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

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

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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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