Florida Foreclosure Defense Lawyers Blog

If you are currently facing a foreclosure, you may notice that a different company than you obtained your mortgage from is bringing the foreclosure action against you. This is not unheard of, and, in fact, is common. If you do not recognize the company that has filed your foreclosure, it may be because the company from whom you obtained your mortgage sold its rights, merged with, or was acquired by another bank.

For example, if you originally secured a mortgage through Countrywide, you may now know that Countrywide is no longer inexistence and are wondering what affect this has on your Countrywide mortgage. Bank of America acquired Countrywide and now has all the rights of Countrywide to your mortgage. An interesting chart of the bank mergers that have occurred over the past few decades can be found herein the New York Times.

It is important to pay attention to the transfer of your mortgage because it may have been transferred incorrectly. We are still waiting to see the effects of robo-signing and other methods of potential fraud used in the foreclosures. Nevertheless, the burden lies with your current foreclosure company to prove they have the right to foreclose. If they cannot prove they have the right, you may have a good argument against foreclosure.

Of course, with the average length of foreclosures hovering over 800 days in Jacksonville, Florida, battling the banks and foreclosure firms is a tricky process. Don't face them alone. Contact a Jacksonville Foreclosure Defense Attorney to discuss your options and which make sense given your personal circumstances and goals.

Probably. U.S. courts follow the "American Rule" regarding attorney's fees; i.e. each side customarily pays their own attorney's fees. However, this can be altered, and is often done so through various legislative statutes or even by contract. Florida recently passed a law requiring homeowners who do not contest a foreclosure action to pay the mortgage company's attorney fees. In addition, your note and mortgage most likely contain language making you responsible for the legal fees associated with collection of past due amounts.

Florida Statute 702.065 allows banks to recover attorney's fees in certain foreclosure actions. It applies only when the note or mortgage contains a provision that entitles the bank to "reasonable attorney's fees" when the Borrower defaults on their payments and a default judgment is entered. If this is the case, the bank or mortgage company can receive up to 3 percent of the principal amount owed at the time the bank filed their foreclosure complaint without a hearing.

This might not sound like a big deal, but this new rule is actually quite different from the old law. Lawyers for banks used to be required to have a hearing with the court to ensure their fees were "reasonable." Now, however, a bank's attorney can receive $30,000 on a million-dollar home simply for obtaining a default judgment, without proving to the court that the attorney actually performed $30,000 worth of work.

Laws like these suggest the banks are trying to make their proceedings a little more efficient, which can only makes sense in light of the substantial backlog foreclosure cases have caused in Florida. Having a Jacksonville Foreclosure Attorney on your side, can help prevent the bank from obtaining such a default judgment against you. Don't face foreclosure alone. Contact a Jacksonville Foreclosure Defense Attorney.

It is no secret that foreclosure companies were using a wide array of fraudulent tactics at the height of the foreclosure crises. Practices like backdating documents and robo-signing were wide-spread, despite being illegal. Nevertheless, many foreclosures were approved even though the mortgage company had faulty documents. This was largely due to the fact that, often times, the mortgage company did not have any other document to show the court, so they resorted to shady tactics.

Those tactics are becoming more difficult to use. A recent decision held that a bank or mortgage company must show proof of ownership before the court will grant a foreclosure. This means the note must be correctly dated and endorsed before the foreclosure is filed, which does not always happen. In such cases, the court might dismiss the case and force the bank to re-file with the appropriate documents.

This is an important development. It is unclear how persuasive this case will be throughout the rest of Florida, but it could significantly delay the already backlogged foreclosures throughout the state. It could also allow homeowners a new defense against banks and other foreclosure companies that fail to adequately prove ownership of the home itself.

If you are facing foreclosure in Florida, you have numerous rights and do not need to simply vacate your home without a court order. Contact a Jacksonville Foreclosure Defense Attorney to discuss your options.

You might recall the name David J. Stern, and I do not mean the NBA Commissioner. Mr. Stern was one of the nation's leading foreclosure attorneys (representing the banks) based here in Florida, before he shut down his foreclosure operations in March 2011 after facing heightened regulatory scrutiny for his practices. Mr. Stern and his law firm were being accused of fraudulently foreclosing on thousands of Florida homes.

Now, Stern's former company, DJSP Enterprises, is blaming him for a number of deceitful practices, including the now well known "cost cutting" measures referred to as robo-signing. Robo-signing came to light a few years ago and is the process where employees sign documents without reading them. Stern is also accused of allowing employees to submit false or backdated documents to courts. Both practices are illegal and led to a brief halt of foreclosure filings when first discovered.

DJSP Enterprises, which now owns much of Stern's former operations, is suing him for fraud and seeking damages. At its height in 2009, Stern's law firm handled twenty percent of all foreclosures in Florida. The firm is now under investigation as many of those foreclosures were the result of fraudulent documents.

Fraudulent documents are a huge problem and make foreclosing on a home very problematic for banks. It is difficult to know if a document is fraudulent, and a qualified Jacksonville Foreclosure Attorney can help you defend against a foreclosure. Even if there are no fraudulent documents involved in your case, you still have rights and should not face foreclosure without legal representation. Contact a Jacksonville Foreclosure Defense Attorney to review your options.

There is a single fundamental action that must be done when faced with a foreclosure. Once served with a Summons and Complaint, you must file a response or an Answer to the Summons and Complaint within 20 days. The Complaint will and must state with specificity the nature of the action and what the Plaintiff (bank) is requesting.

Determining what to file and when to File an Answer in a foreclosure lawsuit is probably the most crucial step in a foreclosure lawsuit. There are several major benefits you cannot afford to miss out on. Once a response to your lawsuit is filed you will receive future notices of all future actions in the case. A properly written response can help to even the playing ground between the bank and yourself.

A lender bringing the foreclosure action certainly has multiple attorneys fighting for their interest and you should have an attorney reviewing your case and helping you fight to defend your rights and educate you on your options.

Contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer to review your case and see that your foreclosure Summons and Complaint is properly answered and well drafted. A Florida Foreclosure Lawyer will also make sure that all other aspects of your foreclosure case is properly handled, giving you the best chance of coming out of the foreclosure with your head high above water. Complimentary initial consultation.

If you are a Foreclosure Defense Attorney representing a homeowner, you have experienced all too well each and every Banks' attorney's continuous and unrelenting resistance to comply with discovery requests. The Foreclosure Defense Attorneys at Apple Law Firm PLLC meet this block wall by continuing to follow up on each discovery request and the filing of motions to compel with requests for attorneys' fees.

In multiple of our foreclosure cases, after a Bank's continual failure to respond to numerous requests for compliance with discovery requests and after a Motion to Compel has been ignored, Apple Law Firm calls the Motion to Compel up for hearing before a judge. More often than not, the court grants the Motion to Compel.

Following the Bank's continued failure to respond to discovery requests, even after being ordered by a court to do so, Apple Law Firm files a second motion. This motion asks the Court to compel the Bank's response for a second time and requesting the Bank's compliance with the Court's order together with a request for attorney's fees. On numerous occasions, at the second hearing, the presiding judge has no remaining patience for the Bank. The second motion is granted and Apple Law Firm awarded attorneys' fees and costs as sanctions for the Bank's continued failure to respond to discovery and a Court order.

It goes without saying, to be successful in litigation, attorneys must be persistent and this is especially true in Foreclosure Defense. If you are facing foreclosure, make sure you have someone on your side that will vigorously look out for your rights and best interests. Contact a Florida Foreclosure Defense Attorney or a a Florida Foreclosure Defense Attorney.

If a bank cancels or forgives debt from a mortgage, a Form 1099 is automatically sent to you to report the Cancellation of Debt as income. For those not familiar with a Form 1099, it is used to report income that is not earned from wages, salaries or tips. There are multiple versions of the 1099. The Form 1099-C is used to report the Cancellation of Debt. Unfortunately, the Cancellation of Debt reported on a 1099 must be included on a tax return as income on which you must pay taxes.

Since 2007, the Mortgage Forgiveness Act of 2007 (which will expire at the end of 2012) has allowed cancelled debt from a foreclosure to be excluded as income if your primary residence secured the mortgage. However, banks often do not allow the debt left over from a foreclosure to be simple written off in this manner. Instead, the bank chooses to pursue the borrower personally, after the foreclosure has ended and the home sold, for the remaining balance of the mortgage.

It is important to discuss this possibility with an attorney to make sure this does not happen to you. A Florida Foreclosure Defense Attorney can help protect you from being pursued for the remaining balance of your mortgage as well as help you prepare for the future. Contact a Jacksonville Foreclosure Defense Attorney for a complimentary initial review of your situation before its too late.

Toward the end of 2011, foreclosures across the nation increased over 20% from the previous quarter. Considering millions of Americans are still under water, the foreclosure increase is an unfortunate sign that home values are not likely to jump up any time soon. If you are one of the many Florida homeowners with a mortgage that is higher than your home is worth, you should consider contacting a Florida Foreclosure Defense Attorney to discuss some available options.

Nevertheless, many experts agree that the worst of the foreclosure crises the country has faced over the past few years has passed. But the types of homes facing foreclosure might start to change. The initial foreclosures occurred primarily in inner-city neighborhoods. As home values remain low, suburban neighborhoods could see more foreclosures as well. If you are facing foreclosure, contact a Jaksonville Foreclosure Defense Attorney. An attorney can explain the foreclosure process and help you remain in your home.

Unfortunately, Florida has one of the highest foreclosure rates in the country! The Banks that hold these mortgages have mountains of paperwork to sort through in order to deal with the large amount of mortgages in and heading towards foreclosure. The amount of paperwork Banks currently have is one of the main reasons why it often takes over a year for a home to be foreclosed upon, and a Florida Foreclosure Defense AttorneyAttorney can help extend the process even further.

Here in Jacksonville, a Jacksonville Foreclosure Defense Attorney will defend your rights for you, and force the bank to actually prove they have the right to foreclose on your home. It is important to know that by simply receiving a letter from the bank stating they intend to foreclose does not necessarily mean you must vacate your home immediately. The bank has to file a case against you and prove they are entitled to foreclosure. If you are facing a foreclosure, contact a Jacksonville Foreclosure Defense Attorney to discuss what options are available to you.

A judge of the Supreme Court of New York has ordered HSBC to pay a penalty of $10,000. HSBC allegedly filed a false document and then claimed they knew nothing about it. Supreme Court Justice Arthur Schack's opinion compared HSBC's defense to the false document to what many remember from Sgt. Schultz in Hogan's Heroes "I know nothing."

A senior vice president of HSBC later submitted a sworn affidavit stating that HSBC had no knowledge of the loan in question and placed blame of the false document on the loan servicer. Nonetheless, Judge Schack stood behind his decision stating HSBC is still responsible for the actions of its agents. Shapiro DiCaro & Barak, a Rochester-based law firm who represented HSBC in this matter, was also ordered to pay $5,000 for its involvement.

This isn't the first instance of Judge Schack sanctioning HSBC. Earlier this year, Judge Schack caught lawyers for HSBC filing documents signed by "robo-signers" who supposedly worked for HSBC but were in actuality employed by the loan servicer.

There has been so much fraud regarding loan documents in foreclosure actions filed by the banks, it is imperative that you contact a Jacksonville Foreclosure Lawyer or a Jacksonville Foreclosure Defense Lawyeror risk becoming a victim of an improper foreclosure.

In today's mortgage industry, the long-standing simple concept of the transfer of mortgages still exists. However, times have changed and the concept of transferring mortgages has become extremely complex.

Originally, when a Note and Mortgage were transferred to a new owner, the new owner would take possession of the original Note and Mortgage, and the original Note would be endorsed specifically to the new owner, much like a check. This process is reflected in Florida Statute § 673.2031(1) (2010) which states: "[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument." The Supreme Court of Florida held that a mortgage can be transferred without a written assignment simply by delivering the note with intent to assign it. Hence the well-known expression, the Mortgage follows the Note.

With the extreme demand of finance today, the simple concept of just endorsing and physically delivering the note and mortgage from one lender to another no longer exists. Today, the path most likely seen is:
➢ The Mortgage originator (Lender) originates hundreds of loans; THEN
➢ The Mortgage originator uses the borrowed money in order to create more mortgages; THEN
➢ When the Mortgage originator has a sizeable number of mortgages, the originator partners with one of the major investment banks to pool the mortgages and create securities of out them. This process is called "securitization."

Securitization occurs when the Mortgage originator assigns a pool of mortgages to a newly formed trust. The trust in turn issues securities for the mortgages, which are sold to investors. The trust becomes the owner of all the mortgages in the pool and the investors receive payments on the securities based upon collection of mortgage payments from the pool. Packaging mortgages as securities makes trading mortgages much easier, rather than trading each mortgage separately.

This brings me back to the transfer of individual mortgages. As described, mortgages and notes are assigned by the hundreds and even thousands; making it extremely alluring to skip entirely the preparation and recording of a proper chain of title for each mortgage in a pool. Since mortgages are transferred multiple times within the life of a loan, each transfer is generally only temporary. To streamline the process, transfer generally only takes the form of a pledge of the mortgages in bulk together with delivery of the original Note to the bank. The mortgages may be transferred in bulk, unrecorded, many times without ever physically moving the notes.

If you are facing foreclosure and believe your Note and Mortgage were securitized, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Lawyer today.

If you are represented by a lawyer in a foreclosure action, and that lawyer failed to appear at a hearing that resulted in a foreclosure judgment being entered against you and a sale date set, you may be able to file an Emergency Motion to Set Aside the judgement based on your lawyer failing to appear in court. It is best to have an attorney assist you with this Motion and hearing.

The basis for such an emergency motion comes from Florida Rule of Civil Procedure 1.540, Relief From Judgment, Decrees, or Orders, and states: '

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

However, please note that simply filing this type of motion does not affect the judgment or suspend the holder from moving forward. A hearing must be set, held and the motion must be granted before it can have any affect. While these types of things hopefully have extremely rarely, they do sometimes happen.

If you are facing a Florida Foreclosure Lawsuit and you have had a foreclosure judgment entered against you, you may have options. Contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Defense Lawyer today for a free case review to determine what options may be available to you.

Florida Attorney General Pam Bondi is part of the seven attorney general primary team consulting with banks concerning a nationwide settlement agreement to redress banks' foreclosure wrongdoings. While Pam Bonding initially rejected allowing principal reductions of mortgage debt, she now appear to be willing to consider it "so long as it remedies harm to consumers and stays consistent with the law enforcement role of the state attorneys general," she announced October 18, 2011. Nonetheless, Bondi's office reported she has not changed her position on reducing overall mortgage balances, which has become a central issue in the overall settlement discussions.

There has been speculation that Bondi is beginning to soften her stance as the crumbling coalition of state attorneys general continue their bargaining with our largest banks. California Attorney General Kamala Harris left the group this month because she believes proposals were not going far enough to help homeowners or punish leaders, and New York Attorney General Eric Schneiderman was dismissed because he was reportedly undermining settlement efforts.

While the negotiations are largely kept secret, a few details have gotten out. Discussions now include allowing principle reductions and permitting current underwater homeowners to refinance if a bank owns their mortgage. However, allowing underwater homeowners to refinance may be an attempt to entice California Attorney General back into the negotiations. California currently has 2 million mortgages with negative equity. Bondi is reported as saying it is extremely important to get the states that have left back into the negotiations.

If you are one of the thousands of Floridians facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today to determine what foreclosure defense options may be available to you.

Plaintiff's seem to have sunk to a new low when trying to avoid responsibility for the contents of their mortgage foreclosure complaint...some plaintiff's believe that "verifying" complaint causes them to purger themselves! Now this particular issue is now before Florida Second District Court of Appeals.

The controversy arises from an order from a Pinellas County Florida court which dismissed Plaintiff's, U.S. Bank as trustee for a securitized mortgage trust, foreclosure complaint and order Plaintiff to file an amended complaint and instructed U.S. Bank to verify the complaint itself. Instead of merely reviewing the statements contained in the documents and verifying its complaint pursuant to Florida law, on December 12, U.S. Bank filed an appeal of the lower court's ruling asking to be exempted from the verification rule.

In its petition for writ of certiorari U.S. Bank states "in order for U.S. Bank to comply with the trial court order, it would be forced to commit perjury or altogether forego its right to pursue" its foreclosure case. We will have to see if the courts believe the argument that even though a foreclosure complaint can be brought in the name of an interested party, another party is the party with the actual knowledge of the issues and should verify a complaint.

If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Lawyer today for a complimentary case review in order to determine what foreclosure defense options may be available to you.

On Monday, December 19th, Charles Canady, the Chief Justice of the Florida Supreme Court signed administrative order AOSC11-44 which put an end to the Residential Mortgage Foreclosure Mediation (RMFM) program. The RMFM program was established in late 2009 and referred all mortgage foreclosure actions on residential homestead properties to a court supervised mediation process with the goal of resolving mortgage foreclosures before judicial disposition of foreclosure cases

The Court does not give specific reasons for ending the RMFM program but states in administrative order AOSC11-44 "the Court has reviewed the reports on on the program and determined it cannot justify continuation of the program." As of the date of the Order, December 19, 2011, "no new cases may be referred to mediation pursuant to the statewide managed mediation program."

Those cases that are already referred to the RMFM program or are pending in a mediation program as of the date of the order will remain in the program and will continue until the mediation process is completed. Immediately ending the RMFM program seems to be the easy way out for the courts. Instead of tweaking the program to make it more effective and meet its goal of helping to dispose of cases that benefits both banks and struggling homeowners the Court has just decided to end the program entirely.

If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Defense Lawyer today to determine what foreclosure defense options may be available to you.

To read the full text of Florida Supreme Court Administrative Order AOSC11-44 click here.