Foreclosure Case Dismissed Without Prejudice

A mortgage foreclosure trial can be over in 30 seconds if the Plaintiff is not allowed to have witnesses or exhibits.  Court procedures come with deadlines, and if the lender does not turn in their witness list or evidence on time, the lender might not get to use them…and that could result in a foreclosure case dismissed without prejudice. Having a case dismissed ‘without prejudice’ does not necessarily mean the fight is over… ‘without prejudice’ means the Plaintiff can re-file a suit on the same claim. A home foreclosure dismissed ‘without prejudice’ gives the lender an opportunity to get their case together.  However, while the homeowner is waiting for the lender to re-file, the homeowner has time to pursue an alternative outcome, like a short sale or mortgage modification. Seek competent legal counsel to help review personal and financial factors, and to pursue a strategy to bring you the best benefit for your circumstances.     Read More

Walking Dead Foreclosure Plaintiff

Once upon a time a homeowner was sued for foreclosure on his home.  However, the plaintiff could not prove that he was the right party to sue for foreclosure—with purchases of the home loan by one company after another—and so the Judge dismissed the case. Twice upon a time the same homeowner was sued for foreclosure on the same property, but this case was filed by a new plaintiff.  Plaintiff #2 said he bought the loan and offered a dismissal of the case if the homeowner would give him the note.  Plaintiff #2 did not know he was already dead. Five years after the mortgage debt is matured, that debt is no longer eligible for a claim according to the Statute of Limitations.   In the first foreclosure case, the debt was accelerated, and therefore matured.  By the time Plaintiff #2 came forward to present his suit, the five-year Statute of Limitations had already run.  Thus the second foreclosure complaint was a burial suit, not eligible to be exhumed. The purpose of the Statute of Limitations is to clean things up.  If the plaintiff cannot get the foreclosure done in five years, something is wrong with his case.   Read More

Foreclosure Sale – Not the Only Outcome to Missed Mortgage Payments

The average home foreclosure in St. Johns County takes six to eight months (according to St. Johns Housing Partnership)…but it does not have to.  Just because a homeowner is facing foreclosure does not mean a foreclosure sale is the only possible outcome.  There may be alternatives available to the homeowner, and the faster a homeowner acts, the better chance they have of keeping their home. Sometimes just knowing the steps of the process may give the homeowner stress relief.  Understanding the process, and being able to make informed decisions about an outcome reduces the element of the unknown.  St. Johns Housing Partnership has an online presentation on the basics of home foreclosure at http://www.sjhp.org/what-we-do/keep/foreclosure-process-in-st-johns-county. No one should go through foreclosure alone.  While a foreclosure alternative may be available, the homeowner may need a third-party professional involved in order to complete a resolution.  A HUD Certified Counselor or an attorney may be needed to help the homeowner pursue and ending that brings them the best benefit.  Furthermore, that professional can help the homeowner navigate the process and give more specific information regarding options at each choice point.   Read More

Foreclosure on a Reverse Mortgage

Once upon a time there was a little old woman and a little old man who lived in a little old house they could ill-afford to pay for, and so they took out a reverse mortgage.  Then the little old man and the little old woman expected to live happily ever after, receiving a monthly income from the equity in their home instead of having to make mortgage payments.  However, they forgot to pay their property taxes, and so the bank foreclosed. A Reverse Mortgage (Home Equity Conversion Mortgage or HECM) is for homeowners 62 or older and allows them to withdraw funds from the equity in their primary residence in a fixed monthly amount or a line of credit or a combination of both.  But the homeowner is still responsible to pay for taxes and insurance on the property. To foreclose on a regular mortgage, you just have to be the holder of the note, which has to be a negotiable instrument (similar to a check, which can be cashed even if someone steals it because a check is a negotiable instrument).  The problem with foreclosure on a reverse mortgage is that the reverse mortgage note is not a […] Read More

Free Legal Lecture March 18 – “Foreclosure Defense of Homesteads”

So you did not go to law school and you did not pass the Bar Exam.  No problem.  The People’s Law School is in session again with its series of legal lectures presented by St. Johns County Legal Aid.  The March 18th topic is “Foreclosure Defense of Homesteads.”  This FREE one-hour class starts at 4:00 p.m. at the Southeast Branch Library (6670 US 1 South, St. Augustine, Florida). The People’s Law School schedule for the rest of the spring is as follows: March 25 – “How Can You Avoid the Need for Guardianship?” All classes are free and start at 4:00 p.m. at the Southeast Branch Library.  For more information on St. Johns County Legal Aid and their services, go to www.jaxlegalaid.org.   Read More

Hardest Hit Fund Eligibility

According to Jeff Foxworthy, “You might be a redneck if your primary source of income is a pool stick”…but that does not necessarily make you eligible for mortgage assistance from the Hardest Hit Fund.  Reduction of income due to death, divorce, or permanent disability of a borrower or co-borrower will not qualify as a financial hardship for Florida’s Hardest Hit Fund.  Other exclusions include the following: A bankruptcy that has not been discharged or dismissed A conviction on a mortgage-related felony within the last 10 years Property located in Georgia Rental unit as your primary residence Abandoned property Seller-financed mortgage The Hardest Hit Fund is intended to provide financial relief to Florida homeowners who are unemployed or underemployed, but there are requirements and exclusions.  It is locally administered through St. Johns Housing Partnership.  To learn more, visit their website at http://www.sjhp.org/what-we-do/keep/hardesthitinflorida.   Read More

Healing Time in Foreclosure Defense

Time heals all wounds…and some foreclosures.  A short sale does not happen in a day and a mortgage modification will not be completed inside a week.  Both of these can be alternatives to a home foreclosure, but you may need a legal defense to see them through. A Foreclosure Defense is not a denial of debt; instead, it asks your loan servicer to prove their case—to verify the facts of their authority to foreclose as well as the amount owed—and in doing so, gives you the opportunity to purse an alternative outcome.  The idea of Foreclosure Defense is to reach an outcome of best benefit to you before the lender can complete their case against you. Time is a side effect of Foreclosure Defense—not for the sake of remaining in the house payment-free as long as possible, but time to evaluate an alternative strategy.  You have time to review personal and financial factors with legal counsel, and time to pursue a plan to bring you the best benefit for your circumstances. A short sale does not stop a foreclosure lawsuit.   Keep in mind that your lender’s legal department and their financial department are two separate entities when negotiating a backsliding […] Read More

Renting Out Your Primary Residence

So you decided to make a little extra income by renting out your primary residence.  However, what you gain in rent you could lose in unexpected expenses and other losses.  Examine your choice carefully before you put a renter in your homestead.  Here are a few items to consider: Homestead Exemption Tax By renting out your primary residence, that property is no longer eligible for homestead tax exemption.  That does not necessarily mean that renting out your home is a bad idea, just make sure the rental income will not cost you more than you gain from homestead tax exemption. Homeowner Assistance If you are looking to rental income to help you save your mortgage loan, you may be giving up a most valuable asset to renters:  your home.  Many homeowner assistance programs are for the primary residence.  If you are not living there, foreclosure avoidance programs cannot help you save that property.  If the rental income is not enough to service the mortgage and save the loan, you may not have access to adequate mortgage relief. Being a Landlord Learn about being a landlord so you can do it cost-effectively.  Renters in possession have rights…even if it is your […] Read More

Home Foreclosures Decline

Home foreclosures are not trending like they used to.  According to RealtyTrac for January 2015, Florida is at the top of the list of foreclosure states, but in Northeast Florida, not even Duval has made the top five foreclosure counties, and pre-foreclosures are down 40% statewide from a year ago.  That is good news for most homeowners, but for the one household out of 773 housing units in St. Johns County, home foreclosure is still the same problem it always was. You may have legal choices available to you.   Safety in numbers was a fallacy in the foreclosure crisis.  Robo-signers in David Stern’s foreclosure factory signed thousands of documents…that did not mean the information was correct.  While plaintiffs are doing a better job at putting their cases together, there are still legal defenses which could help homeowners. Just because home foreclosure may be a more exclusive club than it once was does not mean you should resign yourself to the full consequences of foreclosure.  Consult competent legal counsel to help you explore the legal choices that could be available to your case.   Read More

Super Bowl & the Hardest Hit Fund

About 14 million people nationwide will call in a ‘Super Bowl sick day’ today.  Even St. Johns County schools have made it a holiday.  But if you are already unemployed and struggling to pay your mortgage, you have a much bigger hangover.  For Florida residents who are unemployed or underemployed, the Hardest Hit Fund may be the headache medicine for their mortgage. The Hardest Hit Fund was an allocation of Federal money given to five states (Arizona, California, Florida, Michigan, and Nevada) that had experienced excessive housing market depreciation.  The funds are designated to assist in foreclosure prevention, and targeted at those workers who are unemployed, underemployed, just returning to work, or recovering from underemployment.  The Hardest Hit Fund started in April 2011 statewide in Florida.  It offers foreclosure prevention through two programs: 1. Unemployment Mortgage Assistance Program (UMAP) will provide up to 12 months of payments (with a cap of $24,000) to the mortgage lender to assist unemployed or underemployed borrowers with their first mortgage until they can resume full payments on their own. In addition, up to $18,000 can be paid to help satisfy all or some of any past due amounts owed; this assistance will be paid […] Read More