Florida Foreclosure Defense Lawyers Blog

Jacksonville Foreclosure Attorney: Have I been subject to Predatory Lending?

Mon, 14 May 2012 08:39:55 -0500

Predatory Lending: unfair, deceptive, or fraudulent practices of mortgage lenders during the loan origination stage. Predatory Lending is separate and apart from Predatory Mortgage Servicing, which occurs post origination.

Predatory lending encompasses a wide variety of abusive acts by the individuals involved in originating a loan. There is not an actual legal definition in the US. Predatory lending practices may include refinancing that causes the borrower to lose the benefit of special terms in the loan, excessive or hidden fees, mandatory arbitration clauses, inadequate disclosures, failure to verify borrower's financial information, etc.

No single act of abuse will necessarily rise to the level of predatory lending. If the facts and circumstances surrounding the loan, taken as a whole, rise to the level of predatory lending you may be entitled to relief from your mortgage. In a case where predatory lending has been established by the homeowner, the court can cancel the debt or modify certain terms of the loan.

The Florida Fair Lending Act protects Florida consumers from abusive mortgage lending. Under the Florida Fair Lending Act, a lender may "forfeit the entire interest charged in the high-cost home loan or contracted to be charged or received, and only the principal sum of such high-cost home loan can be enforced in any court in this state, either at law or in equity." Fla. Stat. 494.00796 (2011).

The Truth and Lending Act (TILA) is a Federal Act that basically requires full disclosure by the lender of all terms and figures, but primarily only protects borrowers refinancing their primary residence. A borrower can bring a suit up to one year after the loan's origination, and up to three years if facing foreclosure. A violation of TILA can lead to the rescission of the loan transaction. Damages due to a borrower for a volition cannot exceed $2,000 and can only recover for one set of damages even where there are been multiple violations.

If you have concerns that the practices of the individuals that originated your home mortgage loan rose to the level of predatory lending contact a Jacksonville Foreclosure Attorney.

Clay County Foreclosure Defense Attorney: Divorce and Foreclosure

Fri, 04 May 2012 08:14:17 -0500

One big trigger of Foreclosure in Florida that we often see is a Florida Divorce or the breakup of a long-term relationship. Many couples purchase homes together while relying on the source of 2 incomes in order to afford the home. When that couple separates, it becomes, very difficult to continue to make the mortgage payments. Too often, one or the other actually makes it even more difficult by having animosity against the other and refusing to work together. That is why it is important to consult a Clay County Divorce Attorney and a Clay County Estate Planning Attorney. Together, they can help you protect yourself in the best possible way. In instances such as these, there are Florida Laws that protect the interests of both parties. If you are facing foreclosure after the end of a long-term relationship, contact a Clay County Foreclosure Defense Attorney who can work with a Clay County Divorce Attorney to help you through the mess.

Regardless, 3 facts remain the same:
1. If you are facing foreclosure, you will still have to work together in order to save the home.
2. Both parties will remain liable for the debt unless one party is able to re-finance the loan in his or her own name.
3. If there is a divorce decree stating one party will be financially responsible for the mortgage then fails to make the required payments, the divorce decree can be enforced in Court.

Jacksonville Foreclosure Defense Attorney: What happens to the Second Mortgage when the First is Foreclosed on?

Thu, 03 May 2012 08:14:00 -0500

Today, many people have a First and Second Mortgage on their residential home. When the homeowner falls behind on the mortgage payments and the home is foreclosed on by the primary mortgage company there can be many questions regarding the second mortgage. So what happens to a second mortgage after the first mortgage is foreclosed on and the property sold?

As many would think, the sale of the property by the first mortgage company does not automatically take care of the second mortgage. When the property is sold, the property can be sold free and clear of the second mortgage, but this does not mean the original homeowner is also free of the second mortgage. You will still remain liable for the remaining balance and the second mortgage company can sue you in order to collect.

What are your options?
1. You can try to workout a settlement agreement with the second mortgage.
2. File bankruptcy- Bankruptcy can help you settle other debts you may have including any deficiency remaining after the first mortgage was foreclosed upon, credit card debt, medical debt, etc. See Jacksonville Bankruptcy Lawyer Blog for more information.
3. If a foreclosure judgment has not already been entered, you can try to negotiate a Deed-in-Lieu of Foreclosure. In most situations, the Frist Mortgage will try to settle with the Second Mortgage.

Depending on your specific financial situation and where your foreclosure stands, there may me other options still available to you. Contact a Jacksonville Foreclosure Defense Attorney and an

Mandarin Foreclosure Defense Attorney: Is a Loan Modification Right for me?

Wed, 02 May 2012 09:05:28 -0500

If you are behind on your mortgage payments and trying to decide if a Loan Modification is right for you, you must weigh the good benefits with the bad. A Loan Modification will add all your missed payments, together with all late charges and interest, into a modified loan with a new principle balance. This will allow you to get back on track. However, there are some key disadvantages to a Loan Modification that you should take into great consideration. Here are some key benefits and disadvantages for thought:

Benefits:
1. Avoids Foreclosure.
2. Lower interest rate (typically).
3. Convert an adjustable rate mortgage (ARM) into a fixed interest rate.
4. More affordable monthly payments (typically).
5. Extend the life of the loan.

Disadvantages:
1. Higher Principle Balance.
2. Negative Equity: The loan balance is more than the home is worth (typically).
3. You may be required to waive legal rights from the original mortgage.
4. You might agree to a modification you actually cannot afford and loose your home anyway.

The loan modification process is a long and drawn out process. These are only a few benefits and disadvantages. There are many more that can vary significantly based on the circumstance. Do not face foreclosure or loan modification alone. Contact a Mandarin Foreclosure Defense Attorney who may be able to point out other key benefits or disadvantages that you are unable to see. Many times a homeowner is so emotionally involved they are unable to see and evaluate their financial circumstance with a level mind. Do not set yourself up for failure. With they aid of a Mandarin Foreclosure Defense Attorney, you are more likely to make the decision that is best for your future.

St. Johns Foreclosure Defense Attorney: What does the Recent Bank Settlement mean to residents of St. Johns County?

Tue, 01 May 2012 08:50:07 -0500

A common question currently being asked by homeowners in foreclosure in the St. Johns County and Jacksonville Florida area is what does the Recent Bank Settlement mean for me? As I have to answer over and over again, we do not yet know exactly what it means. In addition, we do not expect very much relief for most homeowners in the upcoming months. Yes, the settlement states our nation's 5 largest banks will pay $26 Billion and allows for up to $20,000 to be paid to each borrower. But the success of the program very much depends on what Washington does. We have watched a few other government programs over the last few years give little of the promised relief.

One affect of the settlement that we have already begun seeing is the increase in foreclosure filings and the pushing of foreclosure cases through the court system. We have also found more banks trying to resolve current foreclosure cases with modifications.

We expect that relief will only be applicable to a very limited group of people. For example, Bank of America will offer modifications with principle reductions to only those loans serviced and owned by Bank of America. This does not mean that every loan owned and serviced by them will be offered a principal reduction. As we all have come to realize, the originating lender rarely still owns the majority of loans out there.

It is just as important today to have a St. Johns or Jacksonville Foreclosure Defense Attorney on your side as it was before the Bank Settlement. If you want to keep your home, a Florida Foreclosure Defense Attorney may be able to help you obtain one. If obtained, a Florida Foreclosure Defense Attorney may help you decide if it is in your best interest. Contact a St. Johns Foreclosure Attorney today.

Atlantic Beach Foreclosure Defense Attorney: Is Bankruptcy the Solution to my Foreclosure?

Fri, 27 Apr 2012 08:15:26 -0500

As an Atlantic Beach Foreclosure Defense Attorney, I have seen time and time again how Foreclosure Defense and Bankruptcy go hand in hand. By retaining an Atlantic Beach law-firm that is familiar with both Foreclosure Defense and Bankruptcy, the attorneys will be able to better help you decide which option is best for you. If your goal is to try to keep the property by obtaining a loan modification, then a Foreclosure Defense attorney may be right for you, but in some cases a bankruptcy may offer a viable solution. However, what if you are not approved for the loan modification or are not happy with what you are approved for? Then the firm will already be familiar with you and your financial situation and will be in the best position to help you choose the next course of action. Which may include a bankruptcy down the down. This is just one scenario where it might be helpful to retain a law firm experienced in both Foreclosure Defense and Bankruptcy.

An Atlantic Beach Bankruptcy Attorney will also be able to explain to you the advantages and disadvantages of a bankruptcy. Often times, it is better for someone to go ahead and file bankruptcy in order to try to keep there home. But you need to make sure you fully understand what filing bankruptcy does to the foreclosure action. Many homeowners are under the impression that filing bankruptcy will stop their home from being foreclosed. Bankruptcy only puts a "stay" on the foreclosure for the time that the bankruptcy claim is being administered in court. At some point after the court has adjudicated the bankruptcy claim, the homeowner will be responsible for making their mortgage payments or the lender will be allowed to foreclose on the home. Bankruptcy can help you to affectively deal with the debt from the mortgage, but may not be the best option for your goals right away.

It is important when defending an Atlantic Beach Foreclosure Lawsuit to know the defenses and options available to you and when and how to assert those defenses. Some bankruptcy lawyers are untrained in foreclosure lawsuits and may not be aware of the defenses that could keep your lender from foreclosing on your home. If you are considering defending your foreclosure and/or bankruptcy, contact an Atlantic Beach Foreclosure Defense Attorney and an

Orange Park Foreclosure Defense Attorney: What do these terms mean?

Thu, 26 Apr 2012 08:15:23 -0500

If you have been recently served with a foreclosure action or are currently in the middle of foreclosure, you may not understand some key terms. Not understanding the language or words used to attack your ownership position can make it difficult to properly deal with the foreclosure. That is why it is important to have an Orange Park Foreclosure Defense Attorney on your side. An Orange Park Foreclosure Defense Attorney can help explain these terms and context of the words and documents as well as the foreclosure process to you. At the very least, an Orange Park Foreclosure Defense Attorney can help protect your rights and help you make the right decisions based on your objectives and concerns. If you live in Orange Park or any of the surrounding areas of Jacksonville and are facing foreclosure, contact an Orange Park Foreclosure Defense Attorney.

Here are some terms you should become familiar with. This is not an all-encompassing list of terms associated with a Florida Foreclosure Lawsuit. You should discuss any terms that you do not recognize with an Orange Park Foreclosure Defense Attorney who will review your foreclosure lawsuit and discuss your options in detail.

A Foreclosure is a remedy in equity that allows the lender to seek a judicial order allowing for the sale of your property when the terms of the note are not complied with.

A Note is the financial instrument that creates an obligation for you to pay over time for the money you borrowed.

A Mortgage is a document that gives the lender the right to initiate foreclosure and sell your property if the Note is not paid. It is a security instrument.

A Plaintiff is the party filing the Florida Foreclosure Lawsuit, typically this party is the lender, and is often referred to as the Mortgagee.

A Defendant is the party defending the Florida Foreclosure Lawsuit, typically this party is the borrower, and is often referred to as the Mortgagor.

An Assignment is the transfer of the Mortgage to another party, most often done by sale of the mortgage.

An Assignor is what the lender is called in an assignment of a Mortgage.

An Assignee is what the company that buys the mortgage is called in an assignment of a mortgage.

A Deficiency is the difference between the amount owed on the mortgage and what the bank collects from the sale of the property.

A Deficiency Judgment is a judgment approved by a Judge during a legal proceeding (usually after the foreclosure action has ended) for the deficiency amount incurred from the sale of the property.

A Final Judgment is the written determination of a mortgage foreclosure by the Judge presiding over the foreclosure case. Also known as the final decision. A sale date is set at this time.

Ponte Vedra Foreclosure Defense Attorney: Minnesota Attorney Sanctioned for Frivolous Lawsuits

Wed, 25 Apr 2012 09:13:28 -0500

A Minneapolis, Minnesota attorney was sanctioned recently for making what the Federal Judge calls baseless claims. In one of nearly thirty lawsuits citing "show-me-the-note" defenses, U.S. District Court Judge Patrick Schiltz ordered William Butler to pay $50,000 to the Court and another undisclosed amount to the Opposing Counsel and Co-defendants.

Judge Schiltz found that Butler made a business of these show-me-the-note actions, where a Plaintiff files a suit claiming that because the entity that holds a mortgage is different from the one who holds a note, the mortgage on the home and any subsequent foreclosure would be invalid. The Courts in Minnesota have addressed this argument in the past and each time it has been rejected, yet Butler continued to advertise this service to clients over the Internet. Judge Schiltz justified the sanction due to the "extraordinary, egregious and brazen nature of Butler's conduct" by "exploiting clients financially" and mentioned that "multipled by the number of cases he has brought, it indicates he has earned tens (or even hundreds) of thousands of dollars" by this method.

If you are a homeowner in danger of foreclosure, don't fall prey to the many schemes that give homeowners false hope. Make sure to work with an experienced Foreclosure Defense Attorney by inquiring about their past success. Contact Ponte Vedra Foreclosure Defense Attorney today.

Jacksonville Beach Foreclosure Defense Attorney: Foreclosure Defense Case Dismissed with Prejudice

Mon, 23 Apr 2012 12:33:15 -0500

Ever since the bust of the residential real estate market, Banks have fought an uphill battle to prove "standing" - the recognition that one has suffered a wrong personal to his or herself such that a legal case can be brought. Even where standing has not been proven, many foreclosures have forged ahead as Courts have seemed to ignore the cries of Florida Foreclosure Defense Attorneys and their clients. Over the last couple of years, it does appear that this trend is beginning to change. Consider the case of Deutsche Bank National Trust Company v. Lippi.

The Court began the Order noting that it had given Plaintiff two different occasions to amend its Complaint to allege or show how they have the right to bring the action. Plaintiff argued that Deutsche Bank as the trust company was holder of the note and entitled to bring the claim as a real party in interest for GSAMP 2006-FMI. The Court said that not a single pleading, exhibit or any allegation in the amended complaints showed that connection. The Court said it would not require the Defendant to answer a complaint where Plaintiff failed to show standing and to be the real party in interest.

The court also found the Plaintiff and counsel frustrated the fair administration of justice. Mainly, Plaintiff filed their second amended complaint 10-days late, failed to show how GSAMP was an actual entity that was a real party in interest even though the court asked them on numerous occasions to do so, filed documents with the court but failed to include Defense counsel on the service, and filed multiple untimely and unfounded motions for summary judgment.

If you fear you may face foreclosure, don't go into it alone. Consult with a Jacksonville Beach Foreclosure Defense Attorney as soon as possible so that you can understand your options and risks.

Jacksonville Foreclosure Defense Attorney: What is a Deficiency Judgment?

Fri, 20 Apr 2012 08:55:43 -0500

defA common question in regards to Florida Foreclosure defense is whether a short sale, Deed-in-Lieu of Foreclosure, or another option is the right fit for you. To put it simply, it depends on the particular position of the homeowner. A key consideration is whether or not the homeowner is prepared to handle a deficiency judgment. When a deficiency judgment is granted, you are expected to pay the amount still owed on the home after it is sold. The effect of receiving a deficiency judgment (or not) differs respectively, but the bottom line is that the homeowner usually must still come out of pocket or face the risk of additional exposure related to the loan in the future.

If the Bank does not waive the right to seek a deficiency judgment the homeowner will still be responsible for the difference between the sale price (or fair market value of the property) and the mortgage balance. If the deficiency judgment is waived, that difference will be "forgiven." If the debt is forgiven, the homeowner may still incur responsibility for the taxes on the debt that was forgiven by the Bank. Currently there are some circumstances when this forgiveness of debt income is not counted by the IRS, but that provision in the law is set to expire on 12/31/2012. That being the case, it is still usually best to hold out for a waiver of the deficiency, or a partial payment of the deficiency in exchange for a more favorable report to credit bureau's.

If you are having trouble paying your mortgage, or are already in foreclosure, deficiency judgments are just one-way a Jacksonville Foreclosure Defense Attorney can help. There are many possibilities in Foreclosure Defense that depend on the facts and circumstances of each case.

Clay County Foreclosure Defense Attorney: My House Was Foreclosed Without Notice - Now What?

Tue, 17 Apr 2012 15:57:04 -0500

In Clay County and around Florida, Foreclosure lawyers often see homes being foreclosed upon without notice to the Florida homeowner. This is a troubling situation, but it does happen. One Florida resident moved out of his Florida home, began renting it, and moved in with a relative in a different state. Some months later, the rental income stopped coming in and the mortgage began to go unpaid. Some time later, a neighbor informed the man that his home had been outfitted with a "For Sale" sign. He was never served with paperwork and the property was eventually sold.

This can happen in Florida as there are many Florida residents who have second homes. In Clay County and around Florida the law requires lawsuits be served on all defendants to make them aware of suits against them. If someone named in the suit cannot be found, the person serving process has to make diligent search efforts to find you. But if a homeowner is out of state, and people do not know where to find you or how to serve you, the bank can ask to serve you in different ways. At the very least, the mortgage company should know your whereabouts, especially if, like this man, you are anticipating foreclosure and had been in communication with the bank about your location. At the end of the day, if they are unable to locate you, the bank may be able, with court approval, to serve process by publishing notice in a local newspaper.

Contact a Clay County Foreclosure Defense Attorney to help you understand how the process works and what your options are.

Mandarin Foreclosure Defense Attorney: New Case Expands on Issues of Standing in Florida Foreclosures

Thu, 12 Apr 2012 08:15:56 -0500

Mandarin Foreclosure Defense Attorneys have argued, mostly unsuccessfully, that mortgage servicers should not be able to foreclose on homes when their standing is on behalf of a trust. In the alternative, the servicer can provide evidence of the trustee or agents' ratification - but this is the rare case. Instead, servicers have fallen into the bad habit of claiming authority to act on behalf of the trustee without providing any independent proof.

On April 4, 2012, the Florida Fourth District Court of Appeal handed down a case that supports the position that Mandarin Foreclosure Defense lawyers have been arguing with Elston/Leetsdate, LLC v. CW Capital Asset Management LLC, Case No. 4D11-3151 (Fla. 4th DCA 2012).

The court distinguished that, in the mortgage foreclosure context, standing is broader than simple ownership of the beneficial interest in the note and that a servicer may be considered a party in interest as long as the trustee joins or ratifies the action. In Elston, the caption of the verified complaint states the action was brought by CW Capital Asset Management, LLC "solely in its capacity as special servicer on behalf of U.S. Bank, N.A." CW simply alleged, and verified as true, that it had been authorized by the Trust to foreclose as agent and special servicer for the Trust. But CW did not file any evidence, affidavit or other documents, supporting this allegation. The Court noted that, although CW's complaint was verified, it was verified by the "SVP" for CW - not by the real party in interest, the trust. CW relied on nothing more than its own allegations and affidavit to support its argument that it had standing to sue on behalf of the trust. The Court held this evidence as insufficient to prove authorization to sue on a trust's behalf.

The Elston case is sure to add to Florida Foreclosure Defense Attorneys' resources. If you are in foreclosure in Mandarin, Florida, contact a Mandarin Foreclosure Defense Attorney.

Orange Park Foreclosure Defense Attorney: If a Landlord is in Foreclosure, Do I Still Pay Rent?

Wed, 11 Apr 2012 08:15:54 -0500

As many Orange Park, Florida residents have come to find out, when the housing market is down sometimes it is just easier to pay rent. While the number of people renting has gone up, the cost of home ownership has also risen. That rising cost puts pressure on the landlords that provide living to renters, and many times they end up in foreclosure like so many others. But if my landlord in is foreclosure do I still have to pay rent? The answer can often be, yes.

This is because the contract that you hold with the landlord is separate and distinguishable from the mortgage that is being foreclosed upon against the landlord. In fact, if you (and all the renters like you) just stopped paying rent, it would be unlikely a landlord could emerge from the foreclosure, especially if rental property is a large source of his or her finances. As long as your landlord continues to meet his or her obligations under the lease agreement, you are expected to continue to meet your obligations as the renter as well.

If you are a homeowner and you fear you may be subject to Foreclosure in Florida, there may be many potential options available to you. Contact a Orange Park Foreclosure Defense Attorney today for a free review of you specific situation as no two situations are alike.

St. Johns County Foreclosure Defense Attorney: How Can I Prevent a Judicial Sale of My Home?

Tue, 10 Apr 2012 08:15:50 -0500

Even if you have already been through a foreclosure and have had your home scheduled for a judicial sale, there are still some things you can do to protect your home. There are specific requirements under Florida Statutes that must be met before one of these sales can take place. These defenses, while they may not permanently get you the keys to your home, can at least prevent the sale from immediately taking place.

Under Florida Statute Section 45.031, a judicial sale of a foreclosed home must follow specific guidelines. First, the statute requires notice of the sale to be published once a week for two weeks in a local newspaper in the county where the home is located. The statute continues on to require a list of certain things that must be included in the notice of sale, such as a description of the property to be sold, the time and place of sale and the name of the clerk making the sale. While this is not an avenue to retain your home, Florida Statute 45.031 will ensure that at least the sale is performed properly.

If you are in danger of or are currently facing foreclosure, be sure to consult with a St. Johns County Foreclosure Defense Attorney soon.

Ponte Vedra Foreclosure Defense Attorney: Can a Bank Bring a Foreclosure in Prior to Discovery Being Completed?

Mon, 09 Apr 2012 08:45:49 -0500

As a general rule, litigants are entitled to complete discovery before a Court can enter Summary Judgment of Foreclosure in a bank's favor. Put another way, a party should see all relevant documents in the opposing parties control that could have a bearing on the suit before a Court enters a finding in favor of that party. This makes sense, as there could be something within those documents that contradicts what the party says in Court. There has been a trend in Florida Courts, however, to grant Summary Judgment of Foreclosure prior to the Bank having to provide the borrower with critical paperwork through discovery. A recent decision by the Florida Fourth District Court of Appeal addressed this very issue.

In the case of Osorto v. Deutsche Bank National Trust Company, the Court found that Summary Judgment cannot be granted where a homeowner is seeking discovery that may be pertinent to the issues being litigated. This is a clear statement from the Florida Courts that not only is discovery important to the disclosure of information, but it can also be dispositive of a case. Thus, the pendency of discovery should prevent a Court from entering Summary Judgment of Foreclosure in the Banks favor. Read the entire opinion here: Osorto v. Deutsche Bank National Trust Company.pdf.

If you are facing foreclosure in Ponte Vedra or are behind on payments, consulting a Ponte Vedra Foreclosure Defense Attorney soon is recommended.