February 19, 2013

Jacksonville, Florida among the top ten cities in the Nation in Foreclosure Filings in January 2013

Florida remains the foreclosure capital of the United States, and outside of South Florida, the Jacksonville Florida metro area is leading the pack. The Florida foreclosure rate has remained the highest in the United States for five months in a row. Florida cities account for six of top 10 metro foreclosure rates in the country.hurricane-flooding1.jpg

As of February 2013, 1 in every 300 Florida housing units had a foreclosure filing-- more than twice the national average. A total of 29,800 Florida properties had a foreclosure filing during the month, up 12 percent from the previous month and up 20 percent from January 2012. Northeast Florida was near the front of the pack with nearly 2000 foreclosure filings in January 2013, with one in every 301 housing units, ranking our region No. 8 for foreclosure rates among the nation's 200 largest metro areas.

This regional increase in foreclosure activity is in sharp contrast to a nationwide trend. U.S. foreclosures fell to a six year low in January 2013. The surge in Florida comes as much of the nation is seeing foreclosure activity wane. RealtyTrac said nationwide foreclosure activity was down 7 percent in January from December 2012 and plunged 28 percent from a year earlier.

So what is behind the dramatic rise in North Florida foreclosure activity? I see several trends working together to continue to give strength to Jacksonville, Florida's continuing perfect storm of Foreclosure activity:

• Duval County remains mired in the 2007-09 recession, with only recent improvement. According to the Federal Reserve Bank of Saint Louis and the United States Department of Labor, in July 2012, the unemployment rate in Duval County was at 9.8 percent. The rate managed to drop to 7.8 percent by December 2012, most likely due to temporary holiday hires. If recent historical data is a reliable indicator, the rate will spike again following the Christmas holidays. Even if the improvement is permanent, the low wage jobs in Duval County have not replaced higher wage construction employment that has been traditional Duval county Jacksonville. Because wages remain depressed, homeowners cannot afford to pay their home payments.

• Duval county properties remain "underwater" giving homeowners in Northeast Florida no "skin in the game."

• Many homeowners see strategic default as a way to save money by reducing their housing costs to make up for the loss of income of the last half decade.

• Large foreclosure mills, most of whom hire very inexperienced young attorneys at very low wages, remain inefficient in filings, making numerous errors at each step of the litigation process.

• Adding to Northeast Florida's brisk activity is the state handles cases through time-consuming court hearings, rather than quick moving administrative proceedings which the majority of other states use to foreclose. The Court system remains understaffed and underfunded to address the foreclosure crisis.

Times are still tough in Jacksonville. Most Northeast Florida middle class homeowners have never recovered from the 2007-09 recession. Getting back on your feet is the ultimate goal when recovering from a financial crisis, be it a national one or a personal one.

One thing is certain and that is there are experienced Jacksonville Foreclosure Defense Attorneys who may be able to help you get back on your financial feet. Whether you are deep in foreclosure or are just recently unable to make your mortgage payments, there has never been a better time to get a experienced lawyer involved in your case.

I have worked on both sides of this crisis, for the banks, and now for the little guys. Contact us to schedule a free consultation with a Jacksonville Foreclosure Defense Attorney.

February 4, 2013

Your Home is in Foreclosure, Can you afford to save your home?

A: Every homeowner facing foreclosure has to ask themselves this question and give themselves an honest answer. An essential first step for homeowners facing foreclosure is to sit down and take stock of their long term financial situation. Make a monthly budget. This will allow you see what you spend each month and see areas where you can save money.high-phone-bills-300x300.jpg

Next look at your monthly mortgage payment. How much of your monthly income does it take up? The HAMP program uses 31 percent of monthly income as an acceptable level for a monthly payment.

If your mortgage is less than 31% of your monthly income and you cannot afford your monthly mortgage, you should examine your monthly budget for areas to cut.

If your mortgage payment is significantly higher than 31% it may be hard for you to afford to keep your home without seeking the help of an experienced foreclosure attorney.
If you would like help with a loan modification, please give the Apple Law firm a call at 904-685-1200.

February 1, 2013

Okay You Need a Foreclosure Attorney, Now What Are Your Goals?

Once you have decided that you need to hire an experience foreclosure attorney to protect your home from foreclosure, you must decide "What is my goal?" This is paramount because the answer to this question determines what you may get out of putting up a fight against the bank. You may determine that you are defending the foreclosure action because you felt you were taken advantage of by the lender or you feel that the lender is not following the proper procedure in foreclosing on the property.loan-fight-foreclosure.jpg

You might have placed your entire life savings into buying the property and don't want to see your entire savings disappear. You may want to find a way to prolong the foreclosure process in order to get a fresh breath of financial air while you seek alternative housing or save some funds to put towards a loan modification. Each of these scenarios will dictate different courses of action.

Someone looking to modify their loan with a lender might not want to put up a vigorous defense because such a fight would be counterproductive. Fighting a protracted battle would add additional attorney's fees, interest and costs to the loan.

You may just wish to protract your foreclosure just long enough to avoid a sale and save your home.

Some folks may just want to delay the inevitable, at all costs. They may not be worried about the costs they incur, but wish to use this time to seek alternative housing.

Many defenses to forclosure take time to employ. For example, if you feel like your home loan violates TILA (The Truth in Lending Act), it will take substantial attorney time researching the various chapters of TILA carefully along with your loan documents. But the advantage to this investment in time and funds is if an attorney can find the TILA violation, the entire loan can be unraveled and the homeowner can recoup every penny he or she invested in the loan. While these discoveries are rare, they occasionally do materialize.

In the end each defendant in a foreclosure matter must understand that the Courts frown upon the filing of frivolous defenses in foreclosure cases and any other cases for that matter. In the end employing defenses due to bona fide wrongs is not only allowed, it is protected by the United States Constitution as a fundamental right.

If you need help charting a course of action in a foreclosure matter, contact us online or call the Apple law firm at 904-685-1200.

January 31, 2013

Federal Trade Commission Study Finds that Bill Collectors Harass Customers for One Million Disputed Debts in Violation of Federal Law

The Federal Trade Commission's number one complaint received by citizens regards unethical or illegal debt collection practices. Consumers complain that debt collection agencies hound consumers for debts they have disputed - a violation of Fair Debt Collection Practices Act.

In a study released on January 30th, the FTC released data on debt buyers, firms that purchase debt paper from other companies. The FTC looked at more than 5000 firms that were collecting on nearly 90 million consumer accounts with a face value at more than $143 billion dollars. The agency found that these debt buyers seek to collect debt on one million accounts that consumers assert they don't owe. The FTC wrote that "proper handling of this large number of disputed debts is a significant consumer protection concern."Unknown.jpg

The FTC compelled nine of the largest debt buyers to provide information on their debt collection practices. Most of the debts stemmed from credit cards, but the study also included debts from mortgages, medical debt, utility debt, cell phone charges and other creditors. The buyers paid an average of 4 cents on the dollar of the debt's face value.
The FTC found that many problems were the result of incomplete information from the original creditors and poor communication.

Frequently these buyers got no information from the sellers, i.e. whether the consumer disputed the debt or whether the debt had verified. Nor did the sellers get information which would determine how much of the "debts" were principle, how much were fees and how much were interest on the debt.

The FTC also found that the sellers typically refused to guarantee whether the information regarding the information was valid, selling them as "as is and with all faults."
If a consumer protests that he or she does not owe the money or that the amount is wrong, the FTC requires that debt collectors back off.

What this means for consumers in foreclosure, is that once your case is over and the banks have foreclosed, the banks will likely sell the deficiency judgment to a third party debt collector for pennies on the dollar. Then the consumer will have to grapple with unethical debt collectors again.shutterstock_66089434.jpg

If you hire an experienced foreclosure attorney, defenses can be raised that can protect you. You have certain legal rights that can also protect you, your credit score and your home. Some of our attorneys have worked on for banks foreclosing on consumers and know the mistakes banks frequently make. If you would like to speak to such an attorney, give Apple a call at 904-685-1200.

January 30, 2013

New Bill in the Florida Legislature Could Speed Up Foreclosures

A bill that stalled last year in the Florida Senate is being refiled this year in the Florida House. This bill, if it becomes law, has the potential to speed up the Foreclosure process and streamline when defenses may be filed by borrowers.Florida Capitol.jpg HB 87 addresses a multitude of issues that have slowed the handling of foreclosures, from faulty paperwork from lenders, defenses by borrowers, and delays by parties in pursuing cases. It also attempts to provide certainty for buyers of foreclosed properties and help for homeowner or condominium associations that are owed back maintenance payments on foreclosed properties.

The bill does the following:

· Limits the time frame that a lender may seek a judicial remedy for a deficiency judgment. Typically the amount that a borrower still owes the lender after a foreclosure.
· Authorizes sanctions against lenders who fail to follow procedural requirements.
· It imposes the penalty of perjury if false documents are filed to show ownership of a lost or misplaced mortgage.
· The bill also gives homeowner and condominium associations the ability to seek a quick resolution of a foreclosure action.
· Potentially ends filing last minute defenses to foreclosure actions by limiting the defenses that borrowers may use.
· Limits the legal defenses a borrower can use. The bill calls these defenses "trumped up."
· Waives the borrower's right to a hearing if that borrower misses certain hearings.

While this bill makes it more difficult for a lender to foreclose if they do not have the note in hand, it also speeds up the process. In order for you to maintain your rights, it has never been more important to contact an experienced foreclosure attorney than it is right now. If you are facing foreclosure, give us a call and ask what effect HB 87 might have on your home.

January 23, 2013

Congress passes bill which allows homeowners and home sellers to take tax deductions which expired more than a year ago

These days it's rare for something to come out of Congress which is a grand slam for lower income homeowners, but earlier this month Congress hit a sort of grand slam for homeowners who make less than $110,000 a year by passing the "American Taxpayer Relief Act" -- the fiscal cliff compromise bill. The bill, which has since been signed into law by President Obama, revived two key tax benefits for housing that had expired more than a year ago. Here are the details:r.jpg

Write offs for Mortgage insurance premiums and Guarantee fees

If you pay mortgage premium insurance or guarantee fees on FHA, VA, Fannie Mae, Freddie Mac or Rural Housing loans, the "American Taxpayer Relief Act" allows you to resume writing off these insurance premiums along with your mortgage interest, provided your income is less than $110,000. Legal authorization for this deduction ended in 2011, but the new law retroactively allows write offs for all of 2012 and 2013 for qualified borrowers.

Energy-Efficiency Renovations

If you installed energy efficient renovations to your home during 2012, including insulation, energy-saving windows, doors, roofing material, non-solar water heaters, you may be able to claim up to a $500 tax credit. This credit also expired in 2011 but has been revived retroactively.

Short Sale of your Underwater Home/Principle Reduction on Your Home Loan

If you are planning a short sale for your underwater home, or received a principal reduction as the result of a mortgage modification from your lender, the new law reauthorized the Mortgage Forgiveness Debt Relief Act, which had been scheduled to sunset Dec. 31, sparing you potentially punitive federal taxes on the amount forgiven. Had the debt relief exception not been revived, large numbers of underwater owners participating in short sales -- where banks agree to accept less than the full amounts owed on a loan as part of a sale to a new buyer or investor -- would have faced taxation on the full amount forgiven, as if it were regular income.

All in all not so bad for homeowners. If your family is facing foreclosure, please give us a call at 904-685-1200.

December 17, 2012

½ OFF 1st Month of Foreclosure Defense

No one should have to worry about loosing his or her home over Christmas. To help families protect their home, we are offering a special on Foreclosure Defense for the next 30 days. From now until January 17th, we are offering a 50% discount on the first month of Foreclosure Defense to new clients.

Once you have been served with a Foreclosure, you must act timely (within 20 days) to preserve your rights. The assistance of an attorney could greatly benefit you. If you fail to file a response within 20 days, and/or fail to raise a defense, the Court may forever bar your right to defend the foreclosure or assert the defense. Many homeowners do not realize they have a right to defend the foreclosure and remain in the home while the lawsuit is pending. If you are leasing the home, you may have the right to continue to lease the home and collecting rent throughout the duration of the lawsuit.

By defending a foreclosure action, you, along with your attorney, maybe able to negotiate a loan modification with lower monthly payments to help you retain the home. If your goal is to abandon the property, an attorney could assist you with negotiating a Deed-In-Lieu of Foreclosure, Cash For Keys, Short Sale, or with the filing of a Bankruptcy. If you have chosen to abandon the property, it is important to protect yourself from a deficiency judgment. A deficiency judgment is the difference between the amount you owe and what the property sales for at the foreclosure sale. This is why it is so important to negotiate a settlement in which the bank agrees to waive its rights to seek a deficiency judgment instead of simply allowing the bank to foreclose.

Choosing a law firm in this matter is an important decision. Apple Law Firm PLLC consists of four attorneys, of which practice in numerous areas; including, Foreclosure Defense, Bankruptcy, and Family Law. We also experienced with Estate Planning, Asset Protection, Trusts and Estates. Apple Law Firm PLLC has represented clients in Foreclosure actions and Bankruptcy since 2009. We invite you to compare Apple Law Firm's experience and qualification to those of other firms you may be considering.
Foreclosure is an important matter that can carry serious consequences long into your future. Contact us online or call the Apple Law Firm PLLC to represent you and help you make a decision that is best for you and your family's future. To receive 1/2 off the first month of Foreclosure Defense, you must mention this blog. We offer free consultations for Foreclosure Defense and Bankruptcy.

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August 30, 2012

Beware of Scams when Fighting Foreclosure

foreclosure-scam.jpgMany Florida homeowners find that being involved with a Foreclosure case can be a difficult and trying process. Overtime the bills will begin to pile up and collection agents start calling at all hours of the day.

Most people do not deal with foreclosure cases on a regular basis and are at a loss as to what the proper response is. The options are confusing and difficult concepts to understand. Other stories seem to have similarities with your situation but each person's
goals and circumstances are unique.

The internet is an amazing resource. In just a few clicks, any search engine will deliver thousands of hits for people and companies offering to help with your foreclosure defense. There's a reason for this: in the last few years, the number of foreclosures across the nation has been at record highs. Foreclosure defense is in high demand. But, the high demand, combined with the confusing and emotional nature of the foreclosure process, means a high risk of scams. Many of the people who were selling bad loan options are not providing foreclosure rescue scams.

This is not meant to scare you. Some of those offering to help with your foreclosure are sincere and very willing to help. Unfortunately, there are also those who take advantage of the desperation of those facing foreclosure. Before hiring anyone to help you with your foreclosure, at least check the Better Business Bureau or a website like ripoffreport.com to see if anyone has filed a complaint. Meet with a company representative face to face. Trust your instincts. If you don't feel comfortable with the person, remember there are plenty of others who are willing to help you.

Those in Jacksonville or around Florida have some protections as the state of Florida has outlawed many of the scams. Unfortunately, there are many who do not know that their service is a crime in Florida or are based in other states where the activity is legal.

It is best to come up with a game plan before your anxiety becomes to high which can make the job of someone trying to help you more difficult. Contact an attorney early on, when you first realize you won't be able to make payments. Be weary of anyone who promises you anything, as there are no guarantees regarding foreclosure. Be weary of people visiting your home and directing you to someone who will pay for their services. In Florida, an attorney cannot have someone working for them directly or indirectly who engages in activities that the lawyer themselves would be prohibited from doing. Be weary of those who promise a principal reduction as they are few and far between.

Foreclosure defense is not a one size fits all issue. Someone should look at your circumstances and goals and then determine if you can achieve your goals with your current or expected situation with the various solutions for foreclosure that are available.

Generally, the more common solutions include deed in lieu, a short sale (be careful of a deficiency), loan modification, or bankruptcy.

If you are in the Jacksonville, Florida area, contact a Jacksonville foreclosure attorney who can help with your case.

August 20, 2012

Foreclosure Fraud

Jacksonville Foreclosure Defense TeamFor the majority of Jacksonville homeowners a walk around the block means a walk around foreclosure lane. It is heartbreaking to see just how many of our neighbors have lost their home due to an unnecessary Foreclosure. Florida's attorney general stated, "On numerous occasions, false affidavits and fabricated documents have allegedly been presented to courts in foreclosure actions to obtain final judgments against homeowners." As a result of the fraud occurring in courts throughout Florida including Jacksonville foreclosure cases, many foreclosure defense attorneys in Jacksonville have been exposing the fraud committed by foreclosure mills.

Fraud is one of the worst words to use in a courtroom. Fraud is hard, if not impossible, to prove. You can't just point your finger at the other party (i.e. the bank or mortgage company) and accuse them of committing fraud. If you accuse another in court of committing fraud, you better mean it and be ready to prove it.

Fraud is often an ignored defense to a foreclosure lawsuit due to how difficult it is to prove. In order to properly plead fraud, you (the homeowner) or your foreclosure lawyer are required to plead the facts which establish the fraud. Most often the homeowner does not have the evidence essential to proving fraud, ultimately making it impossible to prove. The homeowner must also prove the fraud was committed knowingly and/or intentionally. Furthermore, when the homeowner asserts fraud there is often the counterargument the Plaintiff who is trying to foreclose did not initiate the loan and is thus generally not the party who committed the fraud. The main point, it is a tough argument that does not always prevail.

In order to foreclose on real property in Jacksonville Florida, the owner of the mortgage (i.e. bank or mortgage company), must file a formal lawsuit with the court. The owner or servicer of the mortgage generally submits sworn affidavits to support their ownership along with the original Note and Mortgage. When the homeowner fails to defend the foreclosure or retain an attorney, the bank is frequently granted a default which leads to a judgment as a matter of law.

The affidavits and documents submitted to the court by the bank or mortgage company is generally where the fraud in a foreclosure case is found. The owner of the mortgage often presents the court with these documents, which are very important to their case, with either robo-signatures (stamped signatures that allow the filing of a high volume of foreclosures, with little or no oversight), or were back-dated (to prove that the plaintiff actually owns the property). This happens more often than you may think.

Fraud in foreclosure has been found very close to home in Jacksonville. The Duval County Circuit Court, using the clear and convincing evidence standard, found that a South Florida law firm, Shapiro, Fishman, Gache LLP, committed a Fraud upon the Court. To read the Court Order click here: Fraud Order.pdf If you are afraid of losing your home to a foreclosure action, which may or may not involve fraud, contact a href="http://www.jacksonvillelawyer.pro/lawyer-attorney-1504971.html" target="_blank">Jacksonville Foreclosure Attorney . The phone call may be the difference between keeping your home and losing your home.

July 27, 2012

Will a Second Mortgage and HOA Fees be Discharged after Foreclosure?

Jacksonville Foreclosure Defense TeamIn law school, students learn how the foreclosure process is supposed to work. The key work is "supposed to work" because foreclosure today does not have the intended results of its creators. The original intent of the foreclosure process was to allow mortgage and lien holders to recover the full amount owed if a borrower was no longer able to make the agreed payments. If a borrower defaulted on his or her mortgage, the primary or first mortgage holder would bring a foreclosure action in the Florida court system. Once a foreclosure judgment was entered, the property would be sold at fair market value from the courthouse steps. The first mortgage would be paid off in full, the second mortgage would be paid off second followed by any other liens the property may be burdened with. Any unpaid mortgage or lien would be extinguished from the property, allowing the new owner to take the property free and clear from any obligation.

When this process was established, it was established on the U.S. precedent that borrowers worked hard to pay off their mortgages and to establish equity in their homes. This process was also dependent on a stable and rising housing market. When the borrower defaulted, there would be equity in the home. Therefore, the property would be worth more than what was owed on the primary mortgage; allowing the first mortgage to be paid off in full, either part or all of the second mortgage to be paid off as well as any other liens. However, this is no longer the case in today's housing market.

Today, just about every home is upside down; more is owed on the home than the property is worth. When a home is foreclosed upon today, not even the primary mortgage is satisfied in full. Therefore, 2nd mortgages and other liens generally do not receive any funds from a foreclosure sale.

However, the law has remained unchanged: all junior mortgages and liens are still extinguished when a primary mortgage forecloses on real property. This means that when a primary mortgage forecloses, the new owner still takes the property free and clear of all. The exception is Homeowners Association (HOA) dues in Florida.

If the bank is the highest bidder at the foreclosure sale and takes title to the property, the bank is only responsible for a portion of the past due HOA dues. If any other person or entity obtains the property at the foreclosure sale, the buyer is responsible for all past due HOA dues. This is why it is so important to have a title search completed before purchasing any real property.

Long story short, all junior mortgages and liens are extinguished at a foreclosure sale. HOA dues are NOT. However, the HOA maybe be willing to negotiate a smaller settlement. If you have any questions, please consult a Jacksonville Foreclosure Attorney who may be able to answer your questions or help you negotiated a settlement with the HOA.

July 18, 2012

What is a HELOC Loan?

Jacksonville Foreclosure Defense TeamA Home Equity Line of Credit, often referred to as a "HELOC," is a loan in which the lender agrees to lend you a certain amount within an agreed period. The collateral is the borrower's equity in his home. A HELOC can be compared to both a second mortgage and a credit card. Homeowners that wish to borrow large amounts of money and/or do not have a respectable credit score often find HELOC loans to be attractive. However, HELOC abuse was one of the major causes of the current mortgage crises due to the way many were setup and the repayments schedules they required.

A HELOC differs from the average home equity loan in a few significant ways. A home equity loan generally advances a one-time lump-sum amount up front, often with a fixed interest rate. With a HELOC, the borrower is not advanced the entire sum up front. Instead, the borrower uses a line of credit to borrow sums that total no more than the credit limit, similar to how you use a credit card. A HELOC is commonly referred to as a line of revolving credit with an adjustable interest rate, where the borrower can choose when and how often to borrow against the equity in the property, with the lender setting an initial limit on the credit line. HELOC funds can be borrowed during the draw period, which is typically 5 to 25 years, and it is sometimes possible to borrow up to what the home is worth, minus any liens.

A HELOC may have a minimum monthly payment requirement that frequently only equals the interest accrued that month. The debtor may make a payment of any amount so long as it is greater than the minimum payment but less than the total outstanding debt. The significant disadvantage for homeowners is that the full principle amount is often due at the end of the draw period, either as a lump-sum balloon payment or according to a loan amortization schedule. Many cannot pay back this lump sum, ultimately resulting in Foreclosure. Another default with using a HELOC that can largely affect your future is it can appear as a credit card on your credit report. It is often times reported as a maxed out high-limit credit card, which significantly lowers your credit score.

Many Homeowners in Florida are already burdened with HELOC loans. If you are having trouble with your HELOC loan in Duval, St. Johns, or Clay County, contact a Jacksonville Foreclosure Attorney today who may be able to assist you. The best advice? Make sure you know what you are getting yourself into before you sign any papers. Banks can make these loans sound very attractive, while leaving out the sour details.

July 12, 2012

What is "The Protecting Tenants at Foreclosure Act, of 2009"?

Thumbnail image for Thumbnail image for for-rent-until-foreclosed.jpgThe Protecting Tenants at Foreclosure Act, of 2009 ("Act") is a Federal Law that does just what it suggests; protects tenants whose homes are facing foreclosure. The purpose behind the Act is to ensure tenants facing eviction from a foreclosed property have adequate time to find alternative housing. The law does not affect any local or state law that provides longer time periods or additional protections for tenants. The Act became effective on May 20, 2009 and is set to expire at the end of this year, December 31, 2012, if it is not extended.

The Act protects tenants from immediate eviction by new owners of residential property through the foreclosure process (providing additional protections for tenants with U.S. Dept. of Housing and Urban Development Section 8 vouchers). As long as tenants know they are protected, there is a minimum of a 90-day notice requirement.

The Major provisions of The Protecting Tenants at Foreclosure Act are as follows:

- As a general rule, the tenant has the right to remain in the unit and cannot be evicted during the term of the lease unless good cause to evict exists; such as the failure to pay rent.
- If the lease is set to end within 90 days, the new owner of the property cannot evict the tenant without giving them a minimum of 90 days notice.
- At the end of the lease, the new owner can terminate the tenancy as long as the new owner provides a 90-day notice to the tenant.
- Exception to the rule that the tenant cannot be evicted during the term of the lease absent good cause: the new owner can terminate the tenancy if the owner is going to live at the residence, and has provided the tenant a 90-day notice to vacate the premises.

In order to make sure your rights are upheld under the act, it is your responsibility to let the appropriate parties know that you are a tenant covered under this Act. This may require you to file with the clerk of court a document (accompanied by a hard copy of your lease agreement if you have one) stating you are a tenant protected under the Act. You may also want to consider providing notice to the new owner, the former owner, the mortgage company, any attorneys representing any of the owners (new or former), the mortgage company's attorney, the Sheriff, and the Homeowners Association. Consider consulting with a Jacksonville Foreclosure Attorney who may be able to help ensure your rights are protected as a tenant.

June 14, 2012

Deed-In-Lieu of Foreclosure: What items can I take from the home?

Orange Park Foreclosure Defense TeamAs a Foreclosure Defense Attorney who practices in Orange Park and Jacksonville, I have helped many clients negotiate a Deed-in-Lieu of Foreclosure with a waiver of deficiency. The one question that every client has asked after a Deed-in-Lieu has been approved is WHAT CAN I TAKE WITH ME? Of course, they are not referring to their personal belongings because they know without a doubt they can take those. The items they refer to are curtains, appliances, and other additions/improvements they have made to the home.

When asking yourself if I can take something, answer this question: Is it a fixture? According to the Supreme Court of Florida in Commercial Finance Co. v. Brooksville Hotel Co., "[a] fixture is an article which was achattel, but which by being physically annexed or affixed to the realty by some one having an interest in the soil becomes part and parcel of it." 98 Fla. 410 (1929). In order to decide whether something has become a fixture, you must consider three facts: "annexation of the property to the realty, adaptation of the property to the use of the realty and the intent of the party making the annexation." Rompon Properties, Inc. v. Langelier, 341 So. 2d 1068 (Fla. 2nd DCA, 1977). According to Florida Statute 680.309, "[g]oods are 'fixtures' when they become so related to particular real estate that an interest in them arises under real estate law."

In other words, it is so affirmatively affixed to the home that it would cause harm to the home if it were to be removed. For instance, a washer, dryer, and refrigerator are all generally only plugged into an outlet. By unplugging these appliances, they can be easily removed without causing any harm to the home in any way.

If no harm will be caused, you can likely take them with you. On the other hand, some microwaves and dishwashers are generally hardwired into the home and should not be removed. For such things as curtains and other improvements, it largely depends on how they are attached. If they can be removed with minimal damage, aka small nail holes are left behind that can be easily filled, they probably can be taken but care should be taken to repair the holes.

If you are wondering if a Deed-in-Lieu of Foreclosure is the right settlement option to your foreclosure, contact a Orange Park Foreclosure Defense Attorney. An attorney can help you decide with a Deed-in-Lieu of other loss mitigation option is right for you. The main goal of the attorney should be to set you up for a successful financial future.

June 12, 2012

Should I worry if my HOA files a Foreclosure Action against me in Jacksonville?

Many times if a homeowner defaults on his mortgage and finds himself facing foreclosure in Jacksonville, FL it is also likely that HOA dues are also unable to paid. HOA's can be powerful entities with many rights. Paying your HOA dues is an obligation that runs with the land. If you receive a letter from HOA about any missed payment, charges or fees, it should not be ignored or taken lightly. Even if you make all your mortgage payments, you could still loose your home in foreclosure because of unpaid HOA dues. In many instances, it is very difficult for a homeowner to actually get in contact with their HOA in order to resolve an issue. That is why it is important to speak with an attorney who is experienced with HOA foreclosures if you find yourself in this situation. This is why!

Generally, if the Bank files a foreclosure action because of a default on the mortgage, it is likely (if they are AWARE of HOA dues not being paid and/or a foreclosure lawsuit by the HOA) the Bank will bring the HOA dues current in order to protect their interest. But this is not always the case. Not all Jacksonville Foreclosure Defense Attorneys are experienced in both Foreclosure Defense and HOA Foreclosures.

June 7, 2012

The National Housing Act, 12 U.S.C. § 1701x(c)(5) and Foreclosure Defense

A recent court opinion from the Court of Appeal of Florida, Fourth District, recognized the National Housing Act's prevention loan servicing Requirements as a valid defense to a mortgage foreclosure. The court of Appeal of Florida, Fourth District, is headquartered in West Palm Beach and includes Palm Beach County, Broward County, St. Lucie County, Martin County, Indian River County, and Okeechobee County.

In Costa v. Deutsche Bank National Trust Company, the Court of Appeal of Florida, Fourth District, stated the "Bank's failure to comply with all conditions precedent to acceleration of the note and mortgage; Bank's failure to send, and appellant's failure to receive, the notices that are a condition precedent to acceleration; and that appellant does not owe the amount sued for." 2012 Fla. App. LEXIS 7828. Read the entire opinion below.

The National Housing Act, 12 U.S.C. § 1701x(c)(4) makes homeownership available to those whose:

A) the home loan is secured by property that is the principal residence (as defined by the Secretary) of the homeowner;
(B) the home loan is not assisted under title V of the Housing Act of 1949 [42 U.S.C.A. § 1471 et seq.]; and
(C) the homeowner is, or is expected to be, unable to make payments, correct a home loan delinquency within a reasonable time, or resume full home loan payments due to a reduction in the income of the homeowner because of--
(i) an involuntary loss of, or reduction in, the employment of the homeowner, the self-employment of the homeowner, or income from the pursuit of the occupation of the homeowner;
(ii) any similar loss or reduction experienced by any person who contributes to the income of the homeowner;
(iii) a significant reduction in the income of the household due to divorce or death; or
(iv) a significant increase in basic expenses of the homeowner or an immediate family member of the homeowner (including the spouse, child, or parent for whom the homeowner provides substantial care or financial assistance) due to--
(I) an unexpected or significant increase in medical expenses;
(II) a divorce;
(III) unexpected and significant damage to the property, the repair of which will not be covered by private or public insurance; or
(IV) a large property-tax increase; or
(D) the Secretary of Housing and Urban Development determines that the annual income of the homeowner is no greater than the annual income established by the Secretary as being of low- or moderate-income." 12 U.S.C. 1701x(c)(4).
The notice that must be given to the borrower by the lender upon payment default is governed by 12 U.S.C. 1701x(c)(5):

(A) Notification of Availability of homeownership Counseling
(i) Requirement Except as provided in subparagraph (C), the creditor of a loan (or proposed creditor) shall provide notice under clause (ii) to (I) any eligible homeowner who fails to pay any amount by the date the amount is due under a home loan, and (II) any applicant for a mortgage described in paragraph (4).
(ii) Content Notification under this subparagraph shall--
(I) notify the homeowner or mortgage applicant of the availability of any homeownership counseling offered by the creditor (or proposed creditor);
(II) if provided to an eligible mortgage applicant, state that completion of a counseling program is required for insurance pursuant to section 203 of the National Housing Act [12 U.S.C.A. § 1709];
(III) notify the homeowner or mortgage applicant of the availability of homeownership counseling provided by nonprofit organizations approved by the Secretary and experienced in the provision of homeownership counseling, or provide the toll-free telephone number described in subparagraph (D)(i); and
(IV) notify the homeowner by a statement or notice, written in plain English by the Secretary of Housing and Urban Development, in consultation with the Secretary of Defense and the Secretary of the Treasury, explaining the mortgage and foreclosure rights of servicemembers, and the dependents of such servicemembers, under the Servicemembers Civil Relief Act (50 U.S.C. App. 501 et seq.), including the toll-free military one source number to call if servicemembers, or the dependents of such servicemembers, require further assistance.
(B) Deadline for notification
The notification required in subparagraph (A) shall be made--
(i) in a manner approved by the Secretary; and
(ii) before the expiration of the 45-day period beginning on the date on which the failure referred to in such subparagraph occurs."
12 U.S.C. 1701x(c)(5).

If you believe you may have been entitled to counseling under the National Housing Act but did not receive proper notice, contact a Jacksonville Foreclosure Defense Attorney who may be able to help you determine if this is a valid defense to your St. Johns foreclosure as well as whether any other defenses may be applicable to your foreclosure.