Real Estate Property Inspections

Recently, I was posed a question from a blogger over at realtor.com where they were looking for a real estate attorney to talk about home inspections gone wrong and how to mitigate risk. It’s an important issue and, while they were asking about real estate inspections and liability for the inspector, and  I don’t know if that will see the light of day, but my answer was as follows:

“There may be a [possible] cause of action against the home inspector; however, a great deal of home inspection contracts attempt to waive certain issues that may arise from the inspection (some even recommend getting a second opinion). If a home inspector misses something big, the contract to employ them should speak to that. A common cause of action in this instance is a professional negligence cause of action. Sometimes there may be a insurance policy covering the inspector, and this may be the primary source of recovery.
In terms of making sure the job is thorough – being there during the inspection can help. Make sure the inspection company is licensed, bonded, and insured. Making sure they actually enter attic spaces and crawl spaces can help too. A report should be generated for your review. There should be pictures taken during the inspection.
In a Florida real estate transaction – the seller has to disclose known facts materially affecting the value of the property which are not readily observable and are not known to the buyer. As an inspection is more thorough it helps to further explore issues with property that the seller may not know about.
Overall, inspections are designed to help inform the buyer. It’s the buyer’s job to make the most of the inspection so as to inform themselves. Picking a reputable inspection company is key.”

Every scenario is different, but if there is an issue with a home inspector, a fresh set of eyes may be beneficial to you.

 

Posted in Real Estate, Real Estate Attorney

Frontier Communication Billing Issue – Can you sue?

Verizon Fios has become Frontier Communication, and it’s causing consumers a lot of headaches.

For years, Verizon Fios was a service that Floridians relied on every day for their internet, television, and telephone. Recently, a new company purchased this service – Frontier – and took over providing service and billing. Frontier’s billing practices have been the subject of many articles showing what issues they have caused. As a consumer protection attorney in Florida, I have been asked if there are grounds for a lawsuit, and have been researching possibilities. If you have been affected by a Frontier Communication billing issue, we are available for a consultation.

Can Floridians Sue Frontier or other new service providers?

It depends. There may be a way that Frontier Communications, or a similarly situated company, is arguably liable to consumers. Under the Florida Consumer Collections Practices Act, it is a violation for a person to “[c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.” Fla. Stat. 559.72(9). Many people find that this is vague and hard to understand. Basically, in attempting to collect a consumer debt – a personal, family, or household debt – there has to be a legal right to the money. Companies that have taken over consumer accounts arguably run into some issues when it comes to their billing practices.

A resident of Florida that was only paying for internet with Verizon may be the easiest example. That person is only using one of multiple different services that Verizon may have offered. Now, generally there is a contract to that service. After the account is transferred to the new provider, the contract should have transferred with the same details that Verizon had. In some instances, this contract was not properly transferred over and the consumer may be charged for more services than they had agreed to pay for (e.g., internet and cable).

More issues may arise if the billing changed after an account was already late or delinquent and may open up more possibilities of suit. The state version of this statute allows for actual damages (if you paid the wrong bill), statutory damages (up to $1,000), and attorney’s fees and costs.

What about a Frontier Class Action?

Honestly, there may be some pending at this time given the scrutiny that has come their way from the State of Florida. In an effort to help Florida Consumers, my firm is speaking to those affected to try to determine the best options for them, some of which may be litigation.

Posted in Consumer Protection, Frontier Communications

Setting Aside a Default Judgment on the Day of Trial

Today, I was able to overcome a Motion for Default on the day of trial

With some exceptions, a Motion for Default, and a subsequent default, can be a death knell for a Civil Case in Florida. Brought pursuant to Fla. R. Civ. P. 1.500, a clerk’s default can be entered when a party – most likely a defendant – has failed to file any paper or pleading in a pending lawsuit. I see this pretty commonly in Foreclosure cases throughout the state of Florida. Generally, the banks are telling consumers that they will not try to foreclose as long as the borrower is trying to modify the loan. What they don’t tell you is that they won’t tell their attorney of their conversation. This generally results in a Motion for Default being filed despite a home owners best intentions. Many times, even after the motion for default is filed and entered, there is no notice to the consumer.

What is a default?

A default literally means that you have admitted to all well pled facts of the Complaint. This means conditions precedent, a parties standing, liquidated damages, and even in some instances jurisdiction and venue. This eliminates any chance you have as a defendant to enter defenses or conduct discovery. It is generally something that signals to both the judge and the represented parties in the suit as a waiver of the right to defend in a lawsuit.

How can this be bad at trial

A Motion for Default, or default judgment, is dangerous for a trial. Defenses that may have existed have been waived by nature of the default. This puts you at a significant disadvantage. You would only be able to contest unliquidated damages of the cause of action, allege that the bank failed to state a cause of action, object to some evidence, or potentially fight a court’s jurisdiction over the case. Outside of that, a judge will pretty quickly stop you from defending given the default.

This is troublesome, especially in a foreclosure case, for a number of reasons. It shortens the time period it takes the bank to get judgment significantly. In some instances, judgment can be entered in as little as six months. If you are interested in saving your home, you may not get a chance at mediation or loss mitigation. If you made payments after the alleged date of default or if the bank does not really have your note, the judge may never hear these arguments.

If a default is entered against you, can you fix it?

If a default has been entered against you, and you have a trial date rapidly approaching, you have to seek out counsel. A motion to set aside or vacate a default is very precise in what must be laid out. There are certain things that must be alleged, it must be brought diligently, and there has to be some sort of defense. Failure to show the right things can result in the motion being denied. If you are facing trial with a default, the odds are already stacked against you, and a motion to set aside the default may be a long shot as well.

Posted in Default Judgement, Default 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., 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

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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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