Ed Foster

Joseph E. (‘Ed’) Foster

With significant jury and non-jury trial experience, Ed Foster represents clients in both federal and state court litigation at the trial and appellate levels. Ed represents a wide range of clients, many of whom operate in the financial services, special assets, special servicing, hospitality, real estate, and automotive finance sectors. Ranked by Chambers USA for many years, which noted his work in litigation and alternative dispute resolution, he has been described as “seasoned, respected, and knowledgeable.”

Ed’s litigation and trial experience includes a host of complex commercial mortgage foreclosures - including CMBS foreclosures, many involving receiverships - and disputes involving Article 9 secured financing, replevins, self-help repossessions, letters of credit, commercial landlord-tenant disputes, and real estate transactions. He also has extensive experience with Article 9 sales and receivership sales. Having been a certified mediator, as well as a trial lawyer and strategist, Ed utilizes a variety of approaches to resolve matters in the best interests of his clients, whether through negotiated settlement or trial. Clients value his early assessments of matters and subsequent strategies developed from both a business and legal perspective.

In addition to his litigation practice, Ed consults with financial institutions on proposed legislation affecting their sector, with an emphasis on mortgage foreclosures, proceedings supplementary, and judgment enforcement. Ed’s clients value his early strategic assessments of a case developed through both a business and legal perspective.

Ed lectures and writes widely on matters pertaining to foreclosure, judgment collection, and receivership law. He is the author of “The Short of It,” a well-regarded e-mail blast distributed to a wide variety of special assets officers, special servicers, and in-house counsel, which discusses new Florida cases and other developments of interest. He is also the current author of the Florida Commercial Foreclosure Practice Notes for Thompson Reuters Practical Law, as well as the Florida portion of the Trigild Receivership Desk Manual, and contributes to the American College of Mortgage Attorneys Annual Mortgage Law Summary.

Notable Work

Foreclosure and Receivership Litigation: Represented clients, including a bank special servicer and CMBS special servicers, in commercial judicial mortgage foreclosures and accompanying receiverships throughout Florida. Florida law does not provide for any type of non-judicial mortgage foreclosure process. Thus, all mortgage foreclosures in Florida are full-fledged lawsuits, usually brought in state court in the county or counties in which the subject real property is located.
Secured Financing Litigation: Represented clients in Revised Article IX sales, both judicial and non-judicial, as well as various self-help repossessions and judicial replevins of personalty, including jet and other aircraft, automobiles and trucks, furniture inventory, restaurant equipment, store inventory, medical equipment, flight simulators, livestock, live birds, crops, furniture, fixtures, and heavy equipment.
Commercial Landlord-Tenant Litigation: Represented a client in a jury trial on evicting a restaurant from a hotel property, with a counterclaim by the tenant. Has represented a variety of commercial landlords and tenants in various matters.
Commercial Litigation: Represented a Fortune 50 company as replacement counsel in a case involving royalties allegedly due for sales of a turbine engine component. The case had been pending for 18 years, and was settled on terms favorable to our client.
Arbitration: Represented a large Canadian company in an arbitration involving the payment of royalties arising after an Article 9 purchase and sale.

Foreclosure and Receivership Litigation

Represented clients in a foreclosure action in both state and federal court.
Represented clients in foreclosures of mortgages on nursing homes, golf courses, shopping centers, hotels, office buildings, residential and business condominium projects, restaurants, apartment complexes, and residential developments. Many of these foreclosures involved the appointment of receivers. Several of these foreclosures involved condominiums under construction and residential developments under construction, with accompanying issues regarding pre-sale deposits, simultaneous breach of contract actions by contract purchasers, and defenses and counterclaims alleging various deficiencies in the lender’s loan administration.
Represented clients in a substantial number of CMBS foreclosures and receiverships, some including bad boy guaranty claims, and works regularly with special servicers in such foreclosures.
Represented clients in distressed loan purchases and sales, foreclosure judgment purchases and sales, and foreclosure bid assignments.
Represented clients in the drafting of portions of Section 702.10 Florida Statutes, the show cause foreclosure statute, and regularly uses this somewhat streamlined foreclosure procedure in commercial foreclosures.
Represented clients by handling foreclosures and workouts on citrus processing facilities and citrus groves, and foreclosing both traditional mortgages and an equitable lien on a horse farm and the horses thereon.
Represented the Florida Bankers Association on proposed legislation affecting the financial institutions industry, particularly as it relates to mortgage foreclosures, proceedings supplementary, and judgment enforcement.
Represented receivers in connection with commercial mortgage foreclosures and have, from time-to-time, represented receivers in commercial workout matters.
Represented financial institutions in the negotiation and enforcement of workouts, forbearance agreements, soft notes, and short sales.
Represented clients in reforeclosures, including some contested reforeclosures, and one contested matter in which the reforeclosure of certain judgment liens was prosecuted more than ten years after the original foreclosure.

Secured Financing Litigation

Represented clients in Revised Article IX sales, both judicial and non-judicial, as well as various self-help repossessions and judicial replevins of personalty, including jet and other aircraft, automobiles and trucks, furniture inventory, restaurant equipment, store inventory, medical equipment, flight simulators, livestock, live birds, crops, furniture, fixtures, and heavy equipment.
Represented clients in several automobile dealership repossessions, both judicial and non-judicial, with counterclaims, new and used automobile inventory, parts inventory, body shop equipment, signage, associated real estate mortgages, and guaranty claims.
Represented client in litigation involving “hell or high-water clauses” in leases.
Represented clients in Revised Article 9 private sales of LLC ownership interests and stock pledged to secure loans.

Commercial Landlord-Tenant Litigation

Represented client in a jury trial to evict a restaurant from a hotel property, with a counterclaim by the tenant.
Represented client in a jury trial to evict an automobile repair facility, with a counterclaim by the tenant.
Represented landlords in commercial evictions, including non-jury trials, evidentiary hearings, summary judgments, and counterclaims.
Represented tenants in commercial evictions.
Represented a landlord in the defense of a mandatory injunction action brought by a tenant seeking the removal of signage allegedly blocking street view of a restaurant.
Represented a landlord in the defense of an action by a tenant to enforce a restaurant exclusivity clause in a shopping center lease.

Real Estate Litigation

Represented clients in more than 30 contested real estate partition suits involving citrus groves, raw and improved land, non-jury trials, and evidentiary hearings.
Represented client in a boundary dispute and encroachment litigation involving expert testimony from several surveyors.
Represented clients in quiet title and ejectment actions.
Represented client in a jury trial where the seller of residential property was accused of failing to disclose flood damage to the purchaser.
Represented lakefront homeowners in litigation seeking the removal of a dock structure obscuring the view of a lake.
Represented a homeowner in an action by the homeowners’ association to force the removal of a large treehouse from a residence.

Financial Institutions Litigation

Represented financial institutions in non-foreclosure litigation, including post-merger shareholder litigation, replevins, judgment collection matters, proceedings supplementary, lender liability defense, class action defense, Consumer Leasing Act litigation, Fair Credit Reporting Act litigation, safe deposit box litigation, breach of trust, and breach of fiduciary duty litigation.
Represented lead banks in participation loans in negotiations, and in litigation with participant banks claiming breaches of fiduciary and other duties by lead banks in administration of loans.
Represented what is now Truist Bank, in a five-day trial in an action against E.F. Hutton & Company, Inc., alleging that Hutton had fraudulently misrepresented the creditworthiness of one of its clients, in consequence of which SunTrust Bank made a large business loan guaranteed by the Hutton client individually. The Eleventh Circuit’s decision is reported at E.F. Hutton & Company, Inc. v. Sun Bank, N.A., 926 F. 2d 1030 (11th Cir. 1991). This case is still widely cited for its agency law analysis and rulings.
Represented a large bank as the Plaintiff in a five-day jury trial in a state court action against a citrus grove borrower and two guarantors. The Defendants raised a variety of defenses, including tortious interference with business relationships and bad faith dealing on the part of the bank. Later instituted a proceeding supplementary, which included, in part, more than a dozen garnishments, the imposition of an equitable lien against approximately 15 business entities, including a spendthrift trust, in which one or more of the defendants had various degrees of ownership, the appointment of receivers in two separate actions brought to foreclose a mortgage and a security interest on the citrus grove, and the inspection of the private residence of one of the guarantors.
Represented a financial institution in various breach of trust suits brought by disgruntled beneficiaries seeking to recover for the trustee’s alleged breach of fiduciary duty in the administration of various large trusts.
Represented what is now Truist Bank in an action brought by a condominium association seeking to recover from the bank a special assessment for termite damage for a unit that the bank had recently acquired through a foreclosure. The association argued that the bank was liable for the assessment because the assessment was essentially prospective in nature, and had not come due until after the bank acquired the title to its unit. A.C. Condominium Association, Inc. v. SunTrust Bank, 815 So. 2d 720 (Fla. 5th DCA 2002)
Represented clients in automobile dealership-related litigation, including dealership status matters, lender liability defense, and several dealership repossessions.
Represented a bank whose employee had embezzled funds, including seeking imposition of equitable lien on real and personal property acquired with embezzled funds.

Commercial Litigation

Represented a financial institution in litigation brought by disgruntled shareholders of another financial institution that had been acquired through a merger. The Plaintiffs sought damages for breach of fiduciary duty and civil conspiracy, and imposition of an equitable lien on some stock.
Represented high-wealth individual clients in fraud litigation brought by a disgruntled investor. There was parallel litigation in two other states. The case was resolved favorably on behalf of our client.
Represented general partners and limited partnerships involved in providing low-income housing in litigation in federal court in Georgia. The suit was brought by a limited partner who sought the removal of general partners and damages for alleged financial improprieties. Case was resolved favorably for clients.
Represented a Fortune 50 company as replacement counsel in a case involving royalties allegedly due for sales of a turbine engine component. The case had been pending for 18 years, and was settled on terms favorable to our client.
Represented client in a six-day federal non-jury trial involving breach of a commercial contract for the manufacture of a satellite TV reception device. Lockheed Martin Corporation v. galaxis USA, Ltd., et. al, _______ F. Supp.2d _______, (M.D. Fla. 2002), 88 Fed. Appx. 389 (11th Cir. 2003).
Represented the Florida Democratic Party in a defamation action which had been brought in the Circuit Court in Polk County, Florida by the husband of a Republican candidate for the Florida House. The Plaintiff alleged that certain campaign materials distributed by the Florida Democratic Party during the campaign defamed him. The Florida Second District’s decision is reported at Dockery v. Florida Democratic Party, 799 So. 2d 291 (Fla. 2d DCA, 2001).
Represented business owners in business dissolution matters, involving litigation for accounting and judicial dissolution, and workout negotiations.
Represented a developer in a defamation suit against a website publisher, including counterclaim defense.
Represented clients in a variety of litigation matters arising in the agribusiness sector; handled foreclosures and receiverships on a variety of citrus grove properties; represented creditors in connection with foreclosures and workouts on citrus processing facilities; tried to conclusion a jury trial involving the allegedly defective painting of a juice extractor room at a citrus processing plant; has foreclosed both traditional mortgages and an equitable lien on a horse farm and the horses thereon; has also handled, and successfully settled, a major litigation matter involving the interstate shipment of diseased cattle, which litigation involved counterfeit branding issues; handled an appellate matter involving a challenge to Florida’s regulations on Equine Infectious Anemia, also known as Swamp Fever; and also handled a variety of partition suits involving agricultural property.
Represented a New York-based business whose bookkeeper had embezzled over $3 million, retired, and then used the money to purchase a quarter horse farm in Florida; sought an equitable lien on the horse farm and the horses, as well as an injunction to prevent the sale or transfer of the farm and the horses.
Represented a private school from which the principal was accused of embezzling more than $3 million and sought a judgment against the principal awarding damages for the full amount stolen and imposing an equitable lien on the principal’s homestead.
Represented clients in various product liability matters over the years, including a defective riding lawnmower design case, a defective airport people mover case, a defective elevator case, a defective residential electric meter case and a defective hotel electrical switchbox case. Also represented a major tire manufacturer in a jury trial of a tire-rim mismatch case in which the Plaintiff had been severely injured when the bead on the tire broke during mounting.
Represented the widow of the late NASCAR driver, Dale Earnhardt, in efforts to obtain a temporary injunction in Volusia County, Florida Circuit Court to prevent the distribution of autopsy photos of the late Mr. Earnhardt.

e-Discovery

Ed is a past member of Working Group 1 of The Sedona Conference, and has long had an interest in computer-related topics, having received his undergraduate degree in mathematics, and been an inaugural member of the Florida Bar’s Computer Law Committee. He was the first, and second, person to file suit electronically in the Florida 9th Circuit’s Business Court. He has been lecturing on e-discovery since 2003, and has spoken on the topic at three national level seminars, and several local seminars.

Related Professional Experience

Commercial Real Estate Finance Council (CREFC) - voting member and member of Special Servicer Forum
American College of Mortgage Attorneys, Fellow and Speaker at three recent Annual Conferences
Working Group 1 of The Sedona Conference, Past Member
Intercollegiate Debate - Four Years, Winner of More Than 50 Awards
Florida 9th Circuit Business Court, First and second person to file a case electronically

Published Works and Lectures

Florida Commercial Foreclosure Practice Notes for Thompson Reuters Practical Law, Author, March 2023
Florida Bankers Association, 8^thAnnual Commercial Lending School, Speaker, “Key Documentation and Loan Agreements – Nine Things You Need to Know,” January 2023
Trigild Receivership Desk Manual, Author, Florida Section, 2007-Present
American College of Mortgage Attorneys Annual Mortgage Law Summary, Contributor, Florida Section, 2021-Present
Florida Bankers Association, Speaker, “Loss Mitigation Statewide Zoom Seminar,” March 2022
Florida Bankers Association, 7th Annual Commercial Lending School, Speaker, “Loss Mitigation Seminar – Things You Should Know About Loss Mitigation,” February 2022
American College of Mortgage Attorneys (ACMA) 49^thAnnual Conference, Speaker, “Remedies Potpourri – Beyond Real Property Foreclosure,” September 2021
American College of Mortgage Attorneys (ACMA), The Abstract, Author, “The COVID-19 Pandemic Was Reasonably Foreseeable,” Spring 2021
American College of Mortgage Attorneys’ 48th Annual Virtual Conference, Panelist, “Loan Defaults and Two Not So Tough Acts to Follow,” September 11, 2020
Lexology.com, Author, “A Short Primer on Force Majeure and Related Defenses, Including Discussion on Their Applicability to the COVID-19 Pandemic,” April 28, 2020
Florida Bankers Association, 5^thCommercial Lending School, Speaker, “Update on Litigation and Transactional Matters,” March 5, 2020
Florida Bankers Association 3^rdand 4th Commercial Lending Schools, Speaker, “Lessons Learned from the Great Recession,” 2018 and 2019
National Business Institute, Speaker, “Collection Law from Start to Finish,” August 10, 2017
Florida Bar Real Estate, Probate & Trust Law Section – First Annual Attorney / Loan Officer Conference, Speaker, “Lessons Learned from the Great Recession,” July 26, 2017
25^thAnnual Central Florida Bankruptcy Law Association Seminar, Speaker, “Florida Judgment Collection,” March 5, 2017
Lorman Education Series Webinar, Presenter, “Florida Mortgage Foreclosures,” December 7, 2016
The Florida Bar Continuing Legal Education Committee, Webinar, Presenter, “Court Appointed Receivers Over Real Property: Planning for and Navigating the Worst Case Scenario,” October 26, 2016
American College of Mortgage Attorneys (ACMA) Annual Conference, Speaker, “Mediation vs. Arbitration,” September 22, 2016
The Florida Bankers Association Construction Loan Administration Conference, Speaker in Miami and Tampa, “Lender Liability Issues Arising in Construction Loan Administration,” December 2015
Trigild Lender Conference, Panel Moderator and Speaker, “Special Servicer Update,” October 2015
Akerman’s Guide to Doing Business in Florida: A Legal Guide for Out-of-State and Foreign Businesses, Author, “The Foreclosure Process,” 2011, 2013, and 2016
2014 Trigild Lender Conference, Panel Moderator, “Legal Lightning Round: Fast-Paced Updates on the Latest Legal Issues,” October 23, 2014
Trigild Lender Conference, Panel Moderator and Speaker, “Update on Issues for Special Servicers,” October 2013
ICSC Shopping Center Law Conference, Roundtable Leader, “Update on Receiverships,” October 2013
Frequently writes and lectures on all aspects of Florida foreclosure law, Florida judgment collection law, the Fair Debt Collection Practices Act, and locally and nationally on e-discovery issues.
The Florida Bankers Association Annual Conference, Speaker, “Update on Note Sales, Foreclosures, and Receiverships in Florida,” June 2013
Trigild Spring Lenders Conference, Panel Moderator and Presenter,“Best Resolution Strategies,” April 2013
National Business Institute, Speaker, “Florida Real Estate Lien Law,” March 2013
Lectures regularly on mortgage foreclosure and judgment collection law. Has lectured for The Florida Bar, National Business Institute, Lorman Education Services, PESI, and others. Has frequently been a panelist at the Trigild Lenders Conference, an annual conference for CMBS special servicers in San Diego, and a lecturer for various programs for the Florida Bankers Association, including the FBA’s “Weathering the Storm” conference on distressed loans and the economy.
Trigild Lenders Conference Exiting the Storm, Panelist, “Changing Times, Changing Tactics,” October 2012
ICSC Shopping Center Law Conference, Roundtable Leader, “Update on Foreclosures, Receiverships, and Note Sales, October 2012
National Business Institute, Speaker, “Real Property Foreclosure: A Step-by-Step Workshop,” March 6, 2012
Florida Chamber Foundation, Future of Florida Forum, Moderator, “A Focus on Florida’s Mortgage Foreclosure and Property Tax Challenge,” September 2011
Trigild Lenders Conference Exiting the Storm, Panelist, “Changing Times, Changing Tactics,” October 2011
Trigild Deskbook Guide, Co-Author, Florida-specific portions of “Deskbook Guide to Receivership & Foreclosure,” 2009-2022
ICSC Shopping Center Law Conference, Panelist, “A Cornucopia of Foreclosure,” October, 2011
Florida Bar Construction Law Committee, Presenter, “Construction Issues for Distressed Assets and REO,” April 2011
Commercial Lending Review, Co-Author, “Commercial Loan Recovery 101: How to Obtain Maximum Returns,” May-June 2009
And many more. Ed Foster has lectured at a variety of seminars since 1989.

Affiliations

The Florida Bar, Business Law Committee, Member; Trial Lawyers Section, Member
Orlando Science Center, Board of Trustees, 1993-2009; Past Chairman of the Board, 2006-2007
Central Florida Inns of Court, Master, Chair of Elder Law Project Committee
The Florida Bar, Computer Law Committee, Inaugural Member, Past Member
Orange County Bar Association, CLE Committee, Past Chairman, 1992-1997
American College of Mortgage Attorneys, Member, 2017 to Present

Honors and Distinctions

The Best Lawyers in America, 2008-2024, Listed in Florida for Commercial Litigation, Litigation – Banking and Finance, Litigation – Bankruptcy, Litigation – Real Estate, Mortgage Banking Foreclosure Law
Chambers USA, 2006-2020, Ranked in Florida for Litigation: General Commercial
Super Lawyers Magazine, 2007-2023, Listed in Florida for Business Litigation
The Best Lawyers in America Listed as “Lawyer of the Year” in Orlando in 2016 for Banking and Finance and in 2011 for Banking Law
Florida Trend’s Legal Elite 2013, Listed for Commercial Litigation
The George C. Young American Inn of Court, Recipient, Judge James G. Glazebrook Memorial Outstanding Member Award, 2019
Martindale Hubbell - Rated AV Preeminent