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In a recent court filing, many individuals facing FHA mortgage foreclosure are fighting back. As you may be aware, an FHA Mortgage 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.
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.
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.
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.
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.
(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 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.
Unfortunately, a tell tale sign of a down economy is the failure of a small, family owned businesses, or even larger corporate entities. Many times, the individuals that are taking the risk and starting that company will make large investments, sometimes including the purchase of a commercial property for their store front or other equipment. Many times, as a result of a failed business venture, I have a chance to speak to individuals about their post closing options, including bankruptcy, debt negotiation, or in some cases – foreclosure defense. The considerations are different for everyone, but the largest amount of questions come people that may not want to file bankruptcy, they want to keep trying to save their business. I will attempt to give you some highlights from those conversations.
This one is so fact specific that I can literally blog about it forever. Whether a commercial mortgage is defensible is a matter of looking at the Note, Mortgage, and any other documents and scrutinizing every action by the lender. This can take years, but it is important to know what you are looking for up front. Under Florida law, a commercial agreement is protected by less statutory provisions and law because, at its core, a commercial transaction is deemed to be “more sophisticated.” Generally, commercial parties to a Note or Mortgage will have an attorney representing them throughout the drafting process, and this can help make the agreement between the parties more fair. Most start ups, however, do not realize that if they are not represented in this negotiation, the bank will make as many conditions go to their advantage as they can.
This is typically where I am frequently dealing with a commercial Note and Mortgage in a commercial foreclosure context. The borrowers involved didn’t have an attorney, and are now faced with an extremely one sided Note and Mortgage. Generally, there are no notice requirements. The Note in question may not even really reflect the agreement of the parties. The mortgage may not have a clear default provision. All of this is meant to try to allow the bank to have an easier time to foreclose on the commercial property.
Knowing whether there are defenses to the foreclosure requires, again, a thorough review of your loan documents and the complaint. If you have been served with a commercial foreclosure – whether it is foreclosure on a commercial space or your investment property, meeting with an attorney may help you know what options you have and give you an indication on what defenses, if any, are available to you.
The truthful answer? It depends pretty heavily on the lender that is pursuing you. If it is a smaller lender or a private lender, the only loss mitigation option may be to reinstate the loan. That is where you pay the full amount that is allegedly due since your default. Put frankly, many struggling businesses do not have this kind of capital to pay the bank and still run their business. A loan modification may be an option, but that is solely at the discretion of the bank. Typically, the easiest way to try to mitigate your damages in this scenario is a short sale. This allows you to deal with the mortgage debt in a negotiated manner with the bank where they get some capital, and you can hopefully work out a deficiency waiver.
This is where a lot of individuals lose sleep at night. When you realize that you have personally secured your businesses loan, you may feel like there are no answers to the lawsuit. This is where a knowledgeable attorney can be helpful. In some situations, personal guarantee’s are specific as to only one lender. This means that if your loan has changed hands, you may have a defense to the guaranty being enforced against you in the court action. This, again, requires a very careful reading of the foreclosure complaint and the guaranty.
If you are “on the hook” because of the gauranty, generally bankruptcy becomes an option for you as an individual. What chapter, however, depends heavily on your income.
If you have been served in a commercial foreclosure – either your business property or personal investment property – it is important to discuss your case with an attorney at the inception of your lawsuit. If you have just been served in a lawsuit, my office offers free consultations to help you become familiar with your rights and options. If you would like to schedule a foreclosure consultation, please do not hesitate to call my office at 813.502.6768, or e-mail me.
This Friday, I got to make one of the best phone calls to a client in my career. As many of you loyal readers of my blog know, I focus part of my practice on post-foreclosure judgment appeals and deficiency cases. This was one of those cases. A plaintiff in the case filed a motion for deficiency judgment in excess of $50,000. The problem with the motion for deficiency judgment? The debt collector did not have the right to go after the deficiency because of the previous case some 4 years ago. There was a problem with jurisdiction, and it made all the difference in this case. On Friday, I got to tell them that the debt collector gave up, that they withdrew that motion. This is an extremely rare call that I got to make, and want to use it as a chance to inform my readers that may think the judge in their case will argue the law for you.
I cannot stress enough, that by not having an attorney, you will be held to the same standards of an attorney. This includes motion drafting and arguing that motion in court. The judge can’t even tell you the cases to rely on – you have to find them on your own. Knowing what to look for at the start of any case is important, but knowing very technical arguments may be the difference between a drawn out lawsuit and a quick resolution. Many readers ask me, particularly in pro se situations, whether or not the judge will make legal arguments for them if they “aren’t a lawyer”. The answer, quite simply, is no. A judge can only make procedural recommendations, they cannot give you the legal argument that may win in your case.
Unfortunately, the deficiency judgment may have been entered. Again, a judge can’t insert themselves into the case for the benefit of any one party. Without making the right objections and citing the correct law the judge in a given case can only rule on the arguments that are in front of them. Not making the proper arguments can be the difference between winning and losing your case. I highly recommend that anyone that is served in a lawsuit, regardless of the posture of the case is, meets with an attorney prior to filing anything in their suit. Knowing what you are facing can further educate you as to your options.
Generally, the only notice home owners will receive in a Florida foreclosure case about a pending non-jury trial or hearing on a motion for summary judgment (or any hearing, for that matter) will be either a “Notice of Non-Jury Trial” (and sometimes an order governing a pre-trial procedure) or a Notice of Hearing on Plaintiff’s Motion for Summary Judgment. These are typically the final hearing points of a given foreclosure case in Florida, with some exceptions (e.g., an order to show cause). If you have received one of these, either the notice of hearing on the Motion for Summary Judgment or a Notice of Non-Jury Trial, you are in a very serious situation. The bank may be entitled to judgment if you do not, or have not, properly defended your foreclosure case. It is important to note that if you choose to defend the case on your own, you will be held to the same standards as an attorney.
Not always, but there may be some clues. One thing you can look for in the case of a non-jury trial in a foreclosure case is the filing of a notice for trial. Basically, this makes the court aware that someone in the lawsuit – whether it is the bank or another defendant – thinks your foreclosure case is ready to go to a non-jury trial. There are some very precise procedural matters that must be followed in filing the notice for trial (or notice that cause is at issue) and what the court does after receiving it. As for a Motion for Summary Judgment, a lot of the work done through that motion for a final judgment of foreclosure comes through the use of affidavit evidence. If you see a lot of affidavits being filed in your case, generally either the Motion has been filed or it will be soon.
It may be. There are some new regulations that help in this type of situation for loss mitigation, but it comes down to a judge’s discretion. A judge can allow you to defend the case and even file an answer if you are coming up to a motion for summary judgment. In terms of a trial, this may be a little bit more tricky. If you have been defaulted this puts the odds even more against you, as you have basically waived all of your rights to defend the case. That being said, you can still object to evidence at trial, and understanding what each document the bank is trying to admit into evidence, the proper way to do that, and what each document means for the bank in proving their case could potentially cost the bank a victory.
In recent news, a lot of news outlets have finally gotten wind how unfriendly the Florida foreclosure courts really are. From judges telling home owners to “pack their bags” to banks trying to get foreclosure judgments without a proper Note or Mortgage, a lot of Foreclosure Defense attorneys, including myself, are fighting a very difficult fight to find a proper foreclosure alternative for each client or to win at trial. A very recent case has found that if you accomplish the later, i.e., win your case or the judge dismisses it, you may be facing a second foreclosure lawsuit all over again. See, for example, U.S. Bank Nat’l Ass’n v. Bartram, No. 5D12-3823. This case allows each months payment to become its own default, with its own five year statute of limitations. If you were successful in defending the first suit, the second lawsuit could be based on the very next missed payment. This is very technical circumstance when you are dealing with a bank bringing a lawsuit outside of the statute of limitations, so meeting with an attorney regarding it is highly advisable.
If your case was dismissed, or if you won on a defensive motion, if you did not resume making your monthly payments, that very next month could be considered the default in that second foreclosure lawsuit. If this happens, you may start the nightmare of foreclosure all over again. This can happen if the judge threw your first foreclosure lawsuit out, you or an attorney were successful in getting the bank’s foreclosure case dismissed at a trial, or if you won on a defensive motion for summary judgment. If this was the case and you didn’t resume making payments, you could be facing a second foreclosure lawsuit for the first missed payment after the final order dismissing the case was entered.
Well, depending on how it was dismissed the bank may be barred from bringing another action on the same default (missed payment) that the first suit was based on. The Bartram case, and cases like it, allow the bank to then go after you for another missed payment, and in effect, restart the clock so long as there is another missed payment. This can be extremely frustrating, especially when you think you have put that matter behind you.
There is a silver lining if you have been served again in a second foreclosure lawsuit as it requires the bank to completely start the new foreclosure over again. This means all the information from the first suit needs to be updated. If a bank brings a suit saying there is a new default, it has to actually tell you what that default was, and what the correct amount needed to fix it may be. Contacting an attorney from the start may potentially save some defenses to properly litigate the case.
I have been running into this question more and more in my consultations relating to post-judgment foreclosure actions for the past few months, so I wanted to take a few moments to really speak as to who Vantium Capital is, what a motion for deficiency judgment is, and how it can effect you after your foreclosure action was seemingly behind you (you may have even thought that the debt was discharged if you received a 1099). This is happening in literally thousands of cases throughout Florida and is a very serious motion. If you have discovered that this motion has been filed in your previously closed case, it is important to speak with a debt relief attorney that is familiar with the different options that you have available and may help your situation.
Vantium Capital is a Delaware corporation that recently changed its name to Clearspring Loan Services, Inc. They are currently in the process of purchasing the rights to judgments in old foreclosure cases, and will try to substitute into old foreclosure cases after taking over the loan that was the subject of your old foreclosure suit. This technically allows them to try and enforce the rights to the difference between what the judgment amount was in your case and the value of your property that was sold at a foreclosure auction or, more commonly, the deficiency. They are subject to the same statute of limitations as other banks and creditors in foreclosure cases and may have filed motions as late as June 30, 2014.
A motion for deficiency judgment is part two of a most foreclosure lawsuits. Part one was the law suit that decided whether the bank could legally take your property back after a missed payment. After judgment was entered, and your property was sold, the bank had a right, subject to some exceptions, to go after you and the other note signors personally. The bank is required to do this by motion if they do so in the same lawsuit that the foreclosure took place in. Generally, they must prove to a judge the value of the property that was sold on the date of the foreclosure action. You have a right to contest this, and can provide evidence that goes against the value that is being offered by the bank, or in this case, Vantium Capital Inc. It is important to remember, though, that a judgment against you can be in excess of what was initially alleged. A big portion of your defense will rely on either the value of the property at the time of the foreclosure sale or your ability to settle the deficiency amount prior to a final evidentiary hearing on the merits of Vantium’s motion. Also, there is a finite amount of time that this process takes, so it is important that you act quickly or else fees and other costs can increase the amount Vantium is either willing to settle for or gets in its final judgment.
Basically, if Vantium Capital is able to get an actual judgment as to the deficiency amount, they can then either garnish your wages or bank accounts, attach liens to your real or personal property (with a few exceptions), and otherwise make your financial life miserable. A judgment may also force you into bankruptcy, depending on other debt and income related factors.If you are interested in exploring your options in relation to the motion for deficiency judgment that was just filed, please contact my office at 813.502.6768 or email me to set up a consultation.
If you have been served in a lawsuit recently by Dyck O’neal Inc., you are not alone. They are basically a credit collection service – they have purchased rights to old deficiency judgments from the bank that previously foreclosed and are trying to collect pennies on the dollar. They are serving individuals throughout the state of Florida to get deficiency judgments. If you have been served in a lawsuit by Dyck O’Neal it is important to speak with a debt relief attorney immediately!
Basically, for those individuals that have had a judgment entered against them before July of 2013, the banks had five (5) years to seek a deficiency judgment. This was not the case after the statutes were amended to reflect the changes in the 2012-2013 congressional sessions. All of the old bank judgements now only have until July 2014 to enforce the deficiency judgment. What this means for a lot of Florida residents is simple. The foreclosure nightmare is not over, now the deficiency judgment you thought was forgiven is now coming back and a credit collector now wants to collect as much as possible from you.
Florida homeowners that had faced foreclosure, and perhaps lost or simply did not defend their suit, are now in a panic. After being served, it is hard to make an informed decision regarding this matter. Sure, you may now be doing much better than you were at the time the judgment was entered. This is what Dyck O’Neal is counting on. While you can see from my other posts, there are defenses to foreclosure cases, and there are also defenses to deficiency judgments, but to put it succinctly fighting a deficiency in court adds to the amount the bank will seek against you. If they do get a judgment, they will then try to garnish your wages or attach liens against your personal property or garnish wages. It is important that you understand that a settlement, and not a final hearing, may be in your best interest.
An attorney can help dramatically in a settlement negotiation. Not only does it give your side more strength in a negotiation, it also shows that if pressed you are not afraid to have a judge rule on your case. If you have recently been served by Dyck O’Neal, and would like to know your options, please contact my office at 813.502.6768 or email me to set up a consultation.
A recent study has made it quite clear – Florida foreclosure filings are still the highest in the country. Specifically, 1 in every 372 Florida homes are the subject of a foreclosure filing, This statistic is troubling to a lot of Florida homeowners. With foreclosure filings on the rise, what will that do to property values? In the short term, many speculate that it can lead to abandoned homes, another foreclosure defense log jam, or “even worse” – short sales!
If you are one of the many homeowners worrying about housing values, have no fear. Short sales are not a new product on the real estate market. Many realtors, and foreclosure attorneys, are finding that short sales are actually going a long way to return property values to more natural standards in neighborhoods that may have experienced inflated values during the real estate boom.
Many individuals notice that foreclosure filings, for some reason, seem to come up in “hot spots” – some neighborhoods have higher foreclosure filing numbers than others that are within the same metropolitan area. This is puzzling to many homeowners – especially those living in areas that are surrounded by foreclosure filings but are seeing very few in their own , but shows a larger issue with values and lending.
This is the primary concern that I have as a foreclosure defense attorney. That the foreclosure filing epidemic in this state will not subside, due in large part to the bank’s greed during the time anyone could get a loan. It is important that if you are facing foreclosure, one of the estimated 20,000 homeowners, you understand what is at play in your foreclosure case.
It is also important to know that you are not alone. Many Florida home owners are in a similar position.If you are facing foreclosure, it is important that you understand your rights and what happened when the bank approved your loan. As I tell my clients: Do not ignore the lawsuit, do not avoid service, do not give up all hope. There are loss mitigation options out there that you may qualify for!
The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. The information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
Bryant Dunivan's office is centrally located in Brandon, FL. From this location, Mr. Dunivan represents clients with a variety of legal issues, including: Foreclosure Defense (including loss mitigation), Bankruptcy, Consumer Protection, Real Estate Law, and Landlord Tenant, throughout the state of Florida, including 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, and Ellenton, and in Collier County, Hernando County, Hillsborough County, Lee County, Manatee County, Pasco County, Pinellas County, Volusia County, and Sarasota County, Florida. 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
Brandon, FL 33511
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.