The Florida Bar
The Florida Bar Journal
February, 2013 Volume 87, No. 2

Page 7

Regulatory Takings
The article, “Success in Litigating Local Permit Denials: Alternative Theories of Obtaining Justice” (Dec. 2012), provides an insightful overview or potential remedies for a landowner who has been denied a zoning of permit request. However, in the limited space afforded in such a broad overview, the short discussion on “A Regulatory ‘Takings’ Claim,” did not have the opportunity to review alternatives to the rare instance of a regulation “render[ing] the applicant’s property worthless.”

Contrary to what the article suggests, in addition to this narrow category of “total” or “catergorical” takings,1 in which a landowner must prove a loss of all value, “partial” regulatory takings challenges are governed by the standards set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).2 In a Penn Central analysis, recognized by Florida courts,3 the takings issue “turns on situation-specific factual inquiries.”4 Within this ad hoc inquiry, the focus is in large part, although not exclusively, on the magnitude of the economic impact on the landowner.5 Also keenly relevant to the inquiry is the interference with objectively reasonable and investment-backed expectations; as well as the character of the government action.6 While Penn Central provides a “fundamental guide” to the takings question, the deciding court must consider all the circumstances in a traditional judicial balancing, for there is “no magic formula enabl[ing] a court to judge, in every case, whether a given government interference with property is a taking.”7

While appropriately noted in an overview of remedies for an aggrieved landowner, the field of regulatory takings jurisprudence is as nuanced as it is evolving, and perhaps worthy of an article all its own.

1 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

2 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005).

3 St. Johns River Water Management District v. Koontz, 77 So. 3d 1220, 1227 (Fla. 2011).

4 Arkansas Games and Fish Commission v. United States, 133 S. Ct. 511, 518 (2012).

5 Lingle, 544 U.S. at 540.

6 Id. at 538-539.

7 Arkansas Game and Fish, 133 S. Ct. at 518.

Gregory S. Rix & S.W. Moore, Tampa

Negotiability in Foreclosures
Journal guidelines prohibit publication by authors involved in proceedings on their article’s topic, unless part of a forum for conflicting sides. December’s article, “A Critical Look at the Role of Negotiability in the Foreclosure Crisis,” is not part of such a forum.

Moreover, guidelines call for “clear identification by sufficient legal authority on all sides of an issue to enable the reader to assess the validity of the opinion.”

The author of the article, who does not clearly identify legal authority for both sides, is the president of Ice Legal, P.A., a firm specializing in the representation of defendants in foreclosure proceedings throughout the state.

Please consider publishing an article in rebuttal from a plaintiff’s foreclosure attorney.

To allow December’s article to stand alone, outside of a forum identifying the way negotiability in a foreclosure is adjudicated under the plain language of the Uniform Commercial Code, is to otherwise promote a gross misstatement of the law and to obfuscate our state’s statutes.

Among the article’s misstatements of law are that a person entitled to enforce an instrument must prove ownership of the instrument and that when the foreclosing bank is not the original lender, it must prove a purchase and an intent to transfer the mortgage with the note.

Negotiable instruments, and the accompanying right to bring an action thereon without proof of ownership, were the first common law exceptions to the long-standing rule against assignment of choses in action, the first reported case being decided in 1602. William E. Britton, Handbook of the Law of Bills and Notes, pg. 2 (2d ed. West 1961).

Under the Uniform Commercial Code’s plain terms, the rules that determine whether a person is a person entitled to enforce a note do not require that person to be the owner of the note, and a change in ownership of a note does not necessarily bring about a concomitant change in the identity of the person entitled to enforce the note.

A long line of Florida case law leaves no question that the person entitled to enforce the note has the concurrent right to foreclose the mortgage lien.

“[A]s a general rule, the endorsement of the notes secured by a mortgage carries with it the mortgage,…[the principle being so well settled that it is not] necessary to cite authorities in support of it.” Stewart v. Preston, 1 Fla. 10, 22 (Fla. 1846).

Ileen J. Cantor & Caroline Kane, Boca Raton and Tampa

Editor’s Note: The Journal’s publication policy also states that the editorial board “may publish articles on broad, common topics on which numerous proceedings often are pending,” as an exception to its pending proceedings rule. Taking into consideration that policy, the editorial board approved the publication of this article.

[Revised: 01-28-2013]