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

Alternative Vocabulary for ‘Home Foreclosure’

‘Home Foreclosure’ seems like such an awkward term, leaving homeowners to seek a handy euphemism.  ‘Bankruptcy’ on the other hand is so often incorrectly applied, resulting in loss of credit that might be otherwise saved with the use of an alternative vocabulary, such as the one below: FORBEARANCE – Pay a portion of your regular payment or no payment at all for a specific period of time, at the end of which you begin making regular payments and also pay an additional amount to pay off the past due amount.  This could be the best resolution in a situation of temporary financial hardship, such as job loss. REFINANCING – With enough equity in the home and a good credit score, you may be able to negotiate a lower rate for the loan, reducing the monthly payments. REPAYMENT PLAN –   This is also applied in a situation of temporary financial hardship whereby you work out a plan with the loan servicer to send in extra money for a few months, or the arrears are tacked onto the end of the loan, but the loan’s terms remain the same so the borrower must be able to afford the base monthly payments. RATE […] Read More

Paint Your Own Best Picture in Foreclosure

Henri Matisse started as a lawyer.  That did not work out, and he became a famous painter instead.  Things do not always turn out as you expect, even when you receive a legal notice of home foreclosure. Just because you are overwhelmed with mortgage debt does not mean you are helpless as a still-life.  Depending on your situation, there may be things you can do, either to stay in your home with modified payments (as with a mortgage modification) or move to a more affordable place (as with a short sale). You may need to get a third party professional involved, such as a HUD-Certified Credit Counselor or even an attorney.  The process and the paperwork can be a difficult subject, and you may need a HUD-Certified Credit Counselor to help you capture the information needed in all its relevant glory.  Or you may need an attorney to do it justice. If you receive a legal notice of home foreclosure, do NOT ignore it.  Even if you have a work-out plan sketched with the loan servicer, even if you have a short sale closing scheduled—neither of these will stop a foreclosure from proceeding.  Seek competent legal counsel right away because […] Read More

Coming Up Short? Short Sale in Home Foreclosure

What is a Short Sale in real estate and who would want one?  Certainly not the bank.  The bank who loaned the money to buy the house wants all that money, plus the interest agreed upon.  They want all of it, cutting no part of that amount short.  Regardless of what that house may be worth now, the agreement with the lender was to pay the whole amount.  So how does a homeowner get a short sale out of that? Not easily, and not without a sacrifice of credit, but it can be done. What if you are coming up short on making your mortgage payments?  The Short Sale of your home may be the best resolution, depending on your circumstances. A Short Sale is when the lender agrees to accept less than the mortgage amount owed. Again, the bank wants their money, but they do not want your house.  They do not want to open a branch office at your address, keep cold cash in your refrigerator, convert your garage to a drive through and give out lollipops.  Banks are in the business of money, not real estate.  While your home is held as collateral on the loan, the […] Read More

Houses Haunted by Zombie Debt

Zombie Debt is debt that has been dead for a while, but does not know it is dead, and walks the streets of residential neighborhoods. Once upon a time in 2007, a Bank foreclosed on a Home.  The Foreclosure Complaint was filed, a Judgment entered, but then the Foreclosure Sale got cancelled.  Meanwhile the Debt was sold to another company, who sold it off again, etc., until finally one of the mortgage debt-buyers decided to foreclose. A couple of problems: The Debt matured when the loan was accelerated, at which point the Statute of Limitations began to tick. The Statute of Limitations runs for five years in this kind of matter, and the Debt was accelerated in 2007. Time’s up. The Note and the Mortgage were merged into the Judgment. The Note and Mortgage no longer exist; the Judgment exists.   Zombie Debt works because people do not know better.  They fail to question what is happening and do not realize that they may have a legal defense. Foreclosure Defense is not going to bring your house back from the Debt, but it can help you deal with that Debt and undead Debt that comes back to haunt you.  Seek […] Read More

Fish Out of Water Foreclosure Defense

Marco?  Polo.  It is a game of blind man’s bluff played in the swimming pool where the person who is “It” tries with eyes closed to tag another swimmer.  To evade being tagged, a player can get out of the pool, but if “It” says, “Fish out of water!” then the person out of the pool becomes “It.”  Home foreclosure might not be as much fun, but it has a “Fish out of water!” aspect when it calls into question Subject Matter Jurisdiction. Marco? If the lenders and loan servicers have done their jobs right, what is a foreclosure defense attorney going to say?  However, there may be room to talk about the loan servicer’s authority to foreclose. Polo. Subject Matter Jurisdiction is a big deal in our form of government.  The United States Judicial System requires that a court have Subject Matter Jurisdiction over the subject of the case, and requires that the parties are the proper parties to pursue the lawsuit.  With debt sold into secondary markets, Subject Matter Jurisdiction is an important question.  Just because you owe money does not mean the party suing you has the authority to pursue the case. Marco? With institutional lenders, home […] Read More