Foreclosure Side Effect

Frustration?  Anxiety?  Dizziness?  You could be experiencing any number of medical distresses…or you could be in home foreclosure.  Yoga is not going to make your legal problem go away.  Instead, foreclosure defense comes with a side effect of its own—time—which may help counteract the stressful side effects of home foreclosure. Time is a side effect of a Foreclosure Defense.  While the legal defense addresses the litigation issues of your case, you have the opportunity to pursue an alternative to foreclosure.  Foreclosure defense is not a denial of debt.  Instead, it asks the bank or loan servicer to prove their case.  While they are busy verifying the records and their authority to foreclosure, you have time to work out an alternative, like a mortgage modification or short sale.  The idea is to reach an outcome of best benefit to you before the lender can complete their case against you. Seek competent legal counsel to discuss your situation.  Sometimes there is no resolution; however, just knowing the steps of the foreclosure process may give you some stress relief.  Understanding the process, and being able to make informed decisions about an outcome reduces the element of the unknown.     Read More

What to Bring to Foreclosure Summary Judment

Once upon a time a homeowner had not made his mortgage payments, and he went into default.  At his Foreclosure Summary Judgment, he had to admit that yes there was a note, yes it was executed, and yes he did not pay.  Though he had recently begun to recover financially, things did not look favorably on his case.  The loan servicer was all ready to win…except he had failed to attach the business records to the affidavit. Just because one side is right does not mean they win without the right evidence.  For most foreclosure lawsuits, you come up with the amount of damages from an affidavit of business records.  These records are made at the time of the transactions.  The affidavit without the business records attached is hearsay.  The Lender cannot simply say that the Borrower owes money and write that down on an affidavit as evidence.  How do you cross-examine a piece of paper that the Lender swears is true? (A business record is also an out-of-court document, but it is an exception to the Rules of Evidence for Summary Judgment.  A business record is not hearsay because it is created in the normal course of business and […] Read More

Sweet Home

Just as the Gator defense kept Alabama from gaining yardage in the SEC Championship game, foreclosure defense may be able to assist in loss of credit in a home foreclosure.  You are not going to win the case, but you are not going to lose as much credit as you would without a defense.  Furthermore, unlike the Florida-Alabama game, a legal defense may be able to bring about a different outcome. In court, there is a winner and there is a loser, just like a football game, but with a foreclosure defense, you may be able to achieve an alternative outcome before the foreclosure case has the chance to finish. A foreclosure defense addresses the legal aspect of the case, asking the plaintiff to prove their case, and while the plaintiff is occupied with that proof, the homeowner has the opportunity to pursue a foreclosure alternative, such as a mortgage modification or a short sale.  A foreclosure defense is not a denial of the debt, but it may be able to do something different with the way that debt is handled, something that brings a better benefit to the homeowner. “Sweet Home Alabama” is probably not the most popular song […] Read More

Need More Time in Foreclosure?

Today is Monday, December 7, you have seventeen shopping days left until Christmas.  If you do not heed the deadline, time can work against you.  The same is true in home foreclosure. If you have received a Foreclosure Summons, you only have 20 calendar days to respond, and it needs to be answered properly.  Often a Motion for Enlargement of Time can give you the chance to review your case with a foreclosure defense attorney (if you have not already done so) and go over what legal choices you may have.  Motion for Enlargement of Time gives you that opportunity to regroup and address this as a legal matter and not just a financial fiasco. You cannot mount a Foreclosure Defense just to delay the inevitable, but you can use the time it gives you to pursue a strategy toward your best benefit, such as a mortgage modification or short sale.  If only you could file for a Motion for Enlargement of Shopping Days. “There’s no present like the time.”  Second Best Exotic Marigold Hotel   Read More

Changing Horses in Mid-Foreclosure

Once upon a time a Lender and a Loan Servicer were in a very busy horse race to get to the end of the home foreclosure crisis.  The Lender was very busy indeed, and the Loan Servicer said, “Give me these files and I will foreclose them before you can get to them.”  The Lender was far too busy to even assign the mortgages to the Loan Servicer before the Loan Servicer started filing foreclosures. You cannot really do that.  The plaintiff has to have subject matter jurisdiction in order to bring the complaint before the court.  If the Lender starts the case and then transfers the loan to the Loan Servicer, that is fine.  But if the Loan Servicer files the foreclosure case AND THEN the Lender assigns the loan to that Servicer—that is a problem. The plaintiff was not the right plaintiff.  All those foreclosure cases had to be dismissed and re-filed by the right party, which slowed the race to finish the foreclosure crisis. Do not file foreclosure before you have subject matter jurisdiction, and do not change plaintiffs in mid-foreclosure.   Read More

Finish Strong – Foreclosure Defense

In the State of Florida, home foreclosure is not a sprint; it is a marathon.  Furthermore, our judicial process gives homeowners a better chance to finish strong. In Florida, it takes over 900 days to foreclose on most homes.  What could you do in 900 days?  That is two-and-a-half years from now.  Where do you see yourself in two-and-a-half years?  A lot can happen in that period, and you can use that time to work towards a more favorable outcome, like a mortgage modification or a short sale. If you are facing foreclosure, your fiscal fitness is going to suffer, but the idea is to retain as much credit as possible so you can recover faster.  A mortgage modification or short sale usually allows the homeowner to finish in a stronger financial position than if the foreclosure is completed. Despite the long foreclosure process, you may need the help of a third-party professional to pursue a foreclosure alternative.  Mortgage modifications and short sales are not known for their rapid timeframe.  You may need a defense attorney to address the legal aspects of your case while you continue to pursue an alternative outcome. Seek competent legal counsel to discuss your circumstances […] Read More

Christmas Countdown & Court Deadlines

Today is Thursday, November 19; you have 36 shopping days left until Christmas.  If you have been served a home Foreclosure Summons, you have even fewer days than that to respond, and if you have been served a Three-Day Notice to Pay or Quit at your rental unit, you have even less time. Once you receive a Foreclosure Summons, you only have 20 days to file a response or you could be defaulted in the case.  Note:  those are 20 calendar days as the crow flies, not around weekends and holidays.  The clock is ticking through Christmas, Chanukah, Kwanzaa, and Festivus. By contrast, Landlord-Tenant Law works off the courthouse calendar, not Wal-Mart hours.  Landlord notices come in increments of less than ten days.  Because that is such a short amount of time, the court does not count holidays or weekends to allow the tenant time to get things done.  Plus it is harder for a tenant to pay a landlord on holidays and weekends when banks are closed.  Thus in renter eviction, holidays and weekends do not count in notices. Regardless of how many shopping days you have left, if you received a Foreclosure Summons or Three-Day Notice, the clock […] Read More

States’ Rights – Florida v. Georgia

If you missed the game on Saturday, so did Georgia.  What Florida lacks in kudzu they made up for in score. The Florida-Georgia rivalry has historic roots, dating back to the colonial days.  When Florida was a Spanish colony, it used to scrimmage with its British neighbor to the north.  When Florida was a British colony, it dealt with raids from Georgia during the American Revolution.  Though these two neighboring states are now part of the same country, they still have their differences, and it goes beyond football. Georgia has non-judicial foreclosure, which means the lender can give notice, publish, and foreclose within 60 days with only the clerk and an attorney, no judge present. In Georgia, if you use a loan to buy a house, the bank owns that house until you pay off the loan; whereas, in Florida, you are the homeowner even if you borrowed money to buy the house, and even if you are unable to make the payments and the house goes into foreclosure…you still own it.  You own your home up until the Certificate of Title is issued (usually about ten days after the foreclosure sale).  For the homeowner who does not really care, […] Read More

Voting Rights & Home Foreclosure

Homeowners in foreclosure have rights, one of them is voting.  Even if your home is in a stage of foreclosure, you can still go to the polls. One of the common election myths is that homeowners who have a foreclosure suit filed against them are ineligible to vote.  Not true.  While colonial America required voters to have a certain amount of land holdings, registered voters today are eligible to vote regardless of their real estate ownership status, even if in mortgage default. Furthermore, because foreclosure is a lengthy process in Florida, homeowners can remain in their homes for months after receiving a foreclosure notice.  Our judicial procedure in home foreclosures in this state takes time, giving homeowners the opportunity to pursue an alternative (like short sale or mortgage modification), and also leaving the homeowner in place in their voting precinct so they can cast their ballot. (If you have moved out of your foreclosed residence with no intention of returning to live there, give the Supervisor of Elections your change of address so you can be assigned a new precinct for the next election.)   Read More

Foreclosure Figures

Home foreclosure is no longer making headlines like it did in the Recession, but Floridians are still feeling the impact from the economic downturn according to a survey by the University of South Florida and the Nielsen Company. Though Florida foreclosures have decreased, Florida ranks number two nationally in highest foreclosure rates in the third quarter, according to RealtyTrac.  They reported numbers in our area for September as follows: Clay County – One in every 368 * Duval County – One in every 541 Flagler County – One in every 497 Nassau County – One in every 516 Putnam County – One in every 506 St. Johns County – One in every 1,200 (* Note that Clay County is in the top five foreclosure counties in Florida.) While foreclosure is not currently the forefront of the news, if it is affecting you, then it is the headline of your financial life.  There may be a legal resolution.  Seek competent legal counsel to learn what legal choices you may have.   Read More