Navient Phone Call & Debt Collection Harassment

Navient, formerly known as Sallie Mae, may be harassing borrowers through phone calls, text messages, and written correspondence

Delinquent or unpaid student loan debt is at an all time high. Despite this, there is little to nothing that a borrower can do. There are virtually no loan modifications, no reinstatements, and vast credit impacts that each borrower faces. The silver lining, if the collection efforts by loan company are extremely aggressive, is that the borrower can sue for harassing phone calls made. One of these companies that I frequently hear complaints about, from both their own borrowers and from other attorneys, is Navient.

If you are late on your student loans that are serviced by Navient, and are experiencing aggressive collection techniques, there are a variety of consumer protection statutes that protect borrower’s throughout the state and country. The primary ones are the Federal Telephone Consumer Protection Act, the Florida Consumer Collection Practices Act, and the Federal Fair Debt Collection Practices Act. These protections are limited by timing – in some instances as quickly as one year after Navient’s violation. This can include unlawful collection practices; including when a debt collector threatens you with jail for unpaid debtor or discloses your debt to a third-party. Additionally, if Navient, during its first communication with you fails to tell you that they are a debt collector and they are trying to collect a debt, a violation may accrue.

One common complaint is that the debt collector may be using automated phone call devices that target a borrower’s cellular phone and calls over three times a day. This is despite the borrower asking them to stop calling.

If you are currently delinquent on your loans with Navient, and are getting harassed by phone calls or rude service representatives, you may have a cause of action against them. If you would like to discuss your options with an attorney and have phone records and knowledge of what phone calls were placed by Navient, call my office at 813.502.6768!

Posted in fair debt collection practices act, florida consumer collection practices act

Tenant Rights in Florida Foreclosure Cases Being Protected with New Legislation

Tenant Rights in Florida Foreclosure cases are now, to some degree, being protected by the state

In a new statute, signed by the Governor just this month, titled Termination of Rental Agreement upon Foreclosure (Fla. Stat. 83.561) certain tenants are being offered a thirty (30) day grace period following the foreclosure of the property they are living in after receipt of a thirty (30) day notice which must state, summarily, that they are “hereby notified that [their] rental agreement is terminated on the date of delivery of this notice, that [their] occupancy is terminated 30 days following the date of the delivery of this notice, and that [the new owner] depends possession of the premises on a [date certain].”

This new notice requirement goes on to say that if the tenant does not vacate the premises by the specified date, the court can then be asked for an order allowing the new owner to remove the tenant and the belongings from the premises. The tenant is still obligated to pay rent during the thirty (30) day period for any amount due, and an address to pay rent to must be specified. This notice must be sent in a very specific manner, pursuant to Fla. Stat. 83.56(4).

This new law designed to protect tenant rights in Florida foreclosure cases only applies to tenants that aren’t parties to the underlying foreclosure documents, or related to them, that the rental agreement is a “bona fide” lease which was negotiated pursuant to market value, and that the rent rates are near that value.

While I do applaud the legislature for trying to protect tenants at foreclosure, and must give my colleagues at the Florida Alliance for Consumer Protection all the credit for getting this bill through the red tape, I urge tenants living in foreclosed properties or owners purchasing properties at foreclosure, to contact a licensed Florida Attorney for help navigating this brand new law.

Posted in Foreclosure Defense, Tenant Rights in Foreclosure

Chapter 7 Lien Stripping in Bankruptcy – US Supreme Court Weighs In

Chapter 7 Lien Stripping violates the bankruptcy code according to the Supreme Court decision in Bank of America v. Caulkett.

In a recent ruling, the United States Supreme Court ruled that debtors in a chapter 7 bankruptcy can no longer strip wholly unsecured mortgages (e.g., a $200,000 home with a $210,000 first mortgage and a $50,000 second mortgage)  from their real property (home or investment property) pursuant to 11 USC 506(d) if the mortgage is both secured by a lien and allowed under 11 USC 502 (referenced as ‘Chapter 7 lien stripping’).

Previously, the 11th Circuit (which governs Florida Bankruptcy Courts) was bound by its prior decisions that expanded the requirement of 506(d) where the lien was not allowed and therefore void. The implications of this ruling will affect a limited number of Chapter 7 bankruptcy petitions, due in large part to the rising values of homes and the impact this has on subordinate liens (second mortgages, HOA liens, mechanics liens).

Put simply, prior to the decision, if a Chapter 7 debtor owned property worth $100,000, but had a first mortgage of $120,000 and a second mortgage of $40,000, the debtor could “strip” or void the mortgage thereby making only the first mortgage secured. This is no longer the case and where there is an allowed secured claim, even if totally unsecured in a value sense, the lien would still then attach to the property for the statutory enforcement period pursuant to the statute of repose.

It is important for individuals closing on real property where they have stripped a lien to know of this recent change in the  law. Further, it is important for those that have closed on real property to know what what implications this may have on the marketability of their title going forward.

Posted in Bankruptcy

What if Your Attorney Stops Doing Business or You Can’t Reach Them?

Every individual’s biggest fear in active litigation is that their attorney will stop representing them, that they cannot reach their attorney or there is no response from attorney’s firm, that the law firm has closed its doors, or you just found a plethora of complaints against your attorney.

Here, I will try to give you pointed advice on what to do if you find yourself in the worst position for a party to a lawsuit to imagine – your lawyer’s offices closed, he or she has stopped responding to your emails and phone calls, your calls don’t go through to their firm, you have found way too many complaints against your lawyer, or even if he was sent to jail. The bottom line – time is of the essence so you can minimize the impact to your case. It reminds me of my time doing internet marketing – a wide array of clients would consult with me after their current service had either disappeared or was not returning their phone calls. A few of the advice I would give there still has value:

Try not to panic

I know that is easier said than done. If you cannot contact your attorney or there is no response from an attorney – don’t start posting things on social media asking or making complaints. If someone from the other side of the law suit sees this, it may give them ideas on how to aggressively litigate your case while you may be dealing with this.

Recall your last conversation with your attorney

Did they recommend you go late on your mortgage? Did they say they may be in court a lot during the week you are trying to contact them? Are you able to reach anyone at that lawyer’s office? Can you physically visit the office and walk in? What was the last status update you received from them or their staff? How about pleadings/motions? If you haven’t received anything and don’t know how to answer these questions, please, get a free consultation from an attorney. If no one will talk with you, I will.

Gather the important documents

I am trying very hard to not scare you, but this part will. Gather everything and bring it to the consultation with your attorney. Insist on an in person consultation. If you think you have enough information – you may not. If you walk in empty handed, bring a note pad. It is very important, going forward, to get as much information about your case. You may find that you were represented very poorly and that what you were told does not match reality. This is sadly the case in many situations. The goal here is to get information and be in a position to react to it.

Be Honest with Your Goals

If your case has been ongoing for years, you may be facing a hostile judiciary, an a bank or opposing party that has simply lost its patience with you and your case. If you know what your goal is, it is time to move towards it – whether through counsel or independently. If you cannot reach your attorney, or if your attorney does not respond to you, you have to have an ability to direct your new attorney as to what your end game is – in some cases it may be litigating for a day in court and in some other situations it may simply be a soft landing. Only you know what your goal is, and it is your attorneys job to counsel you on what is achievable and what is not.

I certainly hope that no one is ever in this position, but if you unfortunately are you still do have options. Contact another attorney within your local community or the Florida Bar Attorney Referral Service as soon as possible.

Posted in Attorney Can't Be Reached, Foreclosure Defense, Loss Mitigation

Ocwen Loan Admits Wrongdoing to New York Regulators – Huge Foreclosure Impact

Ocwen Loan Servicing Foreclosure Issues – Consent Judgment in New York!

During my time defending foreclosures throughout the state, a rare oddity in terms of loan modifications has always been the loan servicer known as OCWEN! From extremely rare principal reductions in loan modifications to incredibly fast returns on a loss mitigation package, Ocwen Loan Servicing had always been a pleasure to work with…until know.

Recent revelations about this servicer have really changed my view on this servicer, to the point that where I am faced with them as a loan servicer on a client’s file – I have a specially tailored (and short) set of discovery aimed at the servicer.

What am I asking for? Why am I asking for it?

Click Here to find out!

Posted in Foreclosure Defense, Know Your Servicer, Ocwen Loan Servicing

Served By Mortgage Guaranty Insurance Company in a Lawsuit

If you were just served in a deficiency lawsuit by Mortgage Guaranty Insurance Company, it is important for you to act quickly and understand who they are, and why they filed a lawsuit against you

Mortgage Guaranty Insurance Company (MGIC) is a mortgage insurance underwriter that underwrites a wide range of home loans throughout the United States. Generally, Mortgage Guaranty Insurance Company, is paid a portion of your mortgage payment on a monthly basis to pay the premium of this insurance. This insurance provided is not for your protection, it is for the BANK!

What is Mortgage Insurance?

Mortgage Insurance (“MI”) basically works as a way for the bank to get paid if you miss a payment or default on your loan. The MI Company, in this case Mortgage Guaranty Insurance Company, will write the bank a check for a given amount as directed by the agreement, oftentimes paying the bank in full on the Mortgage they wrote to a borrower. If Mortgage Guaranty Insurance Company paid out a claim, the bank could assign its right to seek a deficiency in a foreclosure action or Mortgage Guaranty Insurance Company became automatically able to attempt to collect on the deficiency.

Mortgage Guaranty Insurance Company will file a deficiency lawsuit against you to try to collect this amount.

This is why you have been served, the Mortgage Guaranty Insurance Company lawsuit is an attempt to make you, as the borrower, personally liable for any amount they could not recoup from the initial mortgage amount. This can have significant consequences on you and will often be brought up years after the initial foreclosure lawsuit was brought against you. Mortgage Guaranty Insurance Company’s lawsuit for a deficiency revolves around what they paid out and the value of the property as of the date of the foreclosure sale. Understanding what this means, and how to properly defend or settle it is extremely important.

If Mortgage Guaranty Insurance Company is Pursuing you for a deficiency, you have options!

Being served in a deficiency lawsuit can add a lot of stress to your life. Throughout the past few years, I have represented individuals throughout the state of Florida in deficiency lawsuits. There are a number of options available to you, and meeting with an experienced deficiency defense attorney can be a tremendous help. If you have just been served in a lawsuit I am offering, for a limited time, a free consultation to meet with me, either in person or on the phone, to discuss your case. You can call my office at 813.502.6768 or e-mail me to set up your FREE CONSULTATION if you have just been served. If you have a pending suit, or were served more than 20 days ago, a small fee may apply.

Posted in Deficiency Judgment, Mortgage Guaranty Insurance Company, United Guaranty Insurance Company

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.

In this Dyck O’Neal Lawsuit, the defense that I used that was successful in obtaining dismissal has been around in Florida for over a century, and requires only minimal efforts for a Plaintiff to overcome. A dismissal on cases using this defense is extremely rare and is partly due to both attorney inaction and a court system that is overloaded by the filing of deficiency lawsuits and wants to quickly resolve cases. But alleging the defense wasn’t the hard part. Having it be successful, in part was, as Judges throughout the state have differing opinions on the proper remedy for this defense. However, the most difficult part was knowing what to file after obtaining the court order dismissing Dyck O’neal’s lawsuit without prejudice (meaning they could technically refile) was the more difficult aspect of keeping Dyck O’neal’s lawsuit dismissed.

How is a final order not final?

Thanks to a principal at law (really, it’s what gives innocent individuals a right to be found innocent in a court of law in criminal court and what gives home owners the right to challenge foreclosure lawsuits in Florida) called Due Process, this is not as counterintuitive as you may think. Generally, any individual in a lawsuit gets two things: (1) Notice and (2) a Hearing. This is equally true post-judgment where Dyck O’neal had an opportunity to ask for a rehearing. They did, but made a very big mistake. They didn’t file their request correctly and waiting until after their time to do so had expired. Put bluntly, the court had no authority on a legal level to grant their relief. Dyck O’neal withdrew their motion, and in doing so, furthered the issue that was created after their dismissal.

Again, an extremely rare result – but an awesome day and one of the reasons I became an attorney – the idea that consumers throughout the state are now being sued for deficiencies years after the bank foreclosed on their property is troubling to me. For all of those in similar situations, knowing your options is vital and can sometimes result in a dismissal of the action altogether.


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

Appealing a Foreclosure Judgment Entered for the Bank

Appealing a Foreclosure Judgment is a very difficult task, but you may have other options.

One of the most satisfying parts of my practice is taking a case close to a final hearing, that may end very badly for my client because they were unrepresented, looking at the case in the days or weeks that I have available to me and coming up with a solution that is in my client’s best interest and something the bank would not have offered on their own.While it is not quite stopping the foreclosure process, it is satisfying to say the least. Unfortunately, I can only help very few individuals given my schedule. So today, I wanted to take a few moments to discuss something I haven’t really addressed here – appealing a foreclosure judgment and other options available after a judgment has been entered against you.

If a judge entered an order on foreclosure against you recently (within the last five days), it is time to act – QUICKLY!

A lot of what will be discussed here is time sensitive. When it comes to appeals and motions for rehearing, trial courts and appellate courts can lose jurisdiction to help you if you do not act timely. One of my favorite legal quotes has always been “The law serves the vigilant, and not those who sleep over their rights.” – Scott v. Empire Land Co., 5 F.2d 873, 877 (US SD FL, 1925). This is especially true in post-judgment proceedings. When dealing with post judgment reconsideration and appeals, there are generally two methods that I find useful at the trial court level (the court that entered the foreclosure judgment against you) – a motion for rehearing or a motion to vacate (or set aside judgment). An appeal is basically a suit outside of the initial foreclosure suit and deals with a wholly different panel of judges. It is important to note, using any of these motions, to vacate order or for reahearing, at the trial court level is typically a long shot. You are essentially asking a sitting judge to undo either the complete foreclosure judgment or a portion of what he or she entered. Absent some clear evidence, this may be, in some counties, an impossible task.

Motion for Rehearing in Foreclosure Cases

A motion for rehearing is extremely time sensitive – generally you get fifteen (15) days after the date of the filing of the order to request this in a non-jury scenario (e.g., Fannie Mae/Freddie Mac foreclosure cases). Each judge, when faced with a motion to rehear a foreclosure judgment, gets to make their own call on this motion – they may even do this without an argument by the parties. Meeting with a foreclosure defense attorney, and retaining one if you so choose, should be your priority if you have left the hearing thinking the bank’s attorney won because you were not represented or that all of the facts and issues were not brought to the attention of the judge. Whether it is proper to request a rehearing is extremely fact specific, will vary on nearly every case, and will require prompt filings of the required motions in said case. If you schedule a consultation with a foreclosure attorney, bring them all the documents you have regarding your case. Explain what happened at the hearing and what has occurred in the suit. Every fact counts here and it may be what the judge relies on in making a ruling on a well pled motion.

Generally, I find that these motions are ruled on without a hearing, and in some counties are not even looked at by the judge that heard the case. It is important to state succinctly why you are requesting the rehearing, and to provide as persuasive of an argument as possible that your hearing requires a second chance.

Filing a Foreclosure Appeal in the Florida District Court of Appeals

Again, an extremely time sensitive requirement. A appeal, foreclosure or not, must generally be filed within thirty (30) days of the rendering of the trial courts order. It is also important to understand that an issue must properly be preserved for an appeal. Unfortunately, many cases that were not litigated by attorney’s familiar with the issues in foreclosure cases will be preserved, if at all, very poorly for an appeal. I cannot stress enough how important it is, if you are thinking of appealing a foreclosure judgment, to bring everything involved in your case – pleadings, motions, notes, etc. – to the attorneys attention as soon as possible. The Florida courts are extremely divided on some issues (e.g., Notice of Acceleration requirements), and interpretation of certain facts in your case can vary based on these nuances. Also, understanding the standard of review is important. If you are appealing a summary foreclosure judgment, the appellate court will review the trial court’s ruling de novo, or “a new”; plainly put, this allows the record, and the motions below to, in effect, be argued again to the district court of appeal. This is why meeting with a foreclosure defense attorney is important and should be done as soon as possible after judgment has been rendered.

Motion to Vacate (or Set Aside) Foreclosure Judgment

This is actually the most common relief from a foreclosure judgment I see filed. It is not because it is the most successful option, but because it does not require the strict time limits as a motion for rehearing or a notice of appeal and can be filed as a last ditch effort even when the previous time periods have expired. While it is not appealing a foreclosure judgment per se it still is an option for home owners that have had a foreclosure judgment rendered against them. Generally, if the motion is based on,, mistake, excusable neglect, newly discovered evidence, fraud, or some other grounds, it must be brought before the trial court within a year of the judgment date.

Act Now If you want to appeal the foreclosure judgment against you. There may still be other options.

Again, I cannot stress enough how important time is in these scenarios. If you would like to discuss your case Call my office at 813-502-6768, or e-mail me to schedule a consultation. If you do not want to appeal, but want to avoid possible collections, bankruptcy may be an option as well.

Posted in Appeals, Hillsborough County Foreclosure, Post Judgment Collection, Post-Judgment Options

FHA Mortgage Foreclosure Seeing Loss Mitigation Challenge

FHA mortgage foreclosure lawsuits could be affected by a Ohio based lawsuit

In a recent court filing, many individuals facing FHA mortgage foreclosure are fighting back. As you may be aware, an FHA Mortgage, and a resulting FHA Mortgage Foreclosure, is a very small subset of loans that were backed by the federal government, namely the Department of Housing and Urban Development (HUD). These loans require specialized rules regarding pre-foreclosure actions taken by the mortgagee (the bank or holder of the Note) before the bank can even file a lawsuit. In fact, many of the FHA Notes will state, flat out, that non-compliance with these specialized provisions will prevent acceleration of the debt and creates defenses to foreclosures.

What are the issues with FHA mortgage foreclosures?

FHA loans require that prior to the fourth month of missed payments that a borrower is reviewed for loss mitigation on a monthly basis. This can mean loan modification  (recasting of a mortgage) or forbearance, short sale (pre-foreclosure sales), deed in lieu, or another workout option that is available to the borrower by the bank. It is important to note that this review is supposed to be monthly, and determine what option may be appropriate for the borrower. This is because other FHA servicing requirements say that the borrower and mortgage company must have a face-to-face counseling. This is what, in theory, helps the FHA mortgagee understand what option would be best for the borrower in a given situation in an attempt to avoid the FHA foreclosure.

Can this defeat a foreclosure suit?

At times, this can lead to a granting of a summary judgment from the defense side or can defeat a motion for summary judgment from the bank. Knowing what is required from an FHA Mortgage – in the foreclosure action – can sometimes be extremely valuable to your case. It is important, if your mortgage is an FHA mortgage, that you bring this fact to your attorney’s attention. If you are just meeting with an attorney at a consultation, you should mention these facts as well.

If you are facing an FHA Foreclosure Action, my office is available to speak to you regarding your options. If you would like to speak with an attorney, please do not hesitate to contact me at 813.502.6768.

Posted in Mortgage Foreclosure - FHA

Creditor Threatening Arrest for Delinquent Bills – Is this legal?

Illegal Credit Collection Crackdown has creditors running!

A recent string of arrests has many consumers cheering on the government. The founder of a debt collection agency, as well as a number of its employees were arrested and are now facing federal charges for their illegal credit collection practices. Plainly put,these creditors were trying to collect a debt by calling individuals or in other ways contacting them and asserting that they, the consumer, are facing wire fraud, or other similar charges, and that if they did not pay an arrest warrant would be issued for them. These individuals allegedly were identifying themselves as “investigators” or “detectives” and were intimidating people into making payments on these accounts. The federal government has charged them with conspiracy to commit wire fraud, but the big news may come when these individuals face civil liability.

Many people think acts like these are illegal, they just don’t know where or when.

When people are faced with an arrest warrant, they often trust whomever is on the other side saying there is one. This is typical, and a practice that preys on an individuals fear of being arrested. Fortunately, both the Federal government and Florida legislature have made illegal in a collection context. Florida has made this type of collection activity illegal in the Florida Consumer Collection Practices Act – See Fla. Stat. 559.72. This act makes a number of things illegal, and can open the debt collector or collection agency up to civil liability, including the following:

(10) Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law, when it is not.
(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.
Oftentimes these credit collectors are doing exactly that – stating that they are sending a legal document that looks like a state issued it, or saying they are an attorney or with a law firm when they are, in reality, not. These violations allow for civil liability if the act has been violated.
The federal government has done this as well, codifying its law into the Fair Debt Collection Practices Act – See 15 USC 1692, et seq. The Fair Debt Collection Practices Act can hold a debt collector or credit collection agency civilly liable for a number of things, including:
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

If creditors are using illegal collection practices, you have options.

If a creditor is trying to collect debts from you by saying you will be arrested, or that they are an attorney but don’t appear in any bar registry, or worse, a meeting with an attorney may give you the information that you need to determine if the credit collector’s claims are genuine or if you are the victim of an illegal practice.

Posted in fair debt collection practices act, florida consumer collection practices act

The use of this website, including the submission of any forms is done so in express acceptance of its Terms of Use. If you do not agree with these terms, you are asked to click here. 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 and is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. The hiring of a lawyer is an important decision that should not be solely based on advertisement. Before you decide, ask us about our qualifications and experience.

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

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.

Protected by Copyscape Web Copyright Checker