Served in a lawsuit by Dyck O’Neal Inc.?

Dyck O’Neal Inc. served me in a lawsuit, what does this mean?

If you have been served in a lawsuit recently by Dyck O’neal Inc., or have current pending litigation with Dyck O’Neal, you are not alone. They are a debt collection company – they have purchased rights to old deficiencies from the bank that previously foreclosed on you and it is trying to collect whatever it can on this amount. This company has served thousands of Floridians and are seeking judgments against them. Many consumers are facing upcoming trial dates and summary judgment dates and are faced with having uncertain counsel as to how to best defend these actions as well. If you are facing a deficiency judgment lawsuit or motion by Dyck O’Neal, Inc., having an attorney that knows how to defend against a deficiency lawsuit is paramount to mitigating your damages or having a strong defense.

What is a deficiency judgment

A deficiency judgment is best put in perspective with a simple math equation – say you have a foreclosure judgment entered against you for $100,000.00. Now say that the value of the home that was foreclosed on was $50,000.00. The difference between those two amounts ($50,000.00) is known as a deficiency. The bank, or in this case a new company, can attempt to collect on the deficiency and must obtain a deficiency judgment to do so. These types of judgments are the rule and not the exception. They are very common, and are subject to very limited defenses.

One such defense is the statute of limitations. Basically, for those individuals that have had a judgment entered against them before July of 2013, the banks had five (5) years to seek this 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 judgments now only have until July 2014 to seek to enforce the alleged rights to a 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 could come back and haunt you. Creditors like Dyck O’neal Inc., can purchase these debts, become a debt collector, report on your credit, file a deficiency lawsuit or motion for deficiency, and now seek judgment against you.

What can I do?

Florida homeowners that had faced foreclosure, and perhaps lost a tough case or simply did not defend their suit, are now in a panic. After being served by Dyck O’neal Inc., 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 of the foreclosure, but this is what Dyck O’Neal Inc., is hoping for. 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 or Dyck Oneal, Inc. will seek against you. If they do get a deficiency judgment, they will then try to garnish your wages or attach liens against your personal property. It is important that you understand that a settlement, and not a final judgment, may be in your best interest to avoid these outcomes.

What if you are in ongoing litigation

Over the years, one sad part of these lawsuits that I have seen are the weak pleadings and weak defenses being offered against Dyck O’Neal and their attorney. While I speak highly of settlement – for those doing well – making Dyck O’Neal prove its case and meet their burden is extremely important. Like I tell my clients – when I take a case, I am trying to win. This means knowing what defenses, documents, and data may best help their case and in some rare occasions, may end in a good day.

If you have counsel in ongoing litigation – it’s important that they have defended a case against Dyck O’neal. Case law is coming out each week that dramatically effects what defenses may prevail and which ones may not. Knowing these are a key to court room success. If you are facing a Dyck O’Neal trial or a motion for deficiency judgment and are uncomfortable with your attorney or don’t hear back – it may be time to find counsel you are comfortable with.

How can an attorney help?

An attorney can help dramatically in a settlement negotiation and at trial. 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.

Posted in Deficiency Judgment, Dyck O'neal Inc, Foreclosure Defense, Post Judgment Collection Tagged with:

Featured on WHDT World News Segment – Foreclosure Fraud

Tonight I was featured on WHDT World News discussing foreclosure fraud. They’ve been kind enough to make the segment available on YouTube, so here it is:

Posted in A Good Day

Florida Opts out of Federal Foreclosure Relief Funds

Despite a Massive “Foreclosure Crisis” – Florida has elected to not take federal foreclosure funds to further fix the Foreclosure Situation

In a story that broke over the weekend, the state of Florida elected to not apply for federal foreclosure funds which could have seen an increase of $250m in Federal aid to help support programs like the hardest hit fund and potentially more expansive mediation programs. This decision was highly criticized, including by Senator Bill Nelson (a democrat). While Florida did receive some funding for further use, it failed to apply for funds that could have been over three times that amount!

Apparently, this was an oversight by the Florida Housing Finance Corporation, a group appointed by Governor Scott (a republican) that is charged  with distributing federal funds to aid ailing Florida homeowners. This bears importance as it has been noted that the governor has been reluctant to accept federal funds to aid Floridians. I won’t comment on the obvious partisan politicking we are seeing with the parties here; but why is no one concerned with our neighbors and other families struggling to save their homes?

While the blog here is not political, and not a news blog, this tactic begs a few questions – most notably, how is the state trying to really help homeowners save their home from foreclosure while not taking advantage of millions of dollars that are made available to only those states hit hardest by the foreclosure crisis?

I am hopeful that this decision doesn’t hurt foreclosure defendants or other homeowners – either in the State or Federal Foreclosure system – but I think it might. I’ve blogged here about my trials and triumphs defending foreclosure cases, and shared some insights on why I do what I do as a defense attorney –  but I am interested in hearing from the readers – do you think the state should have taken these funds or not?

 

Posted in Federal Foreclosure Defense, Federal Foreclosure Funding, Foreclosure Alternatives

Attorney Bryant Dunivan Quoted in Tampa Bay Times Article on Debt Collection

I wanted to pass this on to readers of the blog here. I was fortunate enough to be asked my opinion on some egregious debt collection activities being taken by an original creditor:

“Consumer advocates said they were uncertain if Macy’s credit card practices are any worse than other companies. But the experiences suffered by Macy’s customers are unfortunately all too common among all stores and banks issuing credit cards, they said. Often in large companies such as Macy’s, customer account information can get muddled and confused, said Brandon attorney Bryant Dunivan, who sits on the board of the Florida Alliance for Consumer Protection.

He said a debt erroneously posted to an account can be resolved by the billing department; but the collections department may not get correct information. And he said companies are often far too aggressive collecting these debts.

“It gets really frustrating for people,” he said. “They tell one department one thing and somehow those notes don’t go across to another department.”

To read the whole article, head on over to the Tampa Bay Times.

Posted in A Good Day, Debt Collection, fair debt collection practices act, florida consumer collection practices act

Dyck O’Neal Lawsuit Dismissed Without Prejudice – Can’t Refile

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. If you are currently facing a lawsuit by Dyck O’Neal and want to know if all defenses in your case are brought on your behalf, call my office today.

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 (but has now sadly been repealed by the legislature effective July 1, 2016), 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 was. This is because 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. Facing a motion for rehearing and you are concerned it’s not being defended properly – shoot me an e-mail!

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. 

 

Posted in A Good Day, Deficiency Judgment, Due Process, Dyck O'neal Inc

Loan Modification Foreclosures Rising

The recent rise in Loan Modification Foreclosure (i.e., foreclosures based upon a default after the loan has been modified) is creating a swell in foreclosure cases throughout Florida

As loan modification foreclosure rates increase, a number of home owners throughout Florida will be wondering what they can do.  Most often, these modifications came at a time when you needed it the most. These are entirely different agreements and are subject to a wholly different group of defenses.

Generally, a modified loan is one that has already been in default once. It could have been modified during an active foreclosure case and often times, there are certain things that you agreed to. For example, the loan modification may have stated that you recognize an amount due and owing to the bank that is giving you the modification. You may have admitted to the allegations that were made in the underlying foreclosure case. It may state that you gave the bank all of your income. It could have required you to sign that all the information you provided was true and correct. Generally, this modification by the bank will create a new payment and a new interest rate.

Defenses to Loan Modification Foreclosures

Just like there are defenses to Foreclosure on a traditional Note and Mortgage, there are defenses under a modification. For example, a number of these modifications were based solely on income and did not take into consideration the total liabilities of the borrower. Additionally, the same terms of the Note and Mortgage will apply unless they were expressly modified by the modification. This means you may have to have been sent a new paragraph 22 letter or the bank would have had to complete other conditions precedent prior to bringing the foreclosure action. A modification also can change the principal balance of the loan, which brings about its own issues to the enforcement of the note and mortgage.

Can you modify again if you have defaulted on a loan modification

Unfortunately, it depends. I’ve seen some modifications in years past that were modified even after there was a default on an original modification. But many programs that the banks used prior to the loan modification are not available anymore. This can make it very difficult to keep your home if no options are available.

Posted in Foreclosure Defense, HAMP Loan Modification

No Statute of Limitations in Foreclosure Cases

3rd DCA Rules in Deutsche Bank National Trust Company v. Beauvais that there is no acceleration of Note until final judgment is entered and therefore no statute of limitations in foreclosure accrues

Let me preface this post with my bias up front. I disagree with this decision which basically finds that there is no statute of limitations in foreclosure cases throughout Florida. My name appears on the opinion as an Amici with my colleagues at the Florida Alliance for Consumer Protection. I think the 3rd DCA got it wrong – and the split is evident by the 6-4 nature of the vote. That being said, this case is the law of the land in the 3rd DCA, so it must be followed.

Esstentially, the 3rd DCA joined its sister courts in following Singleton – a case that basically holds that where different defaults are alleged a separate cause of action and acceleration can occur on the Note. This is a long opinion, and it is evident that the judges on each side put a lot of thought into the basis for this decision. Their decision is based on a premise, which the third dca expounded upon pretty significantly, that finds that acceleration is not actually done (the full amount on a note is not due)until a final judgment is rendered in the foreclosure case. This is despite the fact that acceleration has been alleged in the complaint.

The dissent is really scathing of this premise, and it is the view that I am hopeful that the Florida Supreme Court adopts when it issues its opinion on Bartram in the next year or so. Now, more than ever, the statute of limitations must be carefully alleged in a foreclosure case – and I fear that things will only get worse going forward. If you think this defense applies to you – seek an experienced attorney and consult with them

Posted in Foreclosure Statute of Limitations, Second Foreclosure Lawsuit

Do I Need an Attorney to Buy or Sell Real Estate in Florida?

Real Estate Attorney’s are required when purchasing or selling real estate in other states, but not here!

To most real estate purchasers this is the most confusing aspect of a Florida real estate transaction. Some states explicitly require that a real estate purchase or sale have an attorney representing each side. This is not the case in Florida. As you can probably imagine, not having an attorney can leave you open to many issues. In this blog entry we’ll discuss some of the most common issues encountered by potential clients – both sellers and buyers.

Out of state seller or buyer

This is the most common scenario where a real estate attorney is highly recommended. In any given market, such as Tampa or Hillsborough County, there are things that one who lives here would know and things that can be hidden from a buyer or seller of real property. Some aspects could be title insurance payment – some counties (Leon, Miami-Dade, etc.) typically have the buyer purchasing this insurance and then picking the closing agent. Hillsborough County, which includes Tampa, Riverview, and Brandon, is typically a “seller” pick county. Being familiar with what a seller should be prepared to pay for in a real estate transaction is a benefit of having an attorney competent in real estate matters.

Understanding what areas have particular problems, or what to look for, can be very helpful to a buyer. For example, some communities in Florida were ravaged by “chinese drywall,” a corrosive building material that literally destroyed copper piping in homes and caused many Floridians health issues. Some communities have had more occurrences than others. Having an attorney may help uncover some lesser known issues such as this.

New Home Buyer

I see this one more widely in reviewing sales contracts and closing documents for buyers. Most homeowners, when buying their first home, think that a construction company does not sell properties that are “blighted.” Let me be clear, I am not talking about physical defects with the construction of the home. I am talking about “title blights.” Some of these can be in the form of a non-conforming parcel: a piece of the property being built over an easement, failure by the builder to build the home pursuant to applicable lot set-offs (e.g., foundation cannot be within five feet of the lot line), or not being deeded the whole property that they thought they bought.

These issues can range from small headaches (having to get the county to approve a variance or vacate an easement) to a major legal issue (having to file a quiet title action on a home you just purchased.) More simply put – seeing the issue before closing is a much better situation to have than dealing with it after.

Knowing what the Title Report Says

As a real estate attorney, I am also a title insurance agent (full disclosure: I underwrite through Old Republic). Some of the most frustrating issues I see are individuals that buy real property and are not told what title encumberances they are taking subject to. This can be things such as mortgages, HOA liens, electric company easements, HOA declarations, etc. Knowing what these issues are, generally for the buyer, can often help inform a consumer about the perils of the piece of property they are buying.

If you are buying or selling a house in Florida, speaking with a real estate attorney may be something you want to look into.

Posted in Real Estate Attorney

Foreclosure Statute of Limitations

Foreclosure Statute of Limitations in Florida – a question asked everyday, with a difficult answer

More and more, I am asked my legal opinion about the foreclosure statute of limitations in Florida. I’ve spoken on it, speaking on behalf of borrowers in a panel of attorneys answering this precise question. I’ve helped write on it in an amicus brief, requested by the 3rd District Court of Appeals, in Deutsche Bank Trust Co. Americas v. Beauvais, et al. (hat tip to the Florida Alliance for Consumer Protection) and am closely following the pending Supreme Court decision in Bartram. It’s causing a lot of headache for homeowners – especially those that are having a second, third, or even fourth foreclosure filed against them again. This is being done at a time when many foreclosure defense attorneys are leaving the practice, and stands to only work to the detriment of home owners.

So – what’s the answer?

Unfortunately, it depends. It depends on what the Florida Supreme Court holds in Bartram, and what the 3rd DCA holds in Beauvais. This is the threshold question for a lot of home owners. At first glance, Fla. Stat. 95.11 reads fairly clear – 5 years to foreclose on a mortgage. But now, courts are dealing with distinctions between a dismissal with prejudice and without prejudice, deceleration and the terms of the mortgage and note, etc. The banks argument is simple, despite calling the whole loan due, each installment represents a different default. At this point, with over 9,000 active foreclosure cases pending in Hillsborough County alone, the bank needs every thing on their side in an effort to foreclose on properties after being beat in court. As I’ve always said – there is no such thing as a free house in foreclosure.

What am I supposed to do? Do I Wait?

Given that the future is unclear here I am urging homeowners to speak to a attorney that actively defends foreclosure lawsuits while these cases are pending in their respective appellate court. It’s not as simple as “bank waited too long to foreclose” – each missed payment is its own default. That means a running 5 year period until 5 years after the maturity date of the mortgage.

If you are defending your second, third, or fourth foreclosure there is an even larger need to have someone that is familar with the statute of limitations argument. Each default in each case matters, the time after default to filing matters, the letters you were sent leading up to your case, etc.

Posted in Foreclosure Defense, Foreclosure Statute of Limitations

REO Title Cloud – Bought Home From Bank and Now I Can’t Sell

A Title Cloud can be a problem for any homeowner or investor that purchased a home from the Bank after it foreclosed!

A recent story in the news has me pretty upset – and feeling bad for a family that was just trying to make a good deal. A title cloud cost a family a home and a whole bunch of money. Word of free advice – if you are buying property, buy title insurance! Please, I beg you. Protect your investment. For those of you reading this, thinking about buying a house from a bank after a foreclosure (a REO, or “Real Estate Owned” – a class of property owned by a lender) despite all the addendum issues.

What is a title cloud

A title cloud, or in the legal context a “cloud on title” is something that calls ones ownership of real property into dispute. It can be something such as the wrong legal description on a deed, a “wild deed” that comes to light later, an unresolved claim of lien (mechanics or HOA), or a foreclosure that did not extinguish all interests in the real property.

How are you affected

Real property owners won’t often be able to see how a title cloud affects them. It is basically summed up, in its simplest terms, in the following scenario. Buyer goes shopping for a home. Lands on a home that is listed for $150k in a neighborhood where all of the property values are significantly higher. Is told that it is “bank owned” and that it needs some work. Most people, seeing the great deal and hearing foreclosure stop there; after all, when does a foreclosure happen by a bank that is not in “first position”? The title cloud shows itself when you learn that the “bank owned” property is owned by the second mortgage holder – this means that whatever bank is in first can then foreclose on the property you just bought when you haven’t missed a payment and have no contractual relationship with them.

How Do You get Help?

Like I said – I’m upset for the family on this. I am willing to meet with everyone via a telephone conference, for free, that bought a home from the bank after a foreclosure and has a title insurance policy on their home. I will also make myself available for anyone that is thinking about, or buying, a bank owned property. At my firm, I represent clients from the open house to the court room, and its important that you understand what buying a home means. Even if it’s from a bank…

Posted in Real Estate, Title Cloud

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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


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330 Pauls Dr., Ste. 104
Brandon, FL 33511


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