Florida Foreclosure Defense Lawyers Blog

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.

After about a year of decreased foreclosure filings due to the "robo-signing" scandal, where banks allegedly took property without properly reviewing the loan documents, the number of foreclosure filings are reportedly set to increase after lenders have supposedly taken the time to ensure that all their paperwork is in order. During that time off the number of foreclosures to be filed have mounted.

Over the last year, housing prices have maintained a slight yet steady increase. House prices in 20 U.S. cities rose 0.9% in July, making 4 consecutive months of increases, according to the S&P Case-Shiller index of home values. Nonetheless, that is still 4.1% below where values were a year ago. If foreclosed properties flood the market again, housing prices will most likely decrease again because banks price foreclosed homes towards selling quickly.

An increase in foreclosure filings has already been reported in this year's third quarter. A 0.3% increase was seen which reverses the decrease experienced in the last 3 consecutive quarters. Foreclosure filings reported include default notices, scheduled auctions and bank repossessions.

Unfortunately, "increased foreclosure filings will continue to erode house prices....the questions is, at what point do you reach the bottom of the market?" said Ed Delgado, a former Wells Fargo senior vice president and CEO of the Five Star Institute, a mortgage-education provider. Delgado does not see any recovery in the foreseeable future and is concerned bottom may not be until the third quarter of 2012.

If you are facing a Florida Foreclosure Lawsuit, you may need help navigating the foreclosure process and today's housing market. Contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today for a free review of your situation.

After about a year of decreased foreclosure filings due to the "robo-signing" scandal, where banks allegedly took property without properly reviewing the loan documents, the number of foreclosure filings are reportedly set to increase after lenders have supposedly taken the time to ensure that all their paperwork is in order. During that time off the number of foreclosures to be filed have mounted.

Over the last year, housing prices have maintained a slight yet steady increase. House prices in 20 U.S. cities rose 0.9% in July, making 4 consecutive months of increases, according to the S&P Case-Shiller index of home values. Nonetheless, that is still 4.1% below where values were a year ago. If foreclosed properties flood the market again, housing prices will most likely decrease again because banks price foreclosed homes towards selling quickly.

An increase in foreclosure filings has already been reported in this year's third quarter. A 0.3% increase was seen which reverses the decrease experienced in the last 3 consecutive quarters. Foreclosure filings reported include default notices, scheduled auctions and bank repossessions.

Unfortunately, "increased foreclosure filings will continue to erode house prices....the questions is, at what point do you reach the bottom of the market?" said Ed Delgado, a former Wells Fargo senior vice president and CEO of the Five Star Institute, a mortgage-education provider. Delgado does not see any recovery in the foreseeable future and is concerned bottom may not be until the third quarter of 2012.

If you are facing a Florida Foreclosure Lawsuit, you may need help navigating the foreclosure process and today's housing market. Contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today for a free review of your situation.

A potentially key witness in a Nevada case against two title officers who have been accused of "robo-signing" thousands of documents was found dead in her home earlier in the month. Authorities were altered when the witness missed her scheduled court date on a related misdemeanor charge and the subsequent hearing where she was to testify against the two title officers.

Law Vegas police have stated that they do not suspect foul play and are not treating the death as a homicide. A preliminary investigation has yielded evidence that she took her own life. The witness was facing up to a year in jail and a $2,000 fine for her role in the robo-signing scheme where she estimated she had notarized more than 30,000 documents of people not in her presence during the course of her employment with Lender Processing Services Inc. between 2005 and 2008. In November, the witness plead guilty to a single count of notarizing the signature of a person not in her presence.

The developments in Nevada are unfortunate for several reasons, most obviously the loss of life. Hopefully the case against the two title officers and the role Lender Processing Services, Inc. played in subject robo-signing scandal can go forward without this key witness. if you are facing a Florida Foreclosure Lawsuit and believe you have been a victim of robo-signing, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today.

After the Florida Bar News published an article about robo-signing in the mortgage industry in the September 15th edition, State Attorney Dennis Ward of the 16th Judicial Circuit in Florida has decided to take a closer look. For those of you not yet familiar with the term robo-signing, it is a practice where banks and their counsel create documents relating to foreclosures that are often questionable in nature and have low level employees sign them without verifying their contents or correctness. Since robo-signing has caught the attention of the media in late 2010, there has been a temporary decrease in foreclosure filings throughout the state of Florida.

Mr. Ward stated his ultimate concern is protecting the integrity of the legal system and land title records. He believes when a home owner is not paying their mortgage, the bank should be able to foreclose on the property as soon as possible; provided that banks do so with valid paper work and with regard to due process.

The continued abuses in foreclosure paperwork, which banks said were ended last year after they were put under great scrutiny, is what has grabbed Mr. Ward's attention. He also recognizes that his agency does not have the resources to address this issue fully and that it is better suited for Attorney General Pam Bondi. Nevertheless, it is time for State Attorneys' to address the issue however they can. Looking into the individuals who actually sign or file these questionable documents who know them to be false of intentionally deceptive is going to be State Attorney Ward's focus.

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

Most people do not realize that when they borrow money to buy a home, they are in actuality signing the biggest check of their life! The promissory note you sign for your home loan is just like a check. A note and a check are both promises, signed by you, to pay a particular named party a specific amount of money. The only person who can cash a check is the person who has signed the back of it, also known as an endorsement.

The promissory note you signed for your home loan goes through the same exact process as if you endorsed your check in blank, it can be passed from person to person. However, foreclosure plaintiffs are trying to cash promissory notes (foreclose on property) with blank endorsements on them. The loan originator endorses the note in blank, thereby allowing it to be transferred among parties without any real evidence of the transfer. This is just one of the many foreclosure defenses that can arise from the transfer of a note or mortgage.

If you are facing a Florida Foreclosure Lawyer, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer today to determine there are any defenses which arise from the transfer and endorsement of your promissory note. The first consultation is free.

The Octomom was recently in the news for facing foreclosure on her home. She failed to make payments on her Orange County home for the past three years. The home has also been "let go" and is currently "in shambles".

Octomon did nothing to create a potential foreclosure defense in all this time. She has not done any research or investigation on the property or Bank who allegedly holds the mortgage to uncover potential defenses that could help her keep the property and stay in her home. Octomon has done nothing to try to keep the property and seems content to let it go back to the bank.

Had Octomon done some simple research and investigation, a solid foreclosure defense could have been formed. Now that 85% of U.S. mortgages are securitized into trusts and may not be recorded properly, many homes have disputable chains of title; which may make it very difficult for any Bank to prove they can foreclose on someone's home. Also very common today, is widespread foreclosure fraud with "robo-singers," missing and/or fabricated mortgage assignments, and invalid dates and notaries just to name a few.

If you are facing a Florida Foreclosure Lawsuit, do not make the same mistakes the Octomon has. Contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyer today for a free case review to begin discoverying potential defense to your foreclosure.

Robo-signed documents used in foreclosure actions may leave lasting impacts in property records for decades. Buyers of foreclosed properties may face difficulties proving they hold clear title to the properties if their ownership is ever challenged. One of the biggest concerns stems from whether or not homeowners were given proper notice of foreclosure actions and/or of the foreclosure sales. If the notice requirements are not strictly complied with, the Court may not have jurisdiction over the case and the action could be ended.

Another concern is the long-lasting impact on the legal system. The production of fraudulent documents, meant to look genuine and fool the legal system, may be depriving people of some of their legal rights. If that is not enough, people are swearing they are vice presidents of companies they do not work for and signing affidavits stating they have personal knowledge over the subject matter when they do not. Citizens' confidence in the legal system has been and is currently being damaged. Foreclosing banks are being allowed to get by with sloppy paperwork and questionable signatures, but homeowners would never be able to do the same. Missed mortgage payments, do not give banks the right to enter a court of law and take someone's home with the use of false documents.

It is difficult to navigate a foreclosure alone. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today for a complimentary consultation to discuss your foreclosure goals and potential foreclosure defenses.

What is going on in with all of the Foreclosure craziness? This has been the question for millions of homeowners dealing with the potential loss of a home right now. People have heard the horror stories of predatory lending, and the other stories of unqualified homeowners working with brokers to deceive lenders to get financed. But many mortgages fall somewhere in between, leaving big question marks in place of answers the housing market desperately needs.

As a greater number of questions are pouring in, however, searching for answers has become a daunting task. MIllions of homeowners are in a struggle to hold onto their loans while batting off multiple lenders. The problem is many of the original brokers and lending companies have since gone out of business or been the subject of criminal charges stemming from their faulty practices. Often times, the loans in question have been securitized into a mortgage-backed trust. The issue underlying this confusion is that no one knows whom the owner of the note and mortgage actually is. This is largely because of one four-letter acronym, MERS.

MERS (Mortgage Electronic Registration System), a service created to track mortgage transfers, was created in 1994. MERS replaced the old system of "walking" every important mortgage document to the County Clerk's office. With this shortcut in place, lenders were able to save millions of dollars in local recording fees and started transferring mortgages at a pace that, we would later learn, was far too much to handle. So grueling, in fact, MERS failed to properly follow state and local laws in documenting these transfers. Now when it comes time to foreclose instead of documenting each transfer, MERS allegedly signs the mortgage from the original lender to the most recent owner.Many courts are now deciding whether MERS has actual standing to foreclose.

There are things you can do to be prepared for or stave off a potential foreclosure. One of the most important is to communicate with your lender. If you are facing the prospect of foreclosure, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer today to determine what foreclosure defenses may be available in your specific case.

MERS appears to finally be succumbing to many of the arguments that foreclosure defenses attorney's and other MERS detractors have been stating for years. Effective July 22, 2011, MERS officially changed Rule 8 of the Rules of Membership which now states:
"No foreclosure proceeding may be initiated, and not Proof of Claim or Motion for Relief from Stay (Legal Proceedings) in a bankruptcy may be filed, in the name of Mortgage Electronic Registration Systems, Inc. (MERS)" and "the Certifying Officer must execute the assignment of the Security Instrument from MERS before initiating foreclosure proceedings or filing Legal Proceedings and promptly send the assignment of the Security Instrument for recording in the applicable public land records".

This new policy runs counter to an argument that MERS and many Plaintiff's attorney's have been making for years, that an "equitable transfer" occurred prior to the date the foreclosure actions were filed and the assignment filed after the foreclosure date doesn't matter, the date of equitable transfer is what truly matters. It remains to be seen how this new policy change will be treated by judges where cases have been filed and the assignments have already been executed...and what about cases that have already been adjudicated?

If you are facing a Florida Foreclosure Lawsuit and have a MERS mortgage, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Defense Lawyer today to see what foreclosure defense options are available to you.

After a Reuters report and county officials in more than three states on Monday reported thousands of documents showed evidence that banks have continued the illegal practice of robo-signing, lawmakers and law enforcement agencies are demanding investigations of mortgage lenders. Senator Sherrod Brown, D-Ohio, chair of the Financial Institutions and Consumer Protection Subcommittee, plans to hold a hearing regarding the issue.

The Essex County Massachusetts property deed office reported 1,300 document filings since October with the signature of Linda Green appearing in 22 different handwriting styles and multiple titles. The Massachusetts Attorney General's office is now scheduling meetings with many of the state's deed registers' to investigate. In Guilford County, North Carolina, the county recording office reported nearly 500 documents with suspected robo-signatures. More examples are surfacing as reports of the robo-signed documents spread.

Brown's supporters are mostly of a similar mindset: if regulations are too relaxed, the housing market will face the same issues that left it crippled in the past. After the robo-signing issue arose last fall, Lenders were left to police themselves after they promised to cease the practice. But the continuing robo-signing issue is a testament that self-regulation cannot solve this problem.

This news is another potentially significant blow to mortgage lenders. Let's hope that this time, something material comes from these news allegations. Often times, finding the discrepancies in loan documentation takes extensive discovery. If you are facing a Florida Foreclosure Lawsuit and want to explore your potential foreclosure defense options, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today.

Many who read this blog or follow financial news are familiar with the promises from top Banks in the US to stop the filing of fraudulent and faulty foreclosure documentation. A recent Reuter's investigation proved that many of the same companies are still utilizing the same lackadaisical practices that stifled America's housing market and plunged thousands of homeowners into foreclosure.

The article mentions 87-year-old resident of Immokalee Florida, a town at the epicenter of the foreclosure crisis in Collier County. OneWest Bank filed foreclosure paperwork in that was peppered with problems, namely in the assignment of mortgage. But this key document was not signed and recorded with Collier County until some months after OneWest filed the foreclosure!

The Reuters investigation also identified at least six robo-signers which appear on thousands of mortgage assignments filed by banks in recent months. Some of the individuals have even appeared at depositions only to claim that they never read or checked the assignments, and one, when asked what an assignment of mortgage is, replied: "I'm really not sure."

It's fairly easy to see that the recent settlements between Banks and investors have done little to stop these questionable practices. The banks seem to be saying that providing proper documentation doesn't matter, because many of these homeowners are in fact delinquent on their mortgages. Although that might be the case, it doesn't give the bank carte blanche authority to just take people's homes while not following the legal requirements to do so.

For now, Courts tend to disagree with this analysis, for whatever reason. Until Banks are held more accountable and made an example of, the fight for homeowners is still an uphill battle. Florida Foreclosure Defense attorney's are working to help turn the tides. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Defense Lawyer or a Florida Foreclosure Defense Lawyer today for a complimentary consultation to determine what potential foreclosure defenses are available to you.

Ever since its was revealed that federal investigators were taking a look into their mortgage foreclosure practices Lender Processing Services Inc., the company has maintained that the search would not result in numerous financial penalties by way of fines and lawsuits. The investigations look to be doing just that as LPS lowered its second-quarter earnings forecast from 79¢ to 82¢ cents per share to 54¢ to 56¢ cents per share last Thursday.


The catalyst behind the LPS breakdown is the intimate relationship they share with lenders, who have slowed their foreclosure process in light of allegations of forged documents by LPS subsidiaries. The company is also facing increased costs because of pressure put on customers and regulators.

Last week LPS stock fell to $20.42, down $2.95, and Macquarie Capital analyst Kevin McVeigh lowered his rating on the stock from "outperform" to "neutral." If one thing is certain for the company, it's that investors will take a more observational stance until investigations come to a close and the effects on LPS come full circle.

If you are having trouble paying a mortgage or if you are currently in foreclosure, contact a foreclosure defense attorney in Jacksonville today to discuss your case and find out what options may be available.

Those who have lost a property to foreclosure know one thing is almost certain; they're not likely to see their homes again. A New York man is singing a different tune, however, after the Supreme Court of New York vacated a bank's foreclosure sale of his home. Justice Allan Weiss overruled a Deutsche Bank's foreclosure on a defendant's property, finding that the documents filed by the bank deprived the homeowner of due process.

It may seem like a fairy tale, but here is the law and how it was applied: In New York, a party moving to dismiss a default must demonstrate a reasonable excuse for the default and demonstrate a potentially meritorious defense. A defendant need not demonstrate this if the basis for the request to vacate is that the Court lacks personal jurisdiction. Keep in mind that if the court doesn't have personal jurisdiction, subsequent holdings should be dismissed and it is the Plaintiff's burden to prove personal jurisdiction by proper service of process. A process server's signed affidavit serves as prima facie evidence of proper service. If personal jurisdiction is not obtained in this fashion, the proceeding is proper for dismissal without condition.

The Court found the Plaintiff failed to submit any proof that they properly served the Defendant. The affidavit of service Plaintiff submitted had a Supreme Court of Kings County Caption (it should have been in Queens) with an index number that did not match the actual foreclosure. The address where Plaintiff tried to serve the Defendant was not even the Defendant's address.

This is a prime example of the sloppiness that certain lenders and their legal counsel have perpetrated when pursuing sometimes thousands of foreclosures nationwide. This should serve as a reminder to homeowners that there are defenses to a foreclosure case. If you are facing a Florida Foreclosure Lawsuit, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer for a free consultation. Do not lose the ability to defend your home by sitting on your rights. c

Recent reports have scrutinized practices relating to a certain investment vehicle; the mortgage backed securities market. This market is operated by originators of the loan, the lenders, selling their loans into a trust, which in turn pass the benefit of these loans on to investors.

Transfers from the mortgagee to a trust, like all secured transactions, are subject to some fairly strict requirements. These requirements are set out in the trusts "pooling and servicing agreement" called the PSA. Within the PSA are all the rules of the assignment, which the mortgagee and trust must follow, such as including the trust documents in the assignment from the lender to the trust - the promissory note, the mortgage, the mortgage assignment and a title insurance policy are necessary.

The PSA is usually uniform. They require the note itself to be the original note, indorsed to the trust or in blank. This is so others know the bank was the original lender on the note but that the trust is now the owner. While the note is indorsed, the mortgage itself must be assigned, usually in a separate document. Some trusts allow the mortgage to be assigned "in blank", meaning the name of the new owner isn't specified. The name of the trust (the new owner of the mortgage in this situation) is the only thing that can be left blank on the transfer.

A study was conducted over a three-year period in Hillsborough, Lee and St. Lucie County's, Florida, from 2008 to 2010. During that period, 4,580 assignments of mortgage took place between banks and these six groups of trusts: Bear Stearns, GSAMP, GSAA, Morgan Stanley, Structured Asset Investment Loans (SAIL) and Structured Asset Mortgage Investments (SAMI).

The study of those assignments returned some peculiar results. Many other items besides the "in blank" new owner were also left blank, such as the effective date of the assignment. Without this date recorded on the original assignment, the question then becomes whether and when the assignment actually took place.

In fact, throughout the study, no document in the 4,580 assignments filed in the three Florida Counties was original - all were prepared by mortgage servicers years after the trusts had closed, back dated to reflect a proper transfer date.

If the trusts acquired the mortgage years after the trusts closed - what mortgages actually were in the trusts that were sold to investors? Why, if original documents were in fact missing, were they not reported correctly as missing? Finally, what is the remedy for the buyer?

Many are familiar with the saying: "perception is reality." It may just seem that foreclosures by trusts are legitimate, even without evidencing the ownership of the note and mortgage. But the perception for the purchaser is that these mortgage-backed securities thrived on fraudulently manufactured documents and poor customer relations.

If your mortgage has been pledged to a trust and you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Lawyer to assist you and determine what foreclosure defenses may be available to you.