Vantium Capital Inc., Deficiency Judgment Motion – What does it mean?

A Motion for Deficiency Judgment has been filed in my old foreclosure case by Vantium Capital, what does it mean?

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.

Who is Vantium Capital?

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.

What is a Motion for Deficiency Judgment?

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.

How can it affect you after a 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 813.677.1112 or email me to set up a consultation.

Posted in Deficiency Judgment

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., 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!

What is a deficiency judgment

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.

What can I do?

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.

How can an attorney help?

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 813.677.1112 or email me to set up a consultation.

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

Forida Foreclosure Filings are Highest in Country

Florida tops nation in foreclosure filings

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!

Posted in Florida Foreclosure Rate, Foreclosure Defense, Loss Mitigation

Foreclosure Trial Next Week – Can I Save my Home

I have nowhere to go, I haven’t defended my foreclosure, can I save my home?

This is one of the most frustrating scenarios I face in practice on a day-to-day basis. A homeowner that hasn’t defended a foreclosure lawsuit, or didn’t even know they were being sued, and is facing a non-jury trial in the next 3-10 days and meets with me asking “how can I save my home?” This is a question asked to me, everyday, by homeowners throughout the state of Florida that are involved in a foreclosure lawsuit. It used to be a very frustrating situation for me, as I could see the desperation in their eyes, only to be told, “there’s not much you can do.” You see, I’ve been told by my staff, clients, and other attorney’s that I litigate foreclosure cases aggressively. I am not afraid to make the bank prove they have the right to foreclose on property and try to poke as many holes in the evidence that is offered as I can. Usually, the bank overcomes the defense and can foreclose, but at least it had to prove it and meet its burden. My ideal case, however, doesn’t go to trial – it ends in either a loan modification, short sale, or deed-in-lieu. Those cases, where there were 3-10 days prior to trial, usually couldn’t end that way, and my client could have been facing a significant deficiency judgment based merely on when they hired me. But not anymore…

What changed then?

Most foreclosure defense attorney’s in Florida faced the same issues, the state of Florida wants to foreclose on property more efficiently, at great costs to a homeowner’s rights. Home owners finally got some relief, by way of a recent addition to the Real Estate Settlement Proceedures ActA little know change to this act was a provision that protects homeowners looking for a loss mitigation alternative to foreclosure (e.g., a short sale, loan modification, deed in lieu, or other workout option.) Basically, it requires that loan servicing companies fully review your loss mitigation documentation prior to trying to get a final foreclosure judgment or proceed with a sale of the home. In essence, it gives homeowners another chance at answering the question “can I save my home,” in the affirmative. It also gives a more complete review to short-sale and deed in lieu requests as well, which may be the difference between a deficiency judgment and a deficiency waiver

How does it work?

Basically, the exact requirements vary by the lender, but you are required to submit a full loss mitigation package to the servicing company for your loan. Notice, I said FULL. Not partial. Not most of it. BUT FULL. This process is extremely frustrating and tedious, as it requires specific documents, filled out a certain way, and submitted to a particular department. They also can only be a maximum, for the most part, of sixty (60) days old. If you are trying to do this on your own there is no doubt, it is incredibly frustrating. Even my staff gets frustrated at times with the banks – they lose documents, they request the exact same documents over and over, they don’t have an update when they are called three days after receiving documents, it is always the same story. But when applying for a loan modification under this new law, it is often the last chance for a homeowner to save their home. If a homeowner is doing a short sale negotiation, it is often the last time that they can try to work out something with the bank and hopefully remove any deficiency judgment from the table.

My trial is in X days – what do I do?

If you want to take full advantage of this new law, I recommend consulting with a foreclosure defense attorney, especially if you want to try to save your home. If you are facing foreclosure, and want to try to save your home, this may be the last chance for a loan modification. If you just want to avoid a deficiency judgment, using this change to RESPA may help you get a short-sale approval that waives a claim for a deficiency. It is important that if you retain an attorney, you fully cooperate with him or her in order to comply with this new law and submit all the required documentation. If you have any questions about how this law may help you, please contact my office at 813.677.1112.

Posted in Deed in Lieu, Foreclosure Defense, HAMP Loan Modification, Loss Mitigation, Short Sale, Tampa Foreclosure Defense Attorney

Defending Against Show Cause Order in Foreclosure Cases

How do I defend against a Show Cause Order in a Foreclosure?

A question I seem to be finding a lot of visitors searching for relates to the defense of a foreclosure lawsuit after a show cause order has been entered. Unlike my previous post, it doesn’t just have to be the HOA. Remember, any lienholder can motion the court for a show cause order. A brief refresher as to what it is – a show cause order is essentially a summary judgment. You, as the defendant, are given the burden to show why a final judgment should not be entered in your case. This final judgment, if entered, sets the sale date of your home. As you can tell, it is a VERY serious hearing. I’ll spend a few minutes here laying out some rudimentary options that you have and some downfalls you may face in each.

Hire an Attorney

The more expensive approach, sure, but also the most informed. Also, I’ll admit my bias here – I am a foreclosure defense attorney. Even if you retain another law firm, I still think that hiring an attorney gives you, the home owner, the best chance at successfully defending against a show cause order. Why you may ask? Look at the Complaint you were served with, the order setting the hearing, and the show cause statute. Sitting here, typing this, I can think of at least ten issues to look for on each document. I’ll spare you from the minutia of detail (as most foreclosure cases hinge on technicalities) but a foreclosure defense attorney should be experienced in handling show cause hearings to defend against them. They should also be up to date on the law and now what defenses to bring to a show cause hearing with only those documents. It is important to keep these documents if you are thinking of hiring an attorney, and these may provide some defenses from the onset of the case.

Hiring an attorney also takes a great deal of stress off of you. You aren’t charged with defending your home and winning a very serious court hearing, your attorney is. That being said, it is very possible that your attorney can lose at this hearing, some of the nuances of your case stem largely from your files. It is important, if you are thinking of hiring an attorney, that you provide your attorney with your files and documents that you have received in this case. Certain defenses to a foreclosure case can be broken or made by what mail you received and what mail you did not. Accordingly, if you have kept some items the bank sent you prior to default, you should bring those into your attorney should you retain one.

File Bankruptcy

Another common option. Generally, filing a bankruptcy creates an automatic stay in the foreclosure case and can get the show cause hearing cancelled. There are some times when a bankruptcy may not be your best choice, but an experienced bankruptcy attorney can help that decision. Some things to think about before meeting with an attorney are: (1) what is your debt load like? Is the house your only debt? (2) are there a lot of student loan debts that comprise your debt load? Generally, these are not dischargable. (3) are many of your credit cards in collections? Are creditors calling you constantly?

As you may be aware, I tend to recommend filing bankruptcy when there is a lot of other debt – if it is just the house, you may be able to survive the show cause order and successfully modify your loan or do a short sale of the home. This is mainly because, while the show cause hearing is risk, the credit impact of a bankruptcy can affect you for up to a decade. If it is possible to mitigate harm to your credit and your damages in your foreclosure suit, then fighting the show cause may be a better option. Outside of the credit implications, filing bankruptcy can result in you having to make payments to a trustee for years if you file under chapter 13 of the bankruptcy code.

Going Pro Se

Pro se literally means fighting the bank as your own attorney. I do not recommend this. I have seen many home owners try to defend their suit only to lose their home without working something out with the bank. If you cannot afford an attorney and want to fight the show cause order the statute is very clear on what you must do. You can defend yourself a number of ways, but the statute is very specific. The order should contain this language too:

“State that, if a defendant files defenses by a motion, a verified or sworn answer, affidavits, or other papers or appears personally or by way of an attorney at the time of the hearing, the hearing time will be used to hear and consider whether the defendant’s motion, answer, affidavits, other papers, and other evidence and argument as may be presented by the defendant or the defendant’s attorney raise a genuine issue of material fact which would preclude the entry of summary judgment or otherwise constitute a legal defense to foreclosure. The order shall also state that the court may enter an order of final judgment of foreclosure at the hearing and order the clerk of the court to conduct a foreclosure sale.”

That outlines the basic need for how to defend the case. But, it is imperative you do so properly. If you are going to defend yourself you will be held to the same standard as an attorney. It is important that you find out what you have to do in order to successfully defend your case.

As you can tell, there are a lot of options to defending against a show cause order. I hope this has provided some insight into what can make or break your defense at the hearing. If you are still unclear as to what options you have, I offer a free consultation to go over the show cause order, the complaint, and your situation to determine what the best fit for you

Posted in Accelerated Foreclosure, Show Cause Order, Tampa Foreclosure Defense Attorney

Florida Hardest Hit Fund and Foreclosure Defense

While in court today, the hardest hit fund was brought up and some time was spent discussing a huge problem , and often overlooked aspect of the fund, with it. The fact pattern seems to be the same – a borrower is in an active foreclosure lawsuit, applies for (and is accepted into) the hardest hit fund, the fund starts paying the creditor (the bank), and tells them that the foreclosure lawsuit will stop. This is not the case. If you are in the hardest hit fund you still need to defend your foreclosure lawsuit!

What is the Hardest Hit Fund
Think of the hardest hit fund as a different kind of reinstatement. It requires a very specific hardship – divorce, disability, and death do not qualify. It requires unemployment, or underemployment, that is not your fault. This is different from a loan modification – not every hardship qualifies you. If you do qualify the fund may either provide mortgage payments or pay off your arrearages (directly to the servicer) in order to get you current or keep you current with your mortgage.

Sounds Great Right!?!
Not if you have on ongoing foreclosure case. If so, the advisors may forget to tell you to defend your case and keep the court informed as to developments with your participation in this fund. If you do not do so, it can have dire consequences. If you do not hire a competent foreclosure defense attorney, or at least defend the suit on your own, you may still end up losing your home even after you have gotten into the fund and had them pay money to your servicer.

If you have applied for the hardest hit fund, have been accepted and your servicer is receiving payments, it is still important that you defend your foreclosure case until your suit is dismissed by the bank. If you would like to schedule a consultation to review your case and your status in the hardest hit fund, please call my office at 813.677.1112 or email my office.

Posted in Foreclosure Defense, Hardest Hit Fund, Reinstatement

HOA Show Cause Foreclosure Process

What is the HOA Show Cause Foreclosure Process

In my last post, I highlighted just what is at stake with the new foreclosure law. In brief, the newly amended Florida Statute 702.10 now allows for the HOA, a junior lien holder on most homes, to foreclose on your property from within the bank’s lawsuit in as little as 45 days. Many foreclosure defense attorneys are referring to this as an HOA Show Cause Foreclosure scenario.

This sent shock waves throughout Florida – and most notably in Hillsborough County (where foreclosure rates are among the highest in the state. Not only could HOA’s foreclose on properties for pennies on the dollar, but they could do so at a rate much faster than many of the big banks.

How can they Foreclose on my home that quickly?

In Florida, an HOA is paid assessments. These assessments go toward the upkeep of the community where the home is located – things like grass clipping, public maintenance, and even mailboxes. When these assessments are not paid, the HOA can basically put a lien on the property. This lien is recorded against the property and can be foreclosed on.

In Florida, this lien is generally a junior lien. This is why in a standard mortgage foreclosure action you will see an HOA noticed in the law suit. Within this lawsuit, only banks used to be entitled to an accelerated process. They would file a motion, get an order (with a hearing date), serve you with a complaint, and then you only had a finite period of time to defend yourself in the foreclosure action. If you failed to put on a defense, you were foreclosed at the show cause hearing. It is an extremely important hearing – if you have been served with a show cause order in a foreclosure lawsuit it is highly important that you contact an attorney!

How can an HOA use this expedited process?

Inside a foreclosure lawsuit if the HOA is a defendant they can use the show cause motion and subsequent order to expedite the foreclosure, they can foreclose on your property as a co-defendant. Once they get a show cause order they essentially speed up the bank’s case to a final hearing well before the lawsuit has fully ran its course.

Now, I know what you are thinking. What’s a show cause hearing anyways? Basically, it is a summary judgment hearing. This is a final judgment prior to trial. If this is the case, and the bank or HOA is successful in winning at the hearing, it can have dire consequences in your foreclosure action. It could potentially cost you your chance at a loan modification or short sale.

What can I do to prevent this?

A show cause hearing places an extremely high burden on defendants. It requires a very nuanced knowledge of the foreclosure process as well as current Florida foreclosure law. If you are interested in discussing your options prior to a show cause hearing, you can schedule a free consultation with my office.

Posted in Accelerated Foreclosure, HOA Foreclosure, Show Cause Order, Tampa Foreclosure Defense Attorney

New Florida Foreclosure Law – What it means for you! [Part 1]

New Florida Foreclosure Law allows bank to accelerate foreclosure filings!

As you may know, a new Florida Foreclosure Law has been signed by the governor  What this means for homeowners has some both good and bad implications for you – the home owner. This new foreclosure law significantly speeds up the process by which HOA’s and banks can foreclose on your property. If a lawsuit is not properly defended, it can do so in as little as 45 days. Thats right, 45 days!

Wait, an HOA can foreclose on me under the new foreclosure law?

Yes, you read that right. In Florida, any unpaid HOA fees can turn into a lien on your property. In Florida, an HOA can foreclose on that lien and your home. The new law actually now gives the HOA’s access to an accelerated process. If you do not defend the lawsuit and a show cause order has been issued, the HOA can get a final judgment at that hearing.

This dramatically shifts the timetable in a foreclosure case. Generally, after being served with a complaint, and an answer is filed, discovery is requested. Discovery asks for several things – including original documents – that can take some time for the bank or HOA to gather. This is done to ensure that the party suing you (the plaintiff) has the proper standing to bring their lawsuit and obtain a final judgment.

How is this a bad thing?

Most people are unaware that an HOA can foreclose on their property. Under the new Florida Foreclosure law, they can now do it even faster than before. This is bad in two ways: one, if your house gets foreclosed on by an HOA, you lose the most important asset in a bank foreclosure – your home. This severely limits what you can do in mitigating a bank’s foreclosure and may render certain loss mitigation options impossible. Second, if you are foreclosed on under the new accelerated foreclosure statute, you could be looking at having to rent a new property, put down the security deposits and  uproot your life, in as little as 45 days.

If you have been with a Show Cause order, time is of the essence. Any foreclosure under Florida Statute 702.10 could have significant impacts on your future. If you have been served in foreclosure and see that there is a show-cause order, call my office today to set up a free consultation at 813.677.1112!

Posted in Accelerated Foreclosure, HOA Foreclosure, New Florida Foreclosure Law, Show Cause Order, Tampa Foreclosure Defense Attorney

Hillsborough County Has Highest Foreclosure Rate in Florida

According to a recent news article, Florida led the nation in foreclosures for 2012. This, sadly, hasn’t changed – Hillsborough County still has one of the highest foreclosure rates in the state. While this may be unnerving to some, it is worth noting that the foreclosure dockets throughout the state are finally starting to work efficiently.

Many homeowners have seen their cases languish in the court system - frustrating their mitigation options and causing reinstatement figures to sky rocket.  There are many options for those being served with foreclosure papers that were simply not  available to borrowers a few years ago, such as the  Residential Mortgage Foreclosure Mediation Program.

There is also more case law defining key foreclosure defenses that are used by litigators everyday. Whether it deals with bad assignments of a mortgage, improper endorsements on a note, or an improper verification under the rules of civil procedure  the courts are now deciding these issues.

There have been some other additions to the scenario – such as magistrates hearing foreclosure cases throughout the state.  There have also been significant modifications to the HAMP Program – a government program designed to get struggling home owners into “lower payments”.

If you have been served with foreclosure papers within the last 20 days, my office offers a free consultation. Feel free to call my office at 813.677.1112 to set up your free consultation with me!

Posted in HAMP Loan Modification, Hillsborough County Foreclosure, Tampa Foreclosure Defense Attorney

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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 represents clients in the cities of 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.

Bryant H. Dunivan Jr., Esq.
of Christmas Spano & Owen, PA
10101 Bloomingdale Ave., Ste. 201
Riverview, FL 33578

Offices: Tampa, Clearwater, Tallahassee, Riverview

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.

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