Florida Foreclosure Defense Lawyers Blog

An interesting by-product of "waiting in the wing" is the tendency for other areas of life to be affected. The Florida foreclosure backlogs have people doing just that - waiting - and it is beginning to take a negative toll on many homeowners. Recently, attorneys in Florida have noted how the foreclosure process has affected clients in other ways, such as those looking to discharge their debts in bankruptcy.

Some clients in Florida can have their debts discharged in bankruptcy fairly quickly. But many are finding their financial lives still on hold when a home is pending in foreclosure... a process that can take up to 3 years in Florida. By that time, the clients may have paid off past debts and repaired their credit. Even so, with the foreclosure still pending, it remains difficult to secure financing from a lender. For example, if the client wants to purchase a new home, many banks will not lend to borrowers who have a foreclosure judgment on record within the past 36-months.

Until Florida's foreclosure procedure is cleaned up, banks are reluctant to file more foreclosures to add to the 368,000 still pending. As a homeowner, you can avoid the effects of "waiting" for a foreclosure judgment by taking action. Call a Jacksonville Foreclosure Defense Attorney and schedule a consultation to see what options are available to you. Many times these consultations are free. Navigating the harsh waters of a Florida foreclosure can be made easier by enlisting the help of Jacksonville Foreclosure Defense Attorney early on in the process.

If you live in Jacksonville and are under water on your mortgage -- i.e., your home is worth less than you owe on your mortgage -- you may be considering the option of stopping payments and allowing the bank to foreclose on your home (often called a strategic default). But not everyone wants a foreclosure; homes are a lifelong investment and often are attached to great memories and heavy sentiment. If you are behind on your payments, you have several options, all of which a qualified Jacksonville Foreclosure Attorney may be able to help you determine your options. Your options may include

Reinstatement. This means paying back everything you owe to the bank in order to become "current" on your payment. Unless you come into a large amount of cash relatively quickly, this option is likely not available to most people.

Workout. Some banks and mortgage companies know that foreclosing on a home means another empty house on their books. That is why they may be willing to negotiate a lower payment. There are several types of workouts: forbearance, loan modification, and partial claims.

Refinance.

Sell the home. Some buyers may wish to purchase a home as a short sale, and your mortgage company may be willing to accept the final funds from the sale in order to satisfy the mortgage.

Deed-in-lieu of foreclosure. This is where you give your home back to the mortgage company and simply walk away.

Bankruptcy. While this is not your first option, it can allow you to remain in your home in certain situations. Contact a Jacksonville Bankruptcy Attorney or Jacksonville Foreclosure Attorney to discuss how this option can benefit you.

Each option has its own benefits and disadvantages. One may be more beneficial to some people than others. Contact a Jacksonville Foreclosure Defense Attorney to talk about the options available to you.

Most likely if you are facing a Foreclosure, it is because of an unforeseen financial hardship. It is also likely that falling behind on your mortgage payments is not the only financial hardship you are facing. It might have also become difficult to pay your other monthly expenses and debts as well.

A Florida bankruptcy may be helpful in defending your foreclosure since there is not a one-size-fits-all approach to every foreclosure defense. Taking into account your personal and family goals, and your overall financial situation is important and key to successful Foreclosure Defense. No matter what course you choose, it is important to put your plan into action quickly.

A Foreclosure lawyer can offer certain options while a Bankruptcy lawyer can offer others. For example, foreclosure defense can offer a loan modification, allow you to walk away from a bad investment, protect you from future liabilities, save you from hours of paperwork, stop harassing collectors from calling you, and protect your credit rating from dropping further. On the other hand, Bankruptcy can allow you to end creditors' reports of delinquency, protect assets, clear away other debt, stall a foreclosure sale, strip away other mortgages, and in some cases help rebuild your credit faster.

Depending on your personal situation, a bankruptcy may be used in conjunction to foreclosure defense. In Florida, Foreclosure Defense and bankruptcy are two tools that can be used to avoid Foreclosure and create a long-term plan for you and your family. Contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Defense Lawyer today to determine if one or the other or both of these strategies can help you meet your long-term goals.

I have a 1st and 2nd Mortgage on my home. The 1st Mortgage is currently being foreclosed on by the 1st Mortgage Lender. However, my 2nd Mortgage Lender has now filed a completely separate action against me for the amount I owe them, but they are not foreclosing. Instead they are suing solely on the Promissory Note and did not respond in the foreclosure action on my 1st Mortgage. Can the 2nd Mortgage seek a Judgment against me before the 1st Mortgage finishes their foreclosure action?

Generally speaking, the 1st Mortgage (the mortgage used to purchase the property) has priority over all other mortgages on the same property executed around the same time or later. In Florida, the mortgage that is recorded first takes priority. In other words, for a 2nd mortgage, one not used to buy the property, to take priority over a 1st Mortgage, the mortgage must have been executed and recorded without notice of the 1st Mortgage.

When a 1st Mortgage successfully forecloses, all junior interests in the property, including the 2nd Mortgage, are eliminated. However, this is not the case where a 2nd Mortgage or other junior interest forecloses. When a 2nd Mortgage forecloses, all senior interests remain in place and the buyer takes the property subject to the 1st Mortgage. However, in order for junior interests to be eliminated with the foreclosure of a 1st Mortgage, the 2nd Mortgage must be made a party to the foreclosure action.

After a foreclosure and the property is sold, the proceeds from the sale are dispersed in this order:
1. Foreclosure costs are paid; then
2. The Mortgage foreclosed on is paid; if any money is left over, then
3. Junior Mortgage interests are paid in their order of priority.

Today, the proceeds from a foreclosure sale generally never are enough to pay off the mortgage foreclosed upon (usually the 1st Mortgage). Therefore, 2nd Mortgage holders do not receive any proceeds from the foreclosure sale of a 1st Mortgage and loose there interest in the property entirely.

Therefore, in an attempt to collect what is owed on a 2nd Mortgage and if the 2nd Mortgage holder thinks there is enough money available from the borrower, the 2nd Mortgage can file their own independent action against you directly based on the balance due on the Note instead of waiting for the 1st Mortgage to complete a foreclosure action and hoping there will be excess proceeds. This can be done irrespective of what the 1st Mortgage does.

When filing their own action, a 2nd Mortgage holder has two options. They can choose to file a foreclosure action, or sue based on the Note to collect the balance owed, which the 2nd Mortgage holder chose to do in this scenario.

If you are facing foreclosure, contact a Florida Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer today for a complimentary review!

The simple, straight to the point answer is YES! You should be worried about a deficiency judgment if you are currently in foreclosure or in default on your mortgage. Being in foreclosure or default has a high risk of you losing your home, but it also has a high risk of a judgment being entered against you.

This is a Deficiency Judgment--when a real estate property is foreclosed upon in Florida, the property is sold at a foreclosure sale. If the property owner owed $200,000 on her mortgage when she was foreclosed upon, and the property is only sold for $100,000 at the foreclosure sale, then the lender/bank can obtain a deficiency judgment for $100,000. A court order is entered stating the property owner owes the lender/bank $100,000. However, getting the deficiency judgment and actually collecting on it are two different beasts.

The lender/bank must obtain the deficiency judgment within 5 years of the mortgage going into default or of demanding payment. Also, a trial court has discretion whether or not to grant a deficiency judgment, and its decision must be based on established equitable principles, taking into account the specific facts of the case, and the decision is always subject to review by an appeal. Carlson v. Becker, 45 So.2d 116 (Fla.1950). The court must take into account the reasonable and fair market value of the property, and the reasonableness of the amount of the foreclosure sale. Savers Federal Savings & Loan Association v. Sandcastle Beach Joint Venture, 498 So.2d 519 (Fla. 1st SCA 1986). "The granting of a deficiency judgment is the rule rather than the exception." Flagship State Bank of Jacksonville v. Drew Equipment Co., 392 So.2d 609 (Fla. 5th DCA 1981).

If you are facing foreclosure, there may be steps you can take to ensure you do not get stuck with a deficiency judgment. Contact a Jacksonville Foreclosure Defense Lawyer or a Jacksonville Bankruptcy Lawyer today for a free case review to evaluate your defense options.

Following the housing crisis of 2008, congress and President Bush created the Federal Housing Finance Agency, which is an independent agency that oversees Fannie Mae, Freddie Mac, and Federal Home Loan Banks. At a recent meeting with congress, the FHFA's Director, Edward DeMarco, promised to review a new plan that will help homeowners who file Chapter 13 bankruptcy.

The plan would allow homeowners who file Chapter 13 to pay down loan principal, instead of interest, for a five-year period. This allows homeowners to reduce -- or even eliminate -- negative equity in their homes. In other words, the plan helps people get out of the situation of being "upside down" or "underwater" on their loans. To qualify, homeowners would have to settle claims against loan servicers. This would reduce litigation and will hopefully reduce the number of homeowners facing foreclosure or filing bankruptcy.

If you are facing a Florida Foreclosure Lawsuit and are at risk of losing your home or are considering filing bankruptcy, contact a Florida Foreclosure Defense Attorney today for a complimentary consultation to discuss your options.

Since its inception, Florida's state foreclosure mediation program has been met with mixed reviews. Many complain that it has not produced the desired results because it doesn't encourage honest participation from any of the parties.

But it was a step in the right direction, and federal courts have taken notice. Using Florida's state program as a guide, Federal courts in Orlando started a program that helps people remain in their homes. Unlike the Florida state program, the federal program has been very successful.

Though only a few hundred cases have gone through the program, 90% of those who have used it have been approved for mortgage modifications. The program is now moving to Manatee and Sarasota counties, and has plans to move to Jacksonville in the near future.

One drawback is that, in order to participate in the federal program, homeowners must file Chapter 13 bankruptcy first. Not everyone qualifies for Chapter 13 bankruptcy; not to mention the program can be complicated. Nevertheless, you should speak with a Florida Foreclosure Defense Attorney or a Jacksonville Bankruptcy Attorney if you're interested.

This program should benefit both homeowners and mortgage lenders. Lenders have been relatively slow in initiating foreclosures lately because they do not really have much incentive to repossess a home: foreclosure basically means the lender is taking possession of the home and then losing more money on it in a foreclosure sale. The program encourages lenders to renegotiate with the homeowner so the homeowner can remain in the house and the lender can recover some of its losses.

Though the program has not yet moved into Jacksonville, it will hopefully be a big help for Florida's housing market that has one of the highest foreclosure rates in the nation. Keep reading the blog for more updates, or contact a Jacksonville Bankruptcy Attorney or Florida Foreclosure Defense Attorney to learn more about the program once it gets implemented.

Ben-Ezra & Katz and Lender Processing Services, Inc. (LPS) have been sued in the Northern District of Florida. The lawsuit alleges that LPS used its relationship with certain mortgage servicers to to refer foreclosure related business to particular law firms. The law firms, including Ben-Ezra & Katz, would then pay an illegal kick back to LPS. The kick back fee would then be re-categorized as "administrative fees" and passed on to the homeowner in foreclosure. The lawsuit alleges that when LPS created these kick back agreements they illegally split attorney's fees in violation of the U.S. Bankruptcy Code. Additional claims in the lawsuit include fraud on the court, breach of the uniform mortgage covenant, unauthorized practice of law and civil conspiracy. The lawyer that filed the lawsuit, Alabama-based Nick Wooten, is seeking class action status for the case.

A federal bankruptcy judge in New Orleans has imposed sanctions on the mortgage servicer Lender Processing Services (LPS). Federal judge Elizabeth Magner imposed the sanctions after she concluded that LPS deliberately committed fraud on the court when it submitted a "sham" affidavit and gave false testimony in a foreclosure action in her court.

LPS has been under an increasing level of scrutiny after allegations arose that LPS falsified documents in some of their foreclosure cases. Additionally, LPS has been accused of misrepresenting the amounts that homeowners actually owed on their mortgages.

If your home is in foreclosure and LPS is the servicer of your mortgage, contact a Florida Foreclosure Defense Lawyer. Florida Foreclosure Defense Lawyers know how to combat these types of fraud and will fight for your legal rights.

The FDCPA is an Act that Congress passed in response to a growing number of abusive collection practices that creditors used to collect consumer debts. The act provides guidelines that creditors must follow when trying to collect debts from consumers. Before mentioning the restrictions that are imposed upon debt collectors, it is important to distinguish whom the Act applies to. The Act applied to debt collectors: any person who regularly collects debts that are owed to others. This also applies to attorney collectors. However, in-house collections are not covered. So if the collection department from your favorite store is contacting you regarding your credit card with them, they are not covered by the FDCPA. (They are governed by the Florida Consumer Collection Practices Act.) However, if that same store used an outside collection agency, that agency is governed by the FDCPA.

Some restrictions that the FDCPA puts on debt collectors are:

1. Debt collectors cannot contact a third party who does not owe the debt, such as your employer, relative, or friend.

2. Debt collectors cannot threaten to turn over your account to an attorney, garnish your wages, or repossess your property UNLESS they have an actual intention of doing so.

3. Debt collectors must call between 8am and 9pm, unless you give them permission to do otherwise.

4. Debt collectors cannot use obscenities, insults, or racial slurs.

5. Debt collectors cannot threaten to arrest you if you do not pay the debt.

These are just some of the major rules of the FDCPA, there are many more. If you feel that a creditor has violated this law when trying to collect from you, contact a Jacksonville bankruptcy lawyer today for a consultation.

NO. When you file bankruptcy, an automatic stay is put into place that blocks creditors from trying to collect from you. A creditor cannot call or write you to ask for you to pay a bill and they cannot repossess your property. A Jacksonville bankruptcy attorney can probably get this property back for you. If the creditor knew about the bankruptcy, which is likely, then your bankruptcy attorney can actually sue the creditor for monetary damages due to FDCPA violations.

Yes. When you file bankruptcy, you have the option to keep or surrender secured collateral, including real property. So you can decide, with the help of your Jacksonville bankruptcy attorney, for each property that you own what would be in your financial best interest: to surrender the property to the creditor or to retain the property and continue payments. But be mindful that in Florida, you can only take one homestead exemption in bankruptcy.

If you are behind on your payments, this can be cured. You can pay the arrearages that you owe through your Chapter 13 Plan. Talk with a bankruptcy attorney today to decide if keeping both a homestead and rental property would be in your financial best interest.

Almost any debt that you owe when you file a Chapter 13 Bankruptcy or a Chapter 7 Bankruptcy can get discharged in a Florida bankruptcy. There are a few exceptions for debt that cannot be discharged. The most common examples of non-dischargeable debts are student loans, federal and state taxes, some government fines, alimony, child support, etc. A personal loan is dischargeable unless it is secured by collateral. In other words, if you secured the loan with your house or car or other item, then you must either pay the debt or surrender the item. If the price of the item does not cover the full debt, the deficiency amount would still be discharged. However, if the personal loan is unsecured, it can be totally dis-chargeable.

To discuss which loans will be dischargable and which will not, contact a Jacksonville Bankruptcy Lawyer to discuss your situation.

In these tough economic times, this is a common question clients ask their Jacksonville Bankruptcy Lawyer . In Florida, a Chapter 13 Bankruptcy can help a debtor keep their home or car if they are behind in their payments. In a Florida Chapter 13 Bankruptcy , the debtor repays the arrearages that they owe through a chapter 13 Plan that can span 3-5 years. This helps the debtor cure their default amount and save their home.

Also, when a debtor files a Chapter 13 Bankruptcy, an automatic stay is put into place that prohibits creditors from trying to collect from the debtor. The automatic stay will stop the foreclosure proceedings. If the debtor fulfills the chapter 13 Plan, the home loan will be brought current.

If you have a second mortgage and the home is worth less than the primary mortgage, a Chapter 13 Bankruptcy will strip the second or third mortgages and you will own nothing on these loans.

This is great news for those behind on their mortgage payments! Speak with a Jacksonville Bankruptcy Lawyer now to discuss how to save your home.

What is a bankruptcy trustee and what do they do? A Florida Bankruptcy trustee is appointed by the Court to represent and protect the creditors. The trustee will review your bankruptcy filings, look for signs of abuse, and often liquidate assets or collect on potential claims. The trustee is not a judge ands as such will not rule on motions or grant bankruptcy discharges. It the trustee's job to maximize recovery for the creditors. Your Jacksonville Bankruptcy Lawyer will know how to list assets in a way to maximize your exempt assets and allow you to keep the largest amount or most desirable property.

The client will be assigned a Florida trustee and will meet them for the first time at the 341 Meeting of the creditors

Contact a Jacksonville Bankruptcy Lawyer to discuss how to structure your bankruptcy to discuss your situation and achieve your goals.