Navient, formerly known as Sallie Mae, may be harassing borrowers through phone calls, text messages, and written correspondence
Delinquent or unpaid student loan debt is at an all time high. Despite this, there is little to nothing that a borrower can do. There are virtually no loan modifications, no reinstatements, and vast credit impacts that each borrower faces. The silver lining, if the collection efforts by loan company are extremely aggressive, is that the borrower can sue for harassing phone calls made. One of these companies that I frequently hear complaints about, from both their own borrowers and from other attorneys, is Navient.
If you are late on your student loans that are serviced by Navient, and are experiencing aggressive collection techniques, there are a variety of consumer protection statutes that protect borrower’s throughout the state and country. The primary ones are the Federal Telephone Consumer Protection Act, the Florida Consumer Collection Practices Act, and the Federal Fair Debt Collection Practices Act. These protections are limited by timing – in some instances as quickly as one year after Navient’s violation. This can include unlawful collection practices; including when a debt collector threatens you with jail for unpaid debtor or discloses your debt to a third-party. Additionally, if Navient, during its first communication with you fails to tell you that they are a debt collector and they are trying to collect a debt, a violation may accrue.
One common complaint is that the debt collector may be using automated phone call devices that target a borrower’s cellular phone and calls over three times a day. This is despite the borrower asking them to stop calling.
If you are currently delinquent on your loans with Navient, and are getting harassed by phone calls or rude service representatives, you may have a cause of action against them. If you would like to discuss your options with an attorney and have phone records and knowledge of what phone calls were placed by Navient, call my office at 813.502.6768!
Tenant Rights in Florida Foreclosure cases are now, to some degree, being protected by the state
In a new statute, signed by the Governor just this month, titled Termination of Rental Agreement upon Foreclosure (Fla. Stat. 83.561) certain tenants are being offered a thirty (30) day grace period following the foreclosure of the property they are living in after receipt of a thirty (30) day notice which must state, summarily, that they are “hereby notified that [their] rental agreement is terminated on the date of delivery of this notice, that [their] occupancy is terminated 30 days following the date of the delivery of this notice, and that [the new owner] depends possession of the premises on a [date certain].”
This new notice requirement goes on to say that if the tenant does not vacate the premises by the specified date, the court can then be asked for an order allowing the new owner to remove the tenant and the belongings from the premises. The tenant is still obligated to pay rent during the thirty (30) day period for any amount due, and an address to pay rent to must be specified. This notice must be sent in a very specific manner, pursuant to Fla. Stat. 83.56(4).
This new law designed to protect tenant rights in Florida foreclosure cases only applies to tenants that aren’t parties to the underlying foreclosure documents, or related to them, that the rental agreement is a “bona fide” lease which was negotiated pursuant to market value, and that the rent rates are near that value.
While I do applaud the legislature for trying to protect tenants at foreclosure, and must give my colleagues at the Florida Alliance for Consumer Protection all the credit for getting this bill through the red tape, I urge tenants living in foreclosed properties or owners purchasing properties at foreclosure, to contact a licensed Florida Attorney for help navigating this brand new law.
Chapter 7 Lien Stripping violates the bankruptcy code according to the Supreme Court decision in Bank of America v. Caulkett.
In a recent ruling, the United States Supreme Court ruled that debtors in a chapter 7 bankruptcy can no longer strip wholly unsecured mortgages (e.g., a $200,000 home with a $210,000 first mortgage and a $50,000 second mortgage) from their real property (home or investment property) pursuant to 11 USC 506(d) if the mortgage is both secured by a lien and allowed under 11 USC 502 (referenced as ‘Chapter 7 lien stripping’).
Previously, the 11th Circuit (which governs Florida Bankruptcy Courts) was bound by its prior decisions that expanded the requirement of 506(d) where the lien was not allowed and therefore void. The implications of this ruling will affect a limited number of Chapter 7 bankruptcy petitions, due in large part to the rising values of homes and the impact this has on subordinate liens (second mortgages, HOA liens, mechanics liens).
Put simply, prior to the decision, if a Chapter 7 debtor owned property worth $100,000, but had a first mortgage of $120,000 and a second mortgage of $40,000, the debtor could “strip” or void the mortgage thereby making only the first mortgage secured. This is no longer the case and where there is an allowed secured claim, even if totally unsecured in a value sense, the lien would still then attach to the property for the statutory enforcement period pursuant to the statute of repose.
It is important for individuals closing on real property where they have stripped a lien to know of this recent change in the law. Further, it is important for those that have closed on real property to know what what implications this may have on the marketability of their title going forward.
Every individual’s biggest fear in active litigation is that their attorney will stop representing them, that they cannot reach their attorney or there is no response from attorney’s firm, that the law firm has closed its doors, or you just found a plethora of complaints against your attorney.
Here, I will try to give you pointed advice on what to do if you find yourself in the worst position for a party to a lawsuit to imagine – your lawyer’s offices closed, he or she has stopped responding to your emails and phone calls, your calls don’t go through to their firm, you have found way too many complaints against your lawyer, or even if he was sent to jail. The bottom line – time is of the essence so you can minimize the impact to your case. It reminds me of my time doing internet marketing – a wide array of clients would consult with me after their current service had either disappeared or was not returning their phone calls. A few of the advice I would give there still has value:
Try not to panic
I know that is easier said than done. If you cannot contact your attorney or there is no response from an attorney – don’t start posting things on social media asking or making complaints. If someone from the other side of the law suit sees this, it may give them ideas on how to aggressively litigate your case while you may be dealing with this.
Recall your last conversation with your attorney
Did they recommend you go late on your mortgage? Did they say they may be in court a lot during the week you are trying to contact them? Are you able to reach anyone at that lawyer’s office? Can you physically visit the office and walk in? What was the last status update you received from them or their staff? How about pleadings/motions? If you haven’t received anything and don’t know how to answer these questions, please, get a free consultation from an attorney. If no one will talk with you, I will.
Gather the important documents
I am trying very hard to not scare you, but this part will. Gather everything and bring it to the consultation with your attorney. Insist on an in person consultation. If you think you have enough information – you may not. If you walk in empty handed, bring a note pad. It is very important, going forward, to get as much information about your case. You may find that you were represented very poorly and that what you were told does not match reality. This is sadly the case in many situations. The goal here is to get information and be in a position to react to it.
Be Honest with Your Goals
If your case has been ongoing for years, you may be facing a hostile judiciary, an a bank or opposing party that has simply lost its patience with you and your case. If you know what your goal is, it is time to move towards it – whether through counsel or independently. If you cannot reach your attorney, or if your attorney does not respond to you, you have to have an ability to direct your new attorney as to what your end game is – in some cases it may be litigating for a day in court and in some other situations it may simply be a soft landing. Only you know what your goal is, and it is your attorneys job to counsel you on what is achievable and what is not.
I certainly hope that no one is ever in this position, but if you unfortunately are you still do have options. Contact another attorney within your local community or the Florida Bar Attorney Referral Service as soon as possible.
Ocwen Loan Servicing Foreclosure Issues – Consent Judgment in New York!
During my time defending foreclosures throughout the state, a rare oddity in terms of loan modifications has always been the loan servicer known as OCWEN! From extremely rare principal reductions in loan modifications to incredibly fast returns on a loss mitigation package, Ocwen Loan Servicing had always been a pleasure to work with…until know.
Recent revelations about this servicer have really changed my view on this servicer, to the point that where I am faced with them as a loan servicer on a client’s file – I have a specially tailored (and short) set of discovery aimed at the servicer.
What am I asking for? Why am I asking for it?
Click Here to find out!
If you were just served in a deficiency lawsuit by Mortgage Guaranty Insurance Company, it is important for you to act quickly and understand who they are, and why they filed a lawsuit against you
Mortgage Guaranty Insurance Company (MGIC) is a mortgage insurance underwriter that underwrites a wide range of home loans throughout the United States. Generally, Mortgage Guaranty Insurance Company, is paid a portion of your mortgage payment on a monthly basis to pay the premium of this insurance. This insurance provided is not for your protection, it is for the BANK!
What is Mortgage Insurance?
Mortgage Insurance (“MI”) basically works as a way for the bank to get paid if you miss a payment or default on your loan. The MI Company, in this case Mortgage Guaranty Insurance Company, will write the bank a check for a given amount as directed by the agreement, oftentimes paying the bank in full on the Mortgage they wrote to a borrower. If Mortgage Guaranty Insurance Company paid out a claim, the bank could assign its right to seek a deficiency in a foreclosure action or Mortgage Guaranty Insurance Company became automatically able to attempt to collect on the deficiency.
Mortgage Guaranty Insurance Company will file a deficiency lawsuit against you to try to collect this amount.
This is why you have been served, the Mortgage Guaranty Insurance Company lawsuit is an attempt to make you, as the borrower, personally liable for any amount they could not recoup from the initial mortgage amount. This can have significant consequences on you and will often be brought up years after the initial foreclosure lawsuit was brought against you. Mortgage Guaranty Insurance Company’s lawsuit for a deficiency revolves around what they paid out and the value of the property as of the date of the foreclosure sale. Understanding what this means, and how to properly defend or settle it is extremely important.
If Mortgage Guaranty Insurance Company is Pursuing you for a deficiency, you have options!
Being served in a deficiency lawsuit can add a lot of stress to your life. Throughout the past few years, I have represented individuals throughout the state of Florida in deficiency lawsuits. There are a number of options available to you, and meeting with an experienced deficiency defense attorney can be a tremendous help. If you have just been served in a lawsuit I am offering, for a limited time, a free consultation to meet with me, either in person or on the phone, to discuss your case. You can call my office at 813.502.6768 or e-mail me to set up your FREE CONSULTATION if you have just been served. If you have a pending suit, or were served more than 20 days ago, a small fee may apply.
Dyck O’neal Lawsuit – they failed to read notices included in Motions and Notices, their case got dismissed!
Another good day! If you have read my blog recently, you’ll know that there is no greater day for me as attorney than to call a client and let them know that a Judge has dismissed their case. What is even rarer about these situations is when that dismissal of the lawsuit was obtained, the Plaintiff misses its deadlines to file a notice of rehearing or appeal, and as a result of their inaction, acknowledges it cannot refile because the statute of limitations has passed on its claim. This is exactly what happened, in a Dyck O’neal lawsuit, late last year and has now finally come to a conclusion for the time being.
In this Dyck O’Neal Lawsuit, the defense that I used that was successful in obtaining dismissal has been around in Florida for over a century, and requires only minimal efforts for a Plaintiff to overcome. A dismissal on cases using this defense is extremely rare and is partly due to both attorney inaction and a court system that is overloaded by the filing of deficiency lawsuits and wants to quickly resolve cases. But alleging the defense wasn’t the hard part. Having it be successful, in part was, as Judges throughout the state have differing opinions on the proper remedy for this defense. However, the most difficult part was knowing what to file after obtaining the court order dismissing Dyck O’neal’s lawsuit without prejudice (meaning they could technically refile) was the more difficult aspect of keeping Dyck O’neal’s lawsuit dismissed.
How is a final order not final?
Thanks to a principal at law (really, it’s what gives innocent individuals a right to be found innocent in a court of law in criminal court and what gives home owners the right to challenge foreclosure lawsuits in Florida) called Due Process, this is not as counterintuitive as you may think. Generally, any individual in a lawsuit gets two things: (1) Notice and (2) a Hearing. This is equally true post-judgment where Dyck O’neal had an opportunity to ask for a rehearing. They did, but made a very big mistake. They didn’t file their request correctly and waiting until after their time to do so had expired. Put bluntly, the court had no authority on a legal level to grant their relief. Dyck O’neal withdrew their motion, and in doing so, furthered the issue that was created after their dismissal.
Again, an extremely rare result – but an awesome day and one of the reasons I became an attorney – the idea that consumers throughout the state are now being sued for deficiencies years after the bank foreclosed on their property is troubling to me. For all of those in similar situations, knowing your options is vital and can sometimes result in a dismissal of the action altogether.
FHA mortgage foreclosure lawsuits could be affected by a Ohio based lawsuit
In a recent court filing, many individuals facing FHA mortgage foreclosure are fighting back. As you may be aware, an FHA Mortgage, and a resulting FHA Mortgage Foreclosure, is a very small subset of loans that were backed by the federal government, namely the Department of Housing and Urban Development (HUD). These loans require specialized rules regarding pre-foreclosure actions taken by the mortgagee (the bank or holder of the Note) before the bank can even file a lawsuit. In fact, many of the FHA Notes will state, flat out, that non-compliance with these specialized provisions will prevent acceleration of the debt and creates defenses to foreclosures.
What are the issues with FHA mortgage foreclosures?
FHA loans require that prior to the fourth month of missed payments that a borrower is reviewed for loss mitigation on a monthly basis. This can mean loan modification (recasting of a mortgage) or forbearance, short sale (pre-foreclosure sales), deed in lieu, or another workout option that is available to the borrower by the bank. It is important to note that this review is supposed to be monthly, and determine what option may be appropriate for the borrower. This is because other FHA servicing requirements say that the borrower and mortgage company must have a face-to-face counseling. This is what, in theory, helps the FHA mortgagee understand what option would be best for the borrower in a given situation in an attempt to avoid the FHA foreclosure.
Can this defeat a foreclosure suit?
At times, this can lead to a granting of a summary judgment from the defense side or can defeat a motion for summary judgment from the bank. Knowing what is required from an FHA Mortgage – in the foreclosure action – can sometimes be extremely valuable to your case. It is important, if your mortgage is an FHA mortgage, that you bring this fact to your attorney’s attention. If you are just meeting with an attorney at a consultation, you should mention these facts as well.
If you are facing an FHA Foreclosure Action, my office is available to speak to you regarding your options. If you would like to speak with an attorney, please do not hesitate to contact me at 813.502.6768.
Illegal Credit Collection Crackdown has creditors running!
A recent string of arrests has many consumers cheering on the government. The founder of a debt collection agency, as well as a number of its employees were arrested and are now facing federal charges for their illegal credit collection practices. Plainly put,these creditors were trying to collect a debt by calling individuals or in other ways contacting them and asserting that they, the consumer, are facing wire fraud, or other similar charges, and that if they did not pay an arrest warrant would be issued for them. These individuals allegedly were identifying themselves as “investigators” or “detectives” and were intimidating people into making payments on these accounts. The federal government has charged them with conspiracy to commit wire fraud, but the big news may come when these individuals face civil liability.
Many people think acts like these are illegal, they just don’t know where or when.
When people are faced with an arrest warrant, they often trust whomever is on the other side saying there is one. This is typical, and a practice that preys on an individuals fear of being arrested. Fortunately, both the Federal government and Florida legislature have made illegal in a collection context. Florida has made this type of collection activity illegal in the Florida Consumer Collection Practices Act – See Fla. Stat. 559.72. This act makes a number of things illegal, and can open the debt collector or collection agency up to civil liability, including the following:
(10) Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law, when it is not.
(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.
Oftentimes these credit collectors are doing exactly that – stating that they are sending a legal document that looks like a state issued it, or saying they are an attorney or with a law firm when they are, in reality, not. These violations allow for civil liability if the act has been violated.
The federal government has done this as well, codifying its law into the Fair Debt Collection Practices Act – See 15 USC 1692, et seq. The Fair Debt Collection Practices Act can hold a debt collector or credit collection agency civilly liable for a number of things, including:
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
If creditors are using illegal collection practices, you have options.
If a creditor is trying to collect debts from you by saying you will be arrested, or that they are an attorney but don’t appear in any bar registry, or worse, a meeting with an attorney may give you the information that you need to determine if the credit collector’s claims are genuine or if you are the victim of an illegal practice.
Attorney Bryant Dunivan's office is centrally located in Brandon, FL. From this location, Mr. Dunivan represents clients facing Foreclosure (including First and Second Mortgage Foreclosure Defense, HOA Foreclosure Defense, and Condominium Foreclosure Defense), Chapter 7 and 13 Bankruptcy, Consumer Protection (FDCPA/FCCPA), and Real Estate Law. Mr. Dunivan represents clients throughout the state of Florida, and most commonly practices in Hillsborough County, Pasco County, Pinellas County, Hernando County, Polk County, Charlotte County, DeSoto County, Sarasota County, Lee County, and Collier County, Florida. Mr. Dunivan's current client base is comprised of residents of the following cities: Tallahassee, Tampa, Riverview, Clearwater, Valrico, Brandon, Lithia, Apollo Beach, Gibsonton, Wesley Chapel, New Tampa, Seffner, Ruskin, Sun City Center, Fish Hawk, Plant City, Temple Terrace, South Shore, Fort Myers, Cape Coral, Lehigh Acres, Naples, Deland, Daytona, Arcadia, Punta Gorda, Bonita Springs, Naples, Golden Gate, and Ellenton. If a city or county is not listed above, Mr. Dunivan will represent clients throughout the state of Florida
Bryant H. Dunivan Jr., Esq.
The Law Offices of Michael J. Owen, PLLC
330 Pauls Dr., Ste. 104
A consultation with me or my firm may result in seeking relief under Title 11 of the US Code (Bankruptcy). We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.