Default and Lender Representation Divisions at Kelley Kronenberg, which has recently expanded to include Florida, Illinois, Indiana, and New York. Jason is rated AV Preeminent by Martindale-Hubbell, which indicates a demonstration of the highest professional and ethical standards and is the highest rating a lawyer can receive.

Jason began his legal career as an Assistant Public Defender for the Office of the Public Defender – 9th Judicial Circuit in Orlando, FL. During that time, he provided criminal defense representation to more than 200 clients simultaneously and served as Lead Chair on more than 15 jury trials.

Prior to joining the firm, Jason worked as an Attorney for a firm in Fort Lauderdale, FL, where he provided legal representation to major financial institutions and mortgage servicers in various counties throughout the state, while focusing on non-jury trials and contested litigation.

Jason earned a Bachelor of Arts degree from Florida State University. He went on to earn a Juris Doctorate degree from Nova Southeastern University, Shepard Broad Law Center where he earned a spot on the Dean’s List for three consecutive years and received the Pro Bono Honors Award. While attending law school, he served as an executive board member for Law Student Advisor, Chief Executive and Host of WLAW Radio and member of the Nova Trial Association.

Bryan S. Jones

Attorney

Email Bryan S. Jones

Bryan Jones is an Attorney at Kelley Kronenberg, where he handles matters related to mortgage foreclosure litigation and assists banks and other financial service providers with regulatory, enforcement, transactional, and litigation matters.

Danielle M. Spradley Partner

Email Danielle M. Spradley

Danielle Spradley is a Partner at Kelley Kronenberg, where she assists in handling matters related to mortgage foreclosure & default services.

Before joining Kelley Kronenberg, Danielle spent more than fifteen years handling every aspect of criminal and civil litigation, amassing substantial trial and dispute resolution experience. Most recently, Danielle served as Managing Attorney overseeing the Litigation Department of a renowned national law firm where she not only provided supervision and guidance to the firm’s attorney’s and staff, but also represented clients in complex civil litigation matters, and as counsel for major

Before joining Kelley Kronenberg, Bryan gained extensive experience representing corporate and non-corporate clients in variety of litigation matters in state and federal court, including escalated mortgage foreclosure, commercial, timeshare, consumer, and employment litigation.

Bryan received his Bachelor of Science in Journalism from the University of Florida. He went on to earn his Juris Doctor degree from Florida International University College of Law, where he made Dean’s list, ranked in the top 20% of his class and received several book awards.

financial institution and investor plaintiffs in foreclosure actions. For many years, Danielle handled Estate Planning matters and represented clients in complex probate litigation; and, she also represented major financial institutions and investors in debt collection actions. Prior to entering the private sector, Danielle spent two years working as an Assistant Public Defender.

Danielle received her Bachelor of Arts from Florida State University where she demonstrated academic excellence, earning inclusion on the Atlantic Coast Conference Honor Roll. She also achieved athletic and extracurricular excellence as a member of FSU’s Varsity Track and Field Team, also serving as the team’s Student Ambassador. Danielle went on to obtain her Juris Doctor degree from University of Miami School of Law where she served as an Executive Board Member of the Entertainment and Sports Law Society. While in law school, Danielle began amassing experience through a Judicial Clerkship for the Honorable Norman C. Roettger, Jr.

Irina Danilyan Partner

Email Irina Danilyan

Irina Danilyan is a Partner at Kelley Kronenberg, where she specializes in mortgage foreclosure & default services and the representation of creditors in bankruptcy matters incident to mortgage foreclosures.

Irina previously focused her practice on mortgage foreclosure litigation and assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters. Irina has extensive

Amy R. Ortis

Partner

Email Amy R. Ortis

Amy Ortis is a Partner at Kelley Kronenberg in the Real Estate Division, focusing her practice on mortgage foreclosure and default services. She brings nearly three decades of comprehensive experience in corporate and commercial law, creditor’s rights, real estate transactions, and title insurance.

Prior to joining Kelley Kronenberg, Amy served as Managing Attorney for a financial services law firm, where she managed and mentored a team of attorneys and support staff specializing in foreclosures, evictions, bankruptcy, and collections. She oversaw daily operations including budgeting, resource allocation, and performance

experience handling contested and uncontested foreclosure litigation. She handled pre-judgment and post-judgment foreclosure matters, including protection of creditors’ rights in condominium termination, probate, and criminal forfeiture matters.

Irina earned her Bachelor of Science degree in Management, cum laude, from Long Island University. She then went on to earn her Juris Doctor degree from Nova Southeastern University College of Law. During law school, Irina received a CALI Book Award in recognition of achieving the highest score in her Legal Research & Writing course and served as a Professor’s Research Assistant.

Irina is fluent in Russian.

metrics, while also engaging in legal research, pleading development, and providing legal counsel. She brings experience including serving as an attorney and branch manager for an affiliate of a Fortune 500 corporation, where she directed a team of professionals, coordinated corporate activities, led title review, and facilitated real estate transactions. She has also served as the managing attorney for a branch office, overseeing daily operations and issuing title insurance, and has practiced as an attorney specializing in corporate and commercial litigation. She began her career as a judicial law clerk in the Twenty-First Judicial District Court of Louisiana.

Amy earned her Bachelor of Arts in English and Sociology from Louisiana State University. She received her Juris Doctor from Mississippi College School of Law.

Amy is a licensed title insurance producer in Louisiana and possesses exceptional experience in establishing and enforcing corporate compliance, resolving title defects, and managing complex real estate transactions.

Marc A. Marra Partner

Email Marc A. Marra

Marc Marra is a Partner at Kelley Kronenberg focusing on the Firm’s Real Estate Practice. With over ten years of experience, his practice focuses on assisting banks, lenders, mortgagees, and financial service providers with enforcing their rights in security instruments on real property. He protects, enforces, and litigates his clients’ rights in security instruments on real estate. He

also represents Condominium Associations and HOAs throughout South Florida as general counsel.

Marc is the founder of Heart Warriors, Inc., a non-profit corporation which supports children with Hypoplastic Left Heart Syndrome (HLHS) and other congenital heart diseases, and their families. This cause is very close to him as his daughter, Charlotte, has HLHS, and has undergone multiple major open-heart surgeries.

Marc prides himself on being available to his clients 24/7 and on his ability to assist with issues stemming from any dispute related to real estate – title, general real estate litigation, bankruptcy, sale, etc.

Jason D. Silver Partner

Email Jason D. Silver

Jason Silver is a Partner at Kelley Kronenberg, where he concentrates on matters related to all aspects of mortgage foreclosure & default services, assisting banks and other financial service providers with regulatory, enforcement, transactional and litigation matters, and representing commercial property owners and property managers with tenant lease compliance and breach issues.

Jason has close to a decade of experience in contested foreclosure litigation, guiding creditors from the beginning to completion of a court action.

Prior to joining the firm, Jason worked as an Associate Attorney at an AmLaw 200 firm focusing his practice

in the areas of banking and consumer finance. He also practiced bankruptcy and general litigation as well as municipal and government law, having presided as the Deputy Municipal Attorney for the Village of El Portal, Florida.

Jason received his Bachelor of Science in Public Relations with a minor in History from the University of Florida where he was elected to the Florida Blue Key Honor Society and awarded the Honorable Mention for the Outstanding Leadership and Service Award.

He then went on to earn his Juris Doctor degree from St. Thomas University School of Law. While in law school, Jason received a Book Award in Appellate Advocacy. Jason also worked as a legal intern for the Office of the City Attorney at the City of Miami in the Land Use, Zoning, and Quality of Life Division and interned for the Hon. Judge David Gersten (ret.) at the Third District Court of Appeal.

Jason is an avid runner and successfully completed the ING Miami Half Marathon and 13.1 races in 2011 and the Hollywood Beach Half Marathon in 2020.

Jordan E. Wainstein Practice Partner

Email Jordan E. Wainstein

Jordan Wainstein is a Practice Partner at Kelley Kronenberg, where she handles real estate and mortgage foreclosure & default services. She also assists banks and other financial service providers with regulatory, enforcement, transactional, and litigation matters.

Jordan earned her Bachelor of Arts degree from the University of Florida, where she majored in English. During her time at the University of Florida, Jordan was a member of the Pre-Legal Honors Society.

Jordan then went on to earn her Juris Doctor degree from Nova Southeastern University Shepard Broad College of Law, where she was an associate Editor for the ILSA Law Journal, as well as a member of the Moot Court Society. Jordan was the Vice President of her School’s Association

of Business Law Students and the Transactional Law Practice Group President. She gained legal experience while earning her J.D. by attending the Trial Advocacy Summer Institute, being a pupil in the Craig S. Barnard Inn of Court, and working as a Teaching Assistant to Adjunct Professor Gary Brown.

While in school, Jordan worked at Kelley Kronenberg as a Summer Associate and Law Clerk, where she worked directly with our construction department. Jordan gained experience by summarizing discovery reports, trial records, briefs, and other documents. She drafted deposition reports, pleadings, letters to insurance adjusters, and tender letters to carriers. She also served as a Judicial Intern to Judge Marcia Cooke for the United States District Court, Southern District of Florida.

Jordan is an active member of the American Legal & Financial Network Junior Professionals & Executive Group and volunteers regularly at SOS Children’s Villages Florida, showcasing a commitment to both professional development and community service.

LOCATIONS

FORT LAUDERDALE

10360 W. State Road 84

Fort Lauderdale, FL 33324

Phone: (954) 370-9970

ORLANDO

20 North Orange Avenue, Suite 704

Orlando, FL 32801

Phone: (407) 648-9450

TAMPA

1511 North Westshore Blvd., Suite 400

Tampa, FL 33607

Phone: (813) 223-1697

DAYTONA

128 Orange Avenue, Unit 306

Daytona Beach, FL 32114

Phone: (754) 888-5437

NEW YORK CITY

111 Broadway, Suite 1205

New York, NY 10006

Phone: (845) 306-7867

CHICAGO

20 N. Clark Street, Suite 1150

Chicago, IL 60602

Phone: (312) 216-8828

JACKSONVILLE

10245 Centurion Parkway N, Suite 100 Jacksonville, FL 32256

Phone: (904) 549-7700

MERRILLVILLE

233 E. 84th Drive, Suite 200

Merrillville, IN 46410

Phone: (317) 731-6243

BY APPOINTMENT ONLY

ALBANY

401 New Karner Road. Suite 301

Albany, NY 12205

Phone: (845) 306-7867

ATLANTA

1100 Peachtree Street NE, Suite 200

Atlanta, GA 30309

Phone: (404) 990-4972

MIAMI

220 Alhambra Circle, Suite 410

Coral Gables, FL 33134

Phone: (305) 503-0850

NEW ORLEANS

400 Poydras Street, Suite 2400

New Orleans, Louisiana 70130

Phone: (504) 208-9055

TALLAHASSEE

6267 Old Water Oak Road, Suite 250

Tallahassee, FL 32312

Phone: (850) 577-1301

DALLAS

5956 Sherry Lane, 20th Floor

Dallas, TX 75225

Phone: (983) 999-4640

WEST PALM BEACH

1501 Belvedere Road, Suite 500-504

West Palm Beach, FL 33406

Phone: (561) 684-5956

INDIANAPOLIS

10475 Crosspoint Blvd., Suite 218

Indianapolis, IN 46256

Phone: (317) 731-6243

NAPLES

3080 Tamiami Trail E., Suite 322

Naples, FL 34112

Phone: (239) 990-6490

SHORT HILLS

51 John F. Kennedy Parkway

First Floor West

Short Hills, NJ 07078

Phone: (908) 403-8174

ACCOLADES AWARDS AND FIRM AWARDS

Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards: