Roman Pino Vs Bank of New York: Homeowners Lose A Battle Ground Case Against Bank Foreclosure Fraud.
This is not a good ruling for those who are fighting foreclosure. In this case Pino was trying to prove that the Bank of New York had filed fraudulent documents. So far, banks are normally able to guard themselves from punishment over filing fraudulent documents by voluntarily dismissing the case. The problem is the bank is then able to refile a foreclosure lawsuit at a later date.
Watching the video you can see that Pino’s representation makes valid points only to be shut down by the Florida supreme court. Orlando foreclosure lawyers took note that the Florida Supreme court either did not care or did not understand that banks are able to get away with commuting fraud. If they manage to get caught, they just need to take a voluntary dismissal and start over.
The case was unusual because the Supreme Court decided to pass judgment on the case even after Ice had negotiated a settlement with the bank that allowed his client to keep his house.
Florida law professors said the case, which was heard by the Supreme Court in May, was significant because it speaks to the integrity of Florida’s judiciary.
The 4th District Court of Appeal had previously agreed that a voluntary dismissal couldn’t be reversed, but said it wanted the high court to weigh in because “many, many mortgage foreclosures appear tainted with suspect documents.”
Banks warned of a “widespread financial crisis” if the Supreme Court rules in favor of Pino.
They argued banks will cut back on awarding home loans and be discouraged from filing legitimate claims if, when they find a paperwork error, they can’t voluntarily dismiss the case, correct the error and refile.
“With large numbers of defaulted loans in their portfolios, members of the Mortgage Bankers Association and Florida Bankers Association no doubt occasionally will make clerical errors, lose promissory notes, or discover other deficiencies in their foreclosure complaints that mandate correction in the interest of fairness,” the brief states.
Ice made headlines with the Pino case in 2010 when he was featured in a national magazine article about Florida’s so-called “foreclosure mills” and the discovery of allegedly fraudulent documents.
The robo-signing scandal was just breaking at the time, Florida’s foreclosure “rocket dockets” were full speed ahead, and David J. Stern’s Plantation-based firm was a foreclosure empire handling more than 100,000 cases statewide. It has since closed after losing most of its clients in the wake of the scandal.
Lenders halted home repossessions to revamp and rework cases. Beginning last year, foreclosures ramped up again.
“The banks won again, and like everything else in this state, we missed the chance to just say ‘stop,’” said St. Petersburg defense attorney Matt Weidner about the Pino ruling. “This is the final piece, we have legalized bank fraud and we now have a court system, an entire judicial system, that supports fraud.”
These were some of the most knowledgeable judges I have come across. They take the case and tear it down bit by bit.
It was ruled that there was no evidence that the trust authorized the foreclosure
“Eugene Dominko, the defendant in this mortgage foreclosure action, appeals a final summary judgment of foreclosure. Because Wells Fargo failed to establish that no answer which the defendant might file could present a genuine issue of material fact regarding whether Wells Fargo complied with the condition precedent of providing pre-suit notice of default, we reverse.
In February 2010, Wells Fargo filed a mortgage foreclosure complaint against the defendant. Wells Fargo alleged that it was the holder of the note and mortgage, that the defendant was in default under the loan, and that all conditions precedent to the acceleration of the note had occurred. The defendant did not file an answer to the complaint. Wells Fargo did not, however, move for a default. In April 2010, Wells Fargo filed a motion for summary judgment. The next month, Wells Fargo filed the original note, endorsed in blank. Wells
Fargo later filed an Amended Affidavit as to Amounts Due and Owing. The Amended Affidavit did not mention the conditions precedent.”
Below are a few quotes from the oral arguments that were interesting.
Center Judge: “If the trust doesn’t give Wells Fargo the right to litigate, their out of court.”
Below the judge is basically saying normally a mortgage default is very simple. If you get a loan from someone and you stop payment you don’t have much defense. He goes on to make the point that if the bank does not keep good public records of the loan, it complicates the procedure.
Center Judge: “Well you would agree with me that few cases are simpler than a mortgage foreclosure when you don’t layer in assignments and… If you have a loan from “Smith Mortage” to “Joe Blow”and Smith holds the paper and Joe Blow defaults, Joe Blows basically only defense is payment. It’s a very simple process, but when lenders bring upon themselves assignment upon assignment and they bring in entaties they call noimaniees and they don’t record assignments on the public records, and an assignment of a mortage is from a different party then from an assignment of a note, and you don’t have a trust instrument, it creates a problem.”
Zervas Foreclosure Lawyer: “And I respectfully submit Judge, that it wasn’t that difficult to do this one right. They knew they did not have an assignment of mortage, it was filed when they had none. They after aquired it, their charged to know that.”
Center Judge: “And see that the problem. Some borrowers counsel believe that the obligation is going to go away. In almost no circumstances that’s going to happen but it does have to be filed correctly.”
Zervas Foreclosure Lawyer: “It would be nice to know you are paying the right party.”
Below is a awkward excerpt between the judges and the Wells Fargo Lawyer.
(Happens at about 18:50 in the video)
Judge: Now it’s not hard to know, if you do mortgage foreclosures, that you need to comply with the acceleration clause…and that was never done by Wells Fargo, was it?
Well Fargo Lawyer: It wasn’t raised as an affirmative defense your honor-
Judge: No, no, wait- My question is Wells Fargo never complied with the acceleration clause, did they?
WFL: I can’t say because it wasn’t raised and I did not ask my client to provide me with a demand letter.
Judge: Now, hold on. Your firm specializes in mortage foreclosures, right?
WFL: Yes, your honor.
Judge: And every mortgage has an acceleration clause right?
WFL: Yes your honor.
Judge: And so before you file the mortgage you send out a certified mail letter saying: this is the date of the default, this is what you owe to bring it current, and you have 30 days or we are going to potentially file a foreclosure.
WFL: Absolutely.
Judge: That’s a condition precedence, and in your complaint you captioned a paragraph, either 4 or 5, saying bold print conditioned precedant…and you – I mean your firm, said that “all conditions precedent had be met.
WFL: Correct.
Judge: So as an officer of the court, the signatures on that complaint, represented that all conditions preceded had been met.
WFL: Correct.
Judge: And it wasn’t true, was it?
WFL: No it was true!
Judge: Oh it was true?
WFL: Aa and I can’t- I don’t-
Judge: -Do you have the acceleration letter?
WFL: I haven’t seen the letter-
Other judge: Are you really suggesting that you don’t know?
WFL: No no no I’m suggesting that we have when our client-
Other judge: Listen to me. Your not telling us that you don’t know whether or not the acceleration letter was sent or not. I hope your not saying that.
WFL: No I’m saying that when we get a referral it shows us on the information that we received from the client-
Other judge: You know it was not sent, don’t you?
WFL: …I’ve never in my 15 years, had a case where a demand letter was not sent.
Judge: Do you know, Judge Black has asked you, was it sent in this case or not? Yes, or no? That’s a very simple queston.
WFL: No I understand that, but I have not seen it because it wasn’t raised as an issue in the case.
Other Judge: So you saying that because it wasn’t raised you don’t know the answer to that question. That’s your answer?
WFL: I would say that I’ve relied on our business records, on the referral, that stated when the demand letter was expired. They told us the demand letter was sent and when it expired.
Judge to the left: On the standing issue, if I understnad one of this courts earlier verdicts in 2011 opitions, I think the options is what taylor said equitable standing. So as I go through the record on this case, the motions, the affidavids that were filed at some point, which document would you tell me to look for that would say that Wells Fargo was the owner and holder of this note on a date that precends the date of the complaint. Is there a document that I could look at, or a series of documents you would direct me to?
WFL: There is no specific document that says that.
Originally, Wells Fargo won in court the previous year but the foreclosure lawyer working for Zervas managed to overturn the initial ruling. It was proven in court that Wells Fargo didn’t establish that a answer by Zervases may have filed could be proven.
In short, this is a good ruling for any borrowers in trouble by unlawful banking practices.
The Florida House Civil Justice Subcommittee has approved a foreclosure reform bill, HB 87, sponsored by Rep. Kathleen Passidimo, R-Naples. The bill aims to streamline and expedite the foreclosure process. Among other things, it reduces the statute of limitations for deficiency judgments from five years to one year, and requires the lender in a foreclosure action to provide certain documents proving ownership of the loan before foreclosure proceedings begin.
The bill passed the committee by a vote of 10-3.
The subcommittee earlier approved, by unanimous votes, a bill (HB 179) that awards property owners in eminent domain suits the interest earned on deposits of the estimated property value made while litigation is pending, and another bill (HB 175) that clarified at what point a condominium comes into legal existence.
If you have been following any of our recent posts to the Foreclosure Blog on our website, TheFreedomLawFirm.com, you would be cognizant of the fact that lenders often times engage in unscrupulous practices when it comes to foreclosing on your Orlando property. One of the foremost ways in which banks try to gain an unfair advantage over the unsuspecting borrower/Defendant is by improperly serving them with service of process i.e. serving them via substitute service or publication when they should have been personally served. However, it still holds true that there are many instances in which the borrower is in fact properly served, and is now faced head on with a lawsuit.
Like most Americans, the average foreclosure defense client has never been sued before, and never imagined a time in their life in which they would be. So naturally, upon being served with a court issued Summons, many people become frightened and nervous at the thought of what could happen to them next. This immediate sense of fear and unrest becomes even more understandable when one reads the standard text that is used in your run-of-the-mill Florida Summons. Most Summons read: “A lawsuit has been filed against you. You have twenty (20) calendar days after this summons is served on you to file a written response to the attached Complaintin this Court. A phone call will not protect you; your written response, including the above case number and named parties, must be filed if you want the Court to hear your case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the Court. There are other legal requirements. You may want to call an attorney right away.If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book).” The grave tone of this document, coupled with the abrupt sense of shock that comes with being sued for the first time, leaves people feeling stressed and overwhelmed. However, this is not the time to panic, this is the time to call an experienced Orlando foreclosure defense attorney.
You may be thinking to yourself, well why do I need an attorney, can’t I just file my own written response like the Summons instructs me to do? Well yes, you could, but it is not advised. Unfortunately, because many people think they are doing the right thing by acquiescing to the demands of the court issued Summons, they quickly file their own written Answer without first seeking the knowledgeable advice of an experienced Orlando foreclosure attorney. While it is true that filing your own Answer is certainly better than the alternative, not filing anything at all (which almost always results in a Default Judgment being entered against the unresponsive party. See previous article “Haven’t Been Served? Then Motion to Quash”), it is still not the best option.
The best advice that I can give is that if you are ever served with a Summons stating that your Orlando property is being foreclosed on, do not file an answer right away, but at least first consider responding with a Motion to Dismiss the lawsuit. While a Motion to Dismiss is not technically a responsive pleading in its own right, the Florida Rules of Civil Procedure allow for a Defendant to file a Motion to Dismiss prior to filing an Answer, as long as that Motion to Dismiss is filed within the initial twenty (20) day time limit. Filing a Motion to Dismiss, rather than an Answer, can be more advantageous to your foreclosure defense for a number of different reasons. First, by filing an Answer, you are immediately submitting to that Court’s Jurisdiction over you without even contesting the point. Whereas if you file a Motion to Dismiss, you are not immediately submitting to the Court’s jurisdiction and in fact, can argue Lack of Jurisdiction in the Motion itself and possibly have the case dismissed on those grounds. Secondly, while the purpose of defending a foreclosure is not to unreasonably delay the judicial system, it is to force the bank to prove every last detail of their foreclosure claim against you, and one vehicle for accomplishing that end is the Motion to Dismiss. A Motion to Dismiss is an excellent tool for increasing the amount of time you are legally entitled to stay in your home. The reason this rings true is because a motion, in and of itself, is a party’s way of ensuring their arguments are heard by the Court. Simply put, when a Motion to Dismiss is filed, a Court cannot simply ignore it. The parties must coordinate a hearing date, and once set, the Defendant will have their day in court before a judge who will ultimately rule on the matter. If your motion is granted by the Judge, great! You’ve just forced the bank to correct their errors and refile if they wish to stake any claim to your home. Alternatively, if the Motion to Dismiss is denied then, at that point, the Defendant will have twenty (20) days to file an Answer and is essentially right back in the position they would have been had they just filed an Answer to begin with. But don’t be fooled, even if your Motion to Dismiss is denied, it is not a loss. Remember, that whole process, which is well within your legal rights, took time. Time you spent in your home. Time you would not have had, had you simply skipped right ahead and just filed your Answer from the very beginning.
When you are served with a mortgage foreclosure complaint, you should immediately seek out an experienced Orlando foreclosure defense attorney who will carefully review the documents, specifically examining the terms and conditions of the mortgage, any assignments of mortgage, and any endorsements on the promissory note. These specific factors, if reviewed by a keen eye, will enable a knowledgeable foreclosure attorney to determine if he can file a Motion to Dismiss for a multitude of reasons including Lack of Jurisdiction, Failure to Satisfy Conditions Precedent, A More Definite Statement, Lack of Standing, or Failure to State a Cause of Action. Remember, a Motion to Dismiss is your legal right, now invoke it.
I hope this article has helped you understand a facet of your legal defense strategy that you may have not been familiar with before, but should you have any other questions or are just seeking the advice of experienced and aggressive foreclosure defense attorneys, please call our knowledgeable team here at The Freedom Law Firm in Orlando. Call 407-883-2618, ANYTIME, DAY or NIGHT. We are here to help you stay in your home and fight for what’s yours!
Having personally represented hundreds and hundreds of clients facing foreclosure in Florida, I can attest to the fact that the lender will often times cut corners when it comes to foreclosing on your Orlando property. Whether it be losing vital documents, such as the Note, or Assignments of Mortgage, only to fraudulently execute these documents later on down the line when they know the original documents are no where to be found, or it is simply failing to provide the borrower with the proper written Notice of Default PRIOR to foreclosing on the Orlando property, as contractually required by many of the mortgages that the lender themselves draft (See previous blog post “CATCH paragraph 22″). Regardless of whether or not the lender failed to act with proper care when foreclosing on your Orlando property, when it is all said and done, the bank will do what they have to do to reclaim what they believe is “rightfully” theirs, even though they didn’t adhere to all of the proper procedures to accomplish that end.
One major way in which the lenders take the easy road to ownership of your home, is by failing to properly serve the borrower with notice of the foreclosure action against them in the first place. The legal term is “Service of Process.” However, you may better recognize and understand the meaning of this phrase by simply stating what it is that is supposed to occur, but often times does not. When a lender and/or bank wants to foreclose on a property, they file a complaint with the Clerk of Court located in the same county as the subject property. Next, they are to hire a “Process Server”, which is often times a plain clothed individual licensed to serve complaints (Summons) on named Defendants for a living. This process server is supposed to personally serve this initial pleading directly to the named Defendant at his or her usual place of abode. Once served, this Summons acts to notify the named individual of the pending legal action being taken against them. Once served, the Defendant usually has twenty (20) days to file a written response, either by way of an answer or by filing a Motion to Dismiss. If the complaint is not responded to within the usual twenty (20) day limit, a Default Judgment is likely to be entered against them. For the Defendant this is EXTREMELY bad. A default Judgment is essentially the Defendant forfeiting their right to defend against the relief sought by the Plaintiff. Although a Default Judgment may be revoked by filing a Motion to Set Aside Default, this favorable outcome is certainly not guaranteed, and at the very least throws the proverbial monkey wrench into your foreclosure defense strategy.
What we are noticing more and more in our foreclosure defense cases, is the scenario where the Defendant is served via Substitute Service or Publication (posting in a newspaper) when they should have been personally served. According to Florida Statute Section 48.031 (1)(a) substitute service may be made by leaving the copies of the complaint at the Defendant’s usual place of abode with any person residing therein who is 15 years of age or older and informing the individual of their contents. Constructive service is typically allowed only when the location of the named Defendant cannot be had. When these alternative forms of process are utilized, the Process Server typically signs an Affidavit swearing that the Defendant’s location could not be discovered through diligent search and inquiry and that is why these other forms of Service had to be utilized. However, these Affidavits often contain boilerplate language stating there was only a SINGLE attempt made to locate Defendant. Wait, sounds kind of fishy right? A “diligent search and inquiry” was made, yet only a SINGLE attempt was made to locate the Defendant. If that doesn’t sound very diligent to you, that’s because it’s not! Basically the banks want to “serve” you without actually serving you. Don’t let the banks slip one by you, because if you do, you may forfeit your right to defend your property i.e. a default judgment being enetered against you.
If a default has been entered against you, but you do not recall ever being served papers, you need to file a Motion to Quash Service of Process for Lack of Diligent Search and Inquiry and get that Default thrown out. This motion, if filed by a knowledgeable Orlando foreclosure defense attorney, can nullify the banks cunning attempt to have a default discretely entered against you. A Motion to Quash lays out all the pertinent facts necessary in explaining to the court why the Plaintiff’s Constructive Service should be void. If argued correctly, the motion should clearly demonstrate : 1) that the Defendant was never Served, and therefore had no idea they were even required to respond 2) that the lender did not conduct a “diligent search and inquiry” by making a single “attempt” to locate Defendant 3) that lender had reason to know where Defendant was actually located 4) that had Plaintiff actually conducted a “diligent search and inquiry” that Defendant’s location could have been readily ascertained and 5) that because Defendant’s location could have been ascertained, that Plaintiff should have been personally served with process.
If you believe you were not properly served, and as a result had a Default Judgment entered against you, now is the time to contact an experienced and aggressive foreclosure defense attorney in Orlando. The right attorney not only knows when to file a Motion to Quash, but how to effectively assert the facts in a manner which best increases your chances of having the service quashed, and the default set aside. Call the experienced Orlando foreclosure attorneys at The Freedom Law Firm - we’re here to help you stay in your Orlando home! Call any time, day or night. We have the experience and knowledge needed to answer your Florida foreclosure questions. 407-883-2618.
Over the last few years, there has been a tidal wave of Florida mortgage foreclosure cases crashing over this country’s court system. Due to the massive influx of foreclosure cases in recent years, lenders, i.e. the banks, have had a hard time keeping pace and as a result, have been getting sloppy with their paperwork. As is typically the case, by the time your Orlando, Florida property has been foreclosed on, the mortgage and note that you signed years earlier, has since changed hands several different times. It is not uncommon for a mortgage and its accompanying promissory note to be transferred, assigned or endorsed to three, four or even five different entities by the time a lawsuit has been filed against the borrower. These different entities are typically comprised of other banks acting as servicers of the mortgage. By the time the borrower is officially served with the complaint informing them that they are being foreclosed on, the borrower does not even recognize the entity that is bringing suit against them. This unfamiliarity with the Plaintiff is due to the aforementioned transfers and assignments of the mortgage and note that almost always take place between the time the original loan is taken out, and the point at which the Defendant, YOU the Borrower, is served.
The way the situation typically plays out is the borrower signs the mortgage contract with the Original Lender, but now someone else is doing the suing. If you have been in this situation, you may have caught yourself thinking, wait, this doesn’t seem right. If so, I am here to tell you that you are completely justified in your suspicions. This situation is all too familiar in today’s foreclosure environment. While the transfer, assignment or endorsement of the rights to a mortgage and/or note are not in and of themselves prohibited; their right to legally enforce those newly acquired rights hinges on whether they have the proper paperwork and documentation to back it up. If the plaintiff/lender cannot produce the required documentation proving the legal chain of ownership of the mortgage and note vests in them, there is a good chance they lack the proper standing and thus, cannot foreclose on your Orlando property.
Any time you are being sued in foreclosure in Orlando, Florida, it is imperative that you first check to see if the entity that is attempting to foreclose on YOUR property, is the original lender that you entered the mortgage agreement with. If it is not, there may be a standing issue. First, demand that the Plaintiff produce documentation such as an assignment of mortgage or a note with clear endorsements proving that the legal right to enforce the promissory note lies with the Plaintiff. If after this demand, it is clear that the Plaintiff has standing, well then great! You’ve forced the bank to carry their burden and prove they are rightfully and legally collecting on their investment. If however, the bank has gotten sloppy with their filings and paperwork over the years and as a result, no longer has the proof to establish true ownership of the mortgage and note, then the Plaintiff likely lacks standing and you have a very good chance of winning your Orlando foreclosure case at Final Summary Judgment. This is why it is so important that you “get to know your lender”.
It is vital that you seek the counsel of experienced foreclosure defense attorneys in Orlando that can identify and understand these little nuances. For it is these little nuances in the law that often make or break your case, and could mean the difference in saving your home, or losing it to foreclosure. For any questions concerning the “failure to establish standing ” argument or any other matters related to your foreclosure case, call The Freedom Law Firm and speak to one of our experienced Orlando foreclosure attorneys today! We’re here to help, just call 407-883-2618.
According to an official announcement that was made by Florida’s Attorney General Pam Bondi on September 24, 2012, over 167,000 Florida borrowers who lost their home to foreclosure between January 1, 2008 and December 31, 2011, may be entitled to their piece of a $1.5 BILLION pie. The $1.5 billion pie is the bi-product of a $25 billion national mortgage foreclosure fraud settlement that was reached with five of America’s largest servicers of mortgage loans including: Bank of America, Wells Fargo, JP Morgan Chase, Citi and GMAC/Ally. These banks comprised a majority of the servicers of the mortgage loans that were the subject of this massive fraud investigation that was spearheaded by the Federal Government along with the attorney generals of 49 states, plus the District of Columbia.
In April of 2012, the settlement went into effect and it allotted over $1.5 billion dollars made available to over 2 million borrowers throughout the country who fell victim to this fraud and had their foreclosure serviced by one of the five parties named in the settlement. Floridians were specifically earmarked for $170 million dollars of this massive payout. The Federal Government now wants to turn that money over to you, the victims of this mass fraud. However, there is a catch. Although the money is there for the taking, you cannot just sit back and wait for the money to roll in. You must TAKE it. Forms were previously sent to all borrowers who may potentially have a claim and those forms MUST BE SUBMITTED BY 5 pm on JANUARY 18, 2013. Yes, you read that right, the deadline is tomorrow! You must take action now to determine if you have a claim to that large sum, which keep in mind, is just sitting there for the taking. Over the last several months, documentation should have been provided to those who may be qualified. Specifically, the national settlement administrator sent out notification packets to all eligible borrowers across the nation. As it pertains to potential Florida borrowers specifically, packets were sent out containing a letter from Florida’s Attorney General, a claim form, instructions and answers to commonly asked questions, from the time the settlement was reached back in April through October 12. The exact amount for the payments made to each borrower have not been predetermined and will depend solely on how many borrowers actually assert their right to the proceeds and submit these forms by January 18, 2013. Thus, if you do not elect to act now, your money will be going to someone that does.
If you received these forms, it is strongly advised that you fill them out now and submit them by tomorrow, January 18, 2013. If you remember receiving these documents but now you can’t find them, do not worry, you can file these forms online at www.nationalmortgagesettlement.com. If however, you are not certain if you even qualify, remember, it can’t hurt to ask. If you fall into the latter group and have questions or need help filing your claim, you should contact the settlement administrator immediately, toll-free, at 1-866-430-8358, or send questions by email to administrator@nationalmortgagesettlement.com.
If you lost your Florida home to foreclosure between January 1, 2008 and December 31, 2011, act now to see if you have any money waiting with your name on it! DO NOT MISS THE DEADLINE!! In these tough economic times, money can be hard to come by. You should take full advantage of any and all financial support that may be owed to you. During your Orlando, Florida foreclosure process, the bank desperately wanted your money, now is your chance to get some of it back. As of January 16, 2013, less than half of the estimated 167,000 people in Florida eligible for the $170 million payout have responded. Act now, or someone else will!
For any questions you may have concerning other possible rights you may be entitled to or for any help with your mortgage foreclosure, call our experienced Legal Team here at The Freedom Law Firm today. Our Orlando foreclosure defense attorneys are here to HELP defend your home! The Consultation is FREE, Just Call! 407-883-2618
Often times when borrowers are seeking a mortgage loan from a bank, they are so happy and excited at the thought of buying their first home or investment property, that they don’t take the time to truly consider what happens if, down the road, a foreclosure were to take place. Now this is a natural thought process, because if from the outset people believed there was a good chance they would wind up in foreclosure, they likely would not have entered the agreement in the first place. Because of this overwhelming excitement, borrowers tend to quickly read through their often times 20 plus page mortgage agreement without truly appreciating the little clauses that govern what procedures must be followed in case payments cannot be made and the lender (bank) does try to enforce a foreclosure on the Orlando property. Two of the sneaky paragraphs that are typically overlooked, or even if read are not fully comprehended as to their effects, are paragraphs 22 and 15. These paragraphs, aside from the occasional exception, are boilerplate language included in almost every Fannie Mae/Freddie Mac federally underwritten mortgage. While the descriptor “boilerplate” typically lends itself to meaning unimportant, knowing what these paragraphs mean, and in turn how to enforce them, can mean the difference in keeping your Orlando home that’s being foreclosed on or losing it at a judicial sale.
First, Paragraph 22 is a clause in most mortgage agreements which requires the lender to provide a Notice of Default and/or Notice of Acceleration to the borrower (You!) PRIOR to accelerating the loan i.e. placing the Orlando property into foreclosure. A mortgage is a contract that both the borrower and the lender entered into. Further, a mortgage is a contract that the lender themselves drafted. Therefore, this notice is a contractual obligation that the borrower must comply with, or else they are in breach of the very agreement they drafted. Paragraph 22 specifically states in pertinent part, “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument… The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.”
Paragraph 15, which is also included in most mortgage agreements, is even more specific, and takes the notice requirements that lender must abide by even one step further. Paragraph 15 requires that any notices required by the mortgage agreement, i.e. the aforementioned Notice of Default, must not only be communicated to the borrower PRIOR to accelerating the loan, but that the notice MUST be provided IN WRITING to the borrower. Paragraph 15 specifically states in pertinent part, “All notices given by Borrower or Lender in connection with this Security Instrument must be in writing.”
So what does all of this really mean? It means, that if the Lender has not provided you the borrower WRITTEN notice of the default and/or acceleration PRIOR to bringing the Florida foreclosure action, then the lender has FAILED to satisfy all of the conditions precedent to bringing a foreclosure action in Florida, as specifically required in the mortgage contract that the lender themselves drafted. Not only must the lender prove that they provided a written notice to the borrower PRIOR to foreclosure, but that the written notice was fully adequate, in that it clearly and specifically listed 1) the default 2) the actions required to cure the default 3) a date by which the cure must be made 4) that any failure to cure the default may result in acceleration of the loan, foreclosure and judicial sale of the property. It’s not good enough for the lender to simply provide an affidavit swearing that they provided a written notice; the notice must be made prior to the acceleration AND in compliance with the specific requirements stipulated to in the agreement they drafted.
Knowing how to look for these requirements, comprehend what they mean, and what tactics to employ to ensure they are adhered to, can mean all the difference at a Final Summary Judgment where the judge is determining whether to sell the home at judicial sale or find for the borrower because the lender failed to satisfy all of the conditions precedent listed in the mortgage contract. Know your rights, know how to enforce them and save your home. Call our experienced Orlando foreclosure lawyers here at The Freedom Law Firm. We want to help you with any questions you may have concerning your Orlando foreclosure. More importantly, we want to help you stay in your home! Call anytime, day or night! 407-883-2618.
When it comes to effectively defending against your Florida foreclosure suit, motions play a pivotal role in insuring that the lender is not making any fraudulent claims or offering any fraudulent documents to the court. While these motions are taking place, they are simultaneously keeping you in your Orlando home as long as possible, which often times is the ultimate goal when defending a foreclosure suit. STAYING IN YOUR HOME. For this very reason, it is important to know how motions work and just when to use them.
A motion is basically your way of asking the court to do something – to take some form of action. Motions are your vehicle for being “heard” by the court. Because motions (formal requests for some sort of action by the court), are filed with the court, they act as a way of forcing the judge, as well as the lender, to at least listen to what you are asking for and respond accordingly. Motions are the channels through which the court conducts its work. The ability to file a motion and be heard on that issue is your right as a party to the suit, and it is one you should fully invoke. It is never a good idea to just sit back and do nothing, and motions are an effective way of forcing the lender to properly carry out the foreclosure process while also taking assertive steps towards keeping you, the borrower, in your Orlando home for as long as possible, if not permanently.
Motions can come in many different forms, and at many different times throughout a Florida foreclosure suit. Certain motions typically come at the outset of a suit, such as a Motion to Dismiss, while others comes towards the end, like a Motion to Set Aside Final Summary Judgment. No matter what type of motion you file or when you file it, think of a motion as a valuable tool for making the lender legally uphold their burden of enforcing the foreclosure according to legal protocol. Remember, the Florida foreclosure process can be a long and expensive one for both sides. The longer you can keep your Orlando property, the more likely it becomes that the bank will be willing to reach some sort of amicable resolution, versus dragging the foreclosure out any longer. If you are involved in a foreclosure, expect to see motions. Even if you do not file any motions yourself, you will likely be receiving them from the lender’s side. Do not make the mistake of simply disregarding these as superfluous paperwork. Each received motion should be taken seriously and treated with great respect. Be sure to read and analyze the motion carefully, to understand exactly what the other side is looking for. Once it is is determined what the “moving” party is seeking, it’s time to develop a game plan and file a response accordingly. Once this has occurred, a hearing date will be set to determine a ruling on the action being sought before a judge. Hence, this is why a motion is a party’s best tool for insuring their concerns will be “heard”. You may not always win the hearing but least you will get a chance to talk things out and the judge can become a little more familiar with who you are as a party.
Knowing how motions work and when to file them are vitally important to keeping you in your Orlando home. The more time you can buy in your property, the more time you have to plan and formulate a resolution. Motions can be an invaluable tool when defending against a foreclosure in Florida, BUT ONLY when you understand the legal intricacies of all the various motions and when to employ them.
This is why it is important to seek out experienced Orlando Foreclosure Attorneys who can help you with these questions and help you implement the best strategy for your foreclosure defense. CALL our experienced Legal Team here at The Freedom Law Firm today. The Consultation is FREE, Just Call! 407-883-2618
In November, Florida led the country in foreclosure activity for the third straight month, with one in every 304 housing units reporting a foreclosure filing last month. In fact, Florida is even starting to earn a nickname as the “foreclosure capital of America”. As we roll into the New Year, this distinction will likely dampen the momentum of the real estate recovery in our state.
Foreclosure filings in Florida (including default notices, scheduled auctions, and bank repossessions) rose 20 percent in November of 2012 from November of last year and also increased 3 percent since October of 2012. Meanwhile, the nation as a whole seems to be in recovery, as US foreclosure activity dropped by 19 percent in November of 2012 when compared to November of 2011.
Another shocking statistic – among the 10 metropolitan areas with the highest foreclosure rates, seven are in Florida. With the Space Shuttle program closing, the Space Coast area of Titusville-Melbourne-Palm Bay has had a rough year, ranking highest with a foreclosure rate of one in every 158 housing units.
The market continues to be challenging Florida and it’s important to know that if you’re Orlando home is at risk for foreclosure, you are not alone. As you can see, many Florida homeowners are experiencing foreclosure. However, you do have options available to you that can help slow down and even stop the Florida foreclosure process if you contact an Orlando foreclosure attorney in time. Call a foreclosure defense lawyer at The Freedom Law Firm in Orlando today at 407-883-2618. We will provide you with a free consultation and we’ll do all we can to help you stay in your home!
