Procedure, Procedure, Procedure in Foreclosure Court

The key to Foreclosure Defense is PROCEDURE, PROCEDURE, PROCEDURE.  Court procedure is supposed to apply a legal protocol of checks and balances, assuring that both sides of a case are fairly heard.  Witnesses should be sworn in, Rules of Evidence should be followed, and Justice should be served.  However, procedure is getting short-changed in some foreclosure courts. Procedure is sometimes cited at the core of the foreclosure debacle.  Starting with the Borrower and the Original Lender:  did the Lender run down his checklist to make sure the Borrower fully qualified for the loan?  Then following the chain of ownership of the loan:  did the note follow the mortgage?  Was the debt transferred properly?  If not, then who really has the right to foreclose on the house?  If the Borrower resolves with the Current Loan Servicer, will another financial institution also claim a right to that debt?  Procedure is no small matter when it comes to legal jurisdiction…and procedure should be no small matter in courtroom procedure. Proper procedure is the difference between hoping and hopping in court.  That is right, I am talking about Kangaroo Court, where foreclosure cases come in and get bounced out without consideration of proper procedure.  […] Read More

Lenny the Lender & Joey the Jurisprudent

Lenny the Lender was going to foreclose on the house of Joey the Jurisprudent.  Joey had not paid his mortgage in quite some time, and Lenny expected him to turn over his home uncontested like most homeowners, but Joey the Jurisprudent did not give up so easily.  Joey wanted to negotiate a short sale or loan modification, which would uphold his credit score above the “foreclosure” mark.  Joey the Jurisprudent launched a Foreclosure Defense, forcing Lenny to prove his case. Lenny Motioned for Summary Judgment to avoid a Trial.  A Summary Judgment will go quickly, Lenny reasoned, because you do not have witness testimonies like in a trial.  So he gathered his paperwork and went off to court.  He had a stack of affidavits, but they did not do him much good in a Summary Judgment. According to the Rules of Evidence for Summary Judgment, you cannot use an out-of-court document to prove a statement.  An affidavit is an out-of-court document.  It cannot be cross-examined, and without witnesses in a Summary Judgment, there is no one to verify the statement. “This is not an affidavit you see before you!” Lenny quickly told the Judge.  “This is a Business Record.” Business […] Read More

Occupy Main Street

Wall Street is not zoned residential, but Mortgage Defaults have put Houses in the Financial District, inciting roofless behavior of former homeowners to go forth speaking in throngs.  If you cannot occupy Main Street, you have to live somewhere. There is no place like home, but for some facing foreclosure, there is no home-like place.  With 350,000 Florida foreclosure cases, a lot of house-dwellers are looking to relocate.  Not everyone owns a sleeping bag or speaks in unison against corporate greed.  Even if you do, there are other strategies to occupy Main Street. A legal defense against Foreclosure puts the onus of accountability on the Lender.  Foreclosure Defense means the Lender has to show he has authority to foreclose on the property.  While he is busy proving he owns the loan, and how much is owed, the homeowner has the opportunity to seek an alternative outcome, like short sale, loan modification, forbearance, refinance, etc. Lenders are not used to being challenged.  The majority of Florida foreclosures are uncontested (not quite the 99%), meaning the Lender forecloses on the property without anyone asking if the Lender has jurisdiction to take that action. Yes, Homeowners should pay their bills, and also yes, […] Read More