Articles Posted in Foreclosure

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home-in-foreclosure-thumb-250x166-2941When the foreclosure crisis began, many Jacksonville Foreclosure Defense Attorney’s argued that a mortgage foreclosure action must be brought within five years after the borrower defaulted on their mortgage payments. However, time and time again the Foreclosure Judges in the Jacksonville and surrounding areas ruled that mortgage foreclosure actions were not barred by Florida’s five year statute of limitations as defined by Florida Statute 95.11(2)(c). Yet, the Florida Supreme Court had not spoken on this matter until now.

The Florida Supreme Court has finally spoken and confirmed that Florida’s five year statute of limitations, which is a question of great public importance, defined by Florida Statute 95.11(2)(c) does not apply to mortgage foreclosure actions. The decision came on November 3, 2016 in U.S. Bank v. Bartram; SC14-1265 (Fla. Nov. 3, 2016). The certified question before the Florida Supreme Court answered is as follows:

Does acceleration of payments due under a residential note and mortgage with a reinstatement provision in a foreclosure action that was dismissed pursuant to Rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit?

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Police are currently investigating a loan modification and debt consolidation business in Florida. The owners supposedly presented themselves to clients as attorneys but were not licensed attorneys at all. The Boca Raton company claimed to be an industry leader in foreclosure and pre-foreclosure litigation in South Florida.

According to authorities, the two men convinced homeowners to stop paying their mortgages and to ignore notices from their mortgage holders to let them negotiate with the lenders. The scheme tricked homeowners into paying high upfront monthly legal fees for legal services that were not performed or supervised by a Florida attorney.

Florida Attorney General Pam Bondi has also filed a lawsuit against these networks of fraudulent attorneys for the unlicensed practice of law.   Bondi claims the network, which held itself out to be a group of 100 attorneys, posed as lawyers to take advantage of vulnerable clients.   The people behind the scheme also duped inexperienced young attorneys into working for them, and the defendants even used real names of actual Florida attorneys without their knowledge. Continue reading →

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home_under_waterMany people over the last several years have been forced to file bankruptcy because they faced foreclosure. In many of these bankruptcies, the homeowner chose to surrender their home because it did not make financial sense to try and keep it. Years later they find out that the home is still deeded in their names and are understandably shocked as they further learn they have also remained financially responsible for the property taxes, homeowner associations dues, etc. associated with that home. This is because even though you elected to surrender your home through bankruptcy and receiving the discharge relieved you from the liability of the mortgage debt, the bankruptcy did not automatically take the property out of your name and put the deed to the home in the name of your mortgage holder. So what can you do? The answer to this question is not going to be what you want to hear.

There are 2 ways in which the deed of your surrendered home can be transferred out of your name. The first is for your mortgage holder to agree to a deed-in-lieu of foreclosure. A deed-in-lieu of foreclosure is where the bank agrees to take back possession of the home and you simply sign the deed over to your mortgage holder and provide them with the keys. In order to get a deed-in-lieu of foreclosure, you must reach out to your mortgage holder and ask them if they will agree to a deed-in-lieu. If your mortgage holder refuses to accept a deed-in-lieu, your only other option is to wait for your mortgage holder to foreclose on the home. When your mortgage holder begins the foreclosure process, it is important to make sure they are only foreclosing “in rem.” This means they are only asking the court for possession of the home and not suing you personally for the debt, since the debt was discharged through your bankruptcy.

Unfortunately, it may take your mortgage holder years to begin foreclosing on the home. It is important to know that as long as the property remains deeded in your name, you will remain responsible for the property taxes, homeowner association dues, the upkeep of the property, etc. If it does take your mortgage holder years to foreclose, it could also mean you will have to wait even longer after you received your discharge in order to purchase a new home. This is because the foreclosure judgment will most likely be reported on your credit report.

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The most common type of summons received after filing bankruptcy and obtaining a discharge is a foreclosure summons. When received, it can be very alarming. You filed bankruptcy, surrendered a home, and received a discharge. You moved out of the home and on with your life thinking you are no longer liable for the home. However, when you elected to surrender the home in your bankruptcy petition, this only took care of your financial responsibility regarding the home. The bankruptcy did nothing about the deed for the home being in your name. Therefore, the bank still has to foreclose on the property in order to get the property out of your name and to take legal possession of the property. When a foreclosure is purely to take legal possession of the home and not for any money damages, it is called an in rem foreclosure action. You do not have to answer the summons unless you believe you were incorrectly served or they are suing for money damages as well. The mortgage holder must serve you because you are an interested party due to your name being on the deed.

If the summons you received after bankruptcy is for a credit card or another kind of debt you believe was discharged in bankruptcy, then you need to respond to the summons stating that the subject debt was part of a bankruptcy. Before doing so, make sure the debt was properly listed on your bankruptcy schedules and it is a debt that can be discharged. If it was properly listed on your schedules and you received a discharge, then assert this in your response/answer to the summons. Once you show the debt was discharged, the action should be dismissed.

If you are unsure of what type of lawsuit you have been served with or whether the debt was properly included in your bankruptcy, you should consult with an experienced bankruptcy attorney. A simple review of the summons, accompanying complaint, and your bankruptcy petition by an attorney can help you determine what action, if any, you need to take. Contact the Law Office of David M. Goldman, PLLC by calling (904) 685-1200 to speak with an attorney today.

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home-in-foreclosure-thumb-250x166-2941A short sale can be a great solution for a homeowner who is having trouble making his or her mortgage payments. A short sale is when a bank agrees to accept a sale price that is less than the full mortgage amount owed in order to avoid foreclosure. However, homeowners that complete a short sale are often surprised to find out months or even years later that their lender is seeking a deficiency judgment against them.

What is a deficiency judgment? Since the sale price is less than the full amount owed on the mortgage, the difference between the total debt owed and the sale price is known as the deficiency. In some states, the lender can seek a personal judgment against you after the short sale to recover this deficiency amount. If this judgment is entered against you, then the lender may collect this from the borrower by garnishing wages or levying the debtor’s bank account; Florida is one of these states.

The good news is there are ways to avoid a deficiency judgment after a short sale. One of the best methods is to negotiate a full waiver of the lender’s right to seek a deficiency judgment while negotiating the short sale with your mortgage holder. If the lender agrees, then the provision will be included in your short sale agreement. The agreement must state the transaction is in full satisfaction of the debt and that the lender waives its right to the deficiency.

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conversionsFlorida’s second district Court of Appeals recently held in Miltiades v. U.S. Bank N.A., 40 Fla. L. Weekly D1446b, that a trial court erred in substituting a bank as party plaintiff in a mortgage foreclosure action because the bank failed to establish standing. This is a significant ruling because it places the burden on the plaintiff bank to prove they actually posses the ability to foreclose on a home.

What is standing and why does it matter when it comes to foreclosure? Legal standing is a term that means a person or entity has the ability to bring an issue before a court. Generally to have standing, the party bringing the suit must have sustained or will sustain injury or harm that the court can remedy. For example, two people enter into contract together to provide cash for a service and one party fails to perform as agreed. Both parties to the contract would have standing to sue each other for a breach of contract because both would be harmed by the other’s non-performance. But a third person not affected by the contract would not have standing to sue for breach of contract.

Why did standing become an issue in this case? In most instances, lenders sell their promissory notes and mortgages to bigger institutions rather than keeping and servicing the mortgages themselves. The court in Murray v. HSBC Bank USA, 157 So. 3d 355 (Fla. 4th DCA 2015) held that an entity claiming to be a holder of a promissory note must prove each transfer of the note in order to enforce it. Therefore, in Miltiades v. U.S. Bank N.A. the court held U.S. Bank N.A. did not have standing because it did not possess the promissory note as a holder.

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FORECLOSURE-large570If you are deep in debt and facing the foreclosure of your home, bankruptcy might be able to help you save your home or relieve you of the debt depending on which type of bankruptcy you declare.

For those not familiar with foreclosure, foreclosure usually begins when a homeowner falls significantly behind on his or her mortgage payments. The lender then begins the legal process within the court system of obtaining a Judgment of Foreclosure, which allows the home to be sold through a public auction. The process is usually lengthy and includes many steps.

Since the foreclosure process generally does not begin until a homeowner has missed several payments, the owner may have some time to try alternative methods to foreclosure first. Alternative methods include but are not limited to a modification, loan forbearance plan, short sale, or deed in lieu of foreclosure. If these methods have already failed, it may be time to consider bankruptcy.

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If you are behind on your mortgage payments, and think you can no longer afford your home or are simply ready to walk away and start over, a Short Sale might be a good option for you. A Short Sale is when you sell your home for the highest value possible notwithstanding that the proceeds from the sale will be less than your outstanding mortgage balance. The biggest short fall of a Short Sale is that you remain liable for the deficiency, which is the difference between the proceeds from the sale and your mortgage balance. However, in many Short Sale negotiations, this deficiency can be negotiated away. Thus, leaving you without any further liability for the home or mortgage.

The Short Sale Process is simple and is as follows:

– Begin the Short Sale process by hiring a realtor to list the property for sale as a Short Sale. Make sure the realtor you choose is familiar with the Short Sale process.

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Thumbnail image for repossession.jpgWhen a mortgage lender forecloses on a home, the total debt owed by the borrower to the lender often exceeds the foreclosure sale price. The difference between the sales price and the total debt of the borrower is called a deficiency.

In many states, a mortgage lender can receive a personal judgment against the borrower to recover the deficiency owed. Once the lender receives a judgment on a deficiency, the lender can collect the amount from the borrower by levying the borrower’s bank account or garnishing the borrower’s wages.

In some states the mortgage lender can foreclose without going to court. In Florida, foreclosures are judicial, which means the lender must petition for foreclosure through state court. Lenders in Florida may obtain a deficiency judgment as part of the foreclosure action if the borrower was personally served with the foreclosure complaint. The lender may also file a separate lawsuit against the borrower for a deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.

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