Revisiting: THE AMENDED COMPLAINT – I’VE ALREADY BEEN SERVED ONE COMPLAINT, SO WHY’S THE BANK FILING ANOTHER?

amendend complaint

 

An Old Blog Worth Taking a Second Look At

THE AMENDED COMPLAINT – I’VE ALREADY BEEN SERVED ONE COMPLAINT, SO WHY’S THE BANK FILING ANOTHER?

It is crucial to your foreclosure defense to know exactly what an Amended Complaint is, what effect it can have on your foreclosure case and how to properly respond once it is filed. A foreclosure action will begin with the Bank’s filing of a Foreclosure Complaint. That Complaint will lay out exactly what the Bank is suing you for and the general basis for their argument. As is most often times the case, the Complaint will state something to the effect of: The Defendant/Borrower executed a Mortgage and Promissory Note; the Borrower has since defaulted on their payments; now the bank is foreclosing on the property as a result. Once filed, the bank has a legal obligation to serve this Complaint upon any named Defendants; in this case, YOU, the borrower.

However, just because the Complaint has been filed once before, doesn’t mean that the Bank can’t try to change their argument once the lawsuit has begun. The way the banks implement this change to their argument is via the Amended Complaint. Knowing how to recognize  this change and how to properly respond,can literally mean the difference in losing your home at trial or possibly having your case dismissed altogether; and at the very least, adding several months and in many cases, years to your foreclosure defense. And any time added to your defense means more time in YOUR home!

Most of the time when the banks file an Amended Complaint, it is due to the fact that they’ve made some error in the filing of their action and now they are trying to correct that problem before the case is dismissed or they lose at trial. The Florida Rules of Civil Procedure state in RULE 1.190 AMENDED AND SUPPLEMENTAL PLEADINGS (a) Amendments, “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party.” What this means is that if the borrower/Defendant has only filed a Motion to Dismiss, which is considered by law a “non-responsive” pleading, then the Plaintiff, as a matter of course, may file an amended complaint once, without leave of court. However, if the Defendant has already filed an Answer, which is typically bad for your defense (because you’ve now acquiesced to the courts jurisdiction and no longer have the ability to have the case dismissed), and it’s been more than 20 days since the pleading was served, the Plaintiff can only file an Amended Complaint if the court grants leave to do so.

     Thus, if you’ve filed an Answer and the Bank subsequently files an Amended Complaint, you can move to strike the amended complaint if it has been more than 20 days since their original complaint was filed and they did not move for leave to amend their complaint. Secondly, if you have filed an answer, which means you’ve waived your chance of having the case dismissed, and the bank then obtains leave to amend, YOU SHOULD FILE A MOTION TO DISMISS THE AMENDED COMPLAINT RIGHT AWAY! By filing this Motion to Dismiss, you not only have recaptured the ability to have the case dismissed, you have reopened the pleadings and therefore the case is no longer at issue and the judge does not have the discretion to set your case for trial. In this scenario, by filing their Amended Complaint, the bank has given your foreclosure case new life; a second chance to have the case possibly dismissed and at the very least, the opportunity to add several months, if not years, to your foreclosure defense. You CANNOT let opportunities like this pass by.

For the aforementioned reasons, it is vital that you consult with a knowledgeable foreclosure defense attorney who withholds the legal expertise to not only recognize when an amended complaint has been filed, but why the bank filed it to begin with and how to then properly respond. While you may be reading this and wondering what all of this legal jargon really means to your case, being able to discern these rules and respond effectively can mean the difference in keeping your home for years to come or losing it within months at trial. For free advice and further explanation of Amended Complaints or any other questions you may have concerning your foreclosure defense, please contact THE FREEDOM LAW FIRM and their team of EXPERIENCED and AGGRESSIVE FORECLOSURE DEFENSE ATTORNEYS AND PARALEGALS. CALL FREE ANYTIME, DAY OR NIGHT AT 407-883-2618.

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How To Build Your Case Against the Bank: Discovery!

how-to-build-your-case-against-the-bank-discoveryHOW TO BUILD YOUR CASE AGAINST THE BANK: DISCOVERY!
 

Discovery is an invaluable weapon in the fight to defend your home against the banks. You may be curious as to just what discovery is and why it’s so vital to the defense of your foreclosure. Discovery is an umbrella term that describes the process of obtaining information from the other party in a lawsuit, which in turn helps you formulate your defenses and build the strength of your case prior to any trial or final summary judgment. Think about it in this context, if you are being sued by the bank and they are alleging that they are entitled to foreclose on your home, you must find out exactly what evidence, if any,  they are basing these allegations on. Such as, does this new bank, whom I’ve never directly signed a contract with, even have the right to foreclose on MY home in the first place? This is a GREAT question, and to answer that you’ll want to see the Promissory Note to see if there’s any endorsements or copies of any Assignments of Mortgage. Further, if the bank is stating that you owe hundreds of thousands of dollars, it’s only logical to require them to provide an itemized accounting/validation of that debt.

In order for parties to obtain these vital bits of information needed to properly defend a foreclosure, the Florida Rules of Civil Procedure have set forth a means by which to accomplish this end, and those legal avenues are specifically outlined in Rules 1.340, 1.350 and 1.370. Namely, the three different types of discovery set forth in the aforementioned rules, are Interrogatories, Requests for Production and Requests for Admissions. First, Interrogatories are simply questions you ask the bank, such as, “Has the subject Mortgage ever been assigned to any other person or entity? If so, please specifically identify said person/entity.” Second, Requests for Admissions are exactly what they sound like, you’re asking the other party to admit or deny certain facts that are pertinent to your case, such as, “Admit that Plaintiff does NOT have the legal right to foreclose on my client.” As you can see, if Plaintiff admits this, or fails to respond within 30 days (as set forth by The Florida Rules of Civil Procedure), it can build crucial evidence which fortifies the strength of your defense. Lastly, Requests for Production are a means to obtain actual documents from the other party, such as the Mortgage and Note, for which they are basing their claims. While it may seem simple enough, it truly takes a sophisticated and experienced attorney to ask the right questions because there is a limit to the amount of Admissions and Interrogatories you can seek, and that number is 30. Additionally, if the Bank refuses to respond to your discovery requests or if their responses are less than satisfactory (to put it politely) you can file a Motion to Compel and move the Court to require the banks to provide the information you seek.

Not only is discovery important because it enables the parties to properly develop their arguments, it can also be a strategic tool in precluding the bank from getting a Final Judgment (read: losing your home) entered against YOU the borrower. Florida case law states that Courts should NOT enter Final Judgments when the discovery process is still on going. Specifically, “Summary judgment should not be granted until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists. Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987). As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery. Singer; Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990).” Thus, if you’ve filed discovery and that discovery has not been properly responded to by the banks, then the Courts should NOT enter Final Judgment against you!

As you can see, if you hire an experienced and sophisticated foreclosure defense attorney with the proper legal acumen to know precisely which questions to ask and when to ask them, discovery can pose a dual threat in the fight against the banks! Call our team of EXPERIENCED and AGGRESSIVE foreclosure defense attorneys here at The Freedom Law Firm. Our main objective is to FIGHT to keep you in YOUR home. CALL anytime DAY or NIGHT for FREE advice on discovery or any other questions you may have concerning your foreclosure defense. 407-883-2618.

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An Important Topic Worth Reiterating

you have just been served - choose next actions carefullyAn Important Topic Worth Reiterating

A little over a year ago we posted an incredibly informative and important blog entitled: You’ve Just Been Served: CHOOSE YOUR NEXT ACTIONS CAREFULLY. In the 13 months following this blog, we’ve still noticed an alarmingly high number of clients that come through our doors wherein they’ve been served and either failed to file any paperwork whatsoever, or thought it best that they file their own paperwork and then seek out the advice of experienced counsel after the fact. Both of these options are strongly discouraged and can significantly hinder your foreclosure defense which ultimately results in less time in your home! So for those reasons, please take a few minutes and re-read the below blog. Doing so can mean the difference in saving your home and losing it to the bank within months.

You’ve Just Been Served: CHOOSE YOUR NEXT ACTIONS CAREFULLY

Ok, so your finances have taken a hit and as a result, you haven’t made your mortgage payments in months, if not years. You know you’re probably going in to foreclosure any day now but for some reason the bank just hasn’t done anything about it. You begin to wonder if the bank is ever going to make good on their threatening letters and then…… boom! The process server knocks on your door and that lingering dread becomes a reality. It’s official, the foreclosure that has been looming over your whole life has come to your doorsteps. What do you do now?

Having had much experience in the world of Florida foreclosure defense, I’ve seen thousands of people take one of three main courses of action. First, and probably the most detrimental to your foreclosure defense, is the all too common, simply do nothing approach. Many times when people are served, they simply do nothing about it whatsoever. Now this may be for a myriad of reasons, whether it be that they just do not want to face the realization that they are in fact being foreclosed on and subconsciously just want it to go away, so they avoid facing the problem altogether. Others may just not have the requisite funds to hire an experienced foreclosure attorney and simply do not understand the legal ramifications of failing to respond . Whatever the case may be, when an individual is served with a Summons and copy of the Foreclosure Complaint, they will generally have 20 days to file a written response with the Court. Despite this ticking time bomb, many clients will let the time expire on their response without having filed a thing. When this occurs, the bank’s attorneys will quickly move for default and the courts will have no choice but to enter that default against them. A default is the legal equivalent of waiving the white flag in the war against the bank. A default equates to waiving any rights you may have had to defend your foreclosure. Although defaults can be set aside, they inflict great damage to the defense of your foreclosure and put your foreclosure defense behind the proverbial 8 ball before it has even begun.

The second option is when borrowers, or even sometimes  inexperienced attorneys, think they are doing the right thing and file an answer. Although filing an answer is better than failing to file anything at all, filing an answer right from the outset can be highly detrimental to your foreclosure defense. This is true for several glaring reasons, although shockingly, many attorneys still seem to be unaware of this. By filing an answer, you immediately acquiesce to the Court’s jurisdiction and waive any opportunity to get the case dismissed. Once an Answer is filed, you can not retroactively correct your mistake by filing a subsequent Motion to Dismiss, even if there are sufficient grounds for such a motion. No, you’ve waived that right by filing your answer and any subsequent motions to dismiss will be deemed moot by the Court. Secondly, not only have you waived your right to possibly have the case dismissed, you’ve also shaved several months off of your foreclosure defense and exposed your case to possibly being set for trial by the judge. And time lost on your defense equates to less time spent in your home. This is a commodity you cannot afford to waste.

What an experienced and knowledgeable attorney would advise you do is upon being served, immediately review the Complaint, and documents attached, and formulate your basis for filing a motion to Dismiss the case. You can move to dismiss the foreclosure action for several reasons including, but not limited to: lack of jurisdiction, lack of standing, and failure to satisfy conditions precedent. Once filed, the case is not “at issue” (until the Motion to Dismiss is ordered on) and therefore the judge is legally precluded from setting the case for trial, which is a good thing for the borrower. Further, once filed, the motion must be set for hearing and then heard. This can take several months and even if your motion is ultimately denied, you can always file your answer at that point.

For these clear reasons, it is important to know just what actions one should take upon being served with a Foreclosure Complaint. Filing a Motion to Dismiss is more than likely your best option in that it can prevent the judge from setting your case for trial, can add months to your foreclosure defense and can preserve your right to have the case possibly dismissed. For more free advice on Motions to Dismiss or any other concerns you may have regarding any facet of your foreclosure defense, call the experienced team of Legal Experts at The Freedom Law Firm. Call any time DAY OR NIGHT, absolutely FREE of charge. We’re  here to help you stay in your home! 407-883-2618

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Moments of Encouragement: Don’t Stop Fighting.

Don't Stop Fighting

Often times, the foreclosure process can be a time of overwhelming stress and doubt and this is never more true than when it comes to loan modification. It may seem like no matter how many times you call the lender and no matter how many documents you gather pursuant to their specific requests, that the lender just will not work with you. While this discouragement is understandable, we wanted to take a moment to highlight a recent success story that proves that with enough hard work and prayer, things can turn around.

Recently, we had a client that attempted loan mod on multiple occasions only to be denied every time. However, this client did not give up and while we continued to zealously defend the case and prevent the bank from stealing the home, this client continued trudging ahead don the path of loan modification. After almost a year of defending this particular foreclosure, the client was able to use this time to work directly with their lender and obtain a permanent loan modification in which the principal was reduced by over $200,000. This means the client was able to not only stay in their home, which is always the ultimate goal, but save over $200,000 in the process. While loan modifications like this are far from guaranteed, it is instances like these highlight the importance of you, the client, actively working on loan modification with the bank, while we diligently fight their attorneys in the courtroom.

 

If at any time you have a pressing question pertaining to your case, please feel free to call me at 407-883-2618. I am ALWAYS here to help you and your family! Here at The Freedom Law Firm, our main objective is to keep you and your families in YOUR home. In order to do that, we work tirelessly to fight off the banks so that both parties can reach an amicable resolution. A resolution that ends with you staying in your property! Call anytime, day or night.

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When a Different Lender Tries to Foreclose…

when a different lender tries to forecloseMERS or MERSCORP: The Name Says It All!

One of the strongest arguments a foreclosure defense attorney can raise is Plaintiff’s lack of Standing. Specifically, standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. Without standing, a Bank is precluded from suing you for foreclose and as a result, is not entitled to take YOUR home. One way to prove a Plaintiff does not possess the requisite legal standing is to show a break in the chain of title. For example, you, the borrower, originally took out your loan with Bank “A”, but now, 5 years later Bank “C” is filing a foreclosure against you. Naturally you may be thinking, who heck is Bank “C” and how did they get their hands on my loan? That is a great question. There MUST be a legal nexus between the two. In order to lawfully transfer the interest in a loan, the bank generally does one of two things: 1) the original mortgagee may endorse the Note to a third party or 2) they may assign the mortgage to a third party. It is the latter that we will be focusing on here today. When assigning a mortgage, most lenders use an entity called Mortgage Electronic Registration Systems, Inc. or MERS for short. MERS acts as a “Nominee” for the lender and typically handles the assignments of mortgage from the original lender to a third party.

However, there’s just one small problem that arises when you see that your mortgage has allegedly been assigned by “MERS” after 2003;
in 2003, Mortgage Electronic Registration Systems, Inc., otherwise known as MERS, officially changed their trademark name to MERSCORP, INC. with the Commissioner of Patents and Trademarks. Thus, when you see lets say a 2011 Assignment from MERS, as Nominee for the Original Lender, to the purported Plaintiff, it makes you wonder just how “MERS” could do this when they haven’t technically existed since 2003. A good foreclosure defense attorney should immediately argue that in 2011, when the purported assignment took place, that Mortgage Electronic Registration Systems, Inc. did not exist and therefore could not have legally assigned the subject mortgage to Plaintiff. If the transfer is invalid, then the Plaintiff does NOT possess the requisite legal standing and should be forbidden from foreclosing on your home.

Should you or anyone you know think that your case involves a potentially illegal transfer from MERS, then do not hesitate to contact our experienced team here at The Freedom Law Firm. 407-883-2618 Call Anytime DAY or NIGHT!

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THE FREEDOM LAW FIRM – The Name Says It All

bald eagle Freedom Law Firm

THE FREEDOM LAW FIRM – The Name Says It All

The Freedom Law Firm, it’s a strong name with an even stronger meaning. However, our firm didn’t choose our name simply because it’s catchy or that we wanted to plaster it across some advertising billboard. We chose the name because we really do want to provide you FREEDOM. Freedom from the bank calling or writing you threatening letters reminding you how much you owe them. Freedom in the form of a loan modification that you obtained which helps you to pay a reasonable monthly mortgage and keep your home, and still have some money left over to spend on your family and other necessities. Last but not least, freedom from the fear and stress of constantly worrying that the bank can swoop in at anytime and leave you and your family on the street.

 

Our goal is to strategically and aggressively advocate for your rights in order to provide you these Freedoms, both financial and emotional. Every month we strive to achieve this goal in one form or another by having cases dismissed, final judgments defeated and deficiency waivers obtained. Remember while, we aggressively fight the banks’ attorneys and defend your case in the Courtroom, it is important that you are taking proactive steps towards keeping your home as well!

 

i)               We are defending your foreclosure as aggressively as possible, but it is your responsibility to negotiate your loan modification or reinstatement.

Although we do not negotiate with the banks and do not do loan modifications, we will answer ALL of your questions to help you reach your goal!

If you desire a loan modification or reinstatement of your loan,

then you need to submit a Loan Modification Application immediately,

if you have not already done so.

There are also loan modification companies that can help you complete the loan modification process. Florida Law states that a NON-lawyer may NOT accept an up-front fee unless the loan modification is successful.

You do NOT need a lawyer to successfully obtain a loan modification!

Defending foreclosure requires special knowledge of a plethora of laws, however, negotiating a loan modifications is primarily administrative in substance.

 

ii)             If you have decided that you do not want to keep the property,

then your options are either i) short sale ii) deed in lieu OR iii) cash for keys

 

iii)            If you think you have enough money to negotiate a reinstatement, or

if you are ready for mediation, call us immediately!

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DO NOT LET THE COURTS SHAVE VALUABLE TIME OFF YOUR CASE

don't let the courts shave time off your foreclosure defense

DO NOT LET THE COURTS SHAVE VALUABLE TIME OFF YOUR CASE
So I was sitting in Court today at yet another exciting Case Management Conference (interpret as: a house-keeping hearing where the Court will do anything within its power to tie up any loose ends and push your case to trial) when something subtle, yet crucial to a foreclosure defense case occurred. However, before I delve into what transpired, let me start by giving some background info on what typically takes place at these ever-present CMC hearings. Often times, the Order setting the Case Management Conference will state something to the effect of, “ALL pending motions shall be heard at Case Management Conference.” What this means simply is that if you have any outstanding motions, you must be prepared to argue each and every one of them at that CMC. Why would the Court add this language you ask? It’s simple, that way the Court may dispose of any procedural hurdles that may prevent the Court from setting the case for trial. One example of such a hurdle would be a Motion to Dismiss (read our prior blogs on when a case is “At Issue”).  If there’s a pending Motion to Dismiss, the case is clearly not “at issue” under FL Rule of Civil Procedure 1.440 and the Court is precluded from setting the case for trial, despite their most zealous efforts. The reason it’s important to delay a trial is due to the fact that the sooner a trial is set, the less time you could potentially have left in YOUR home. In other words, the longer we can prevent trials, the more guaranteed time you have left in YOUR home; which is clearly the goal.

Now that you understand what generally transpires at your typical CMC, lets get into what happened today and why it’s imperative to have a competent attorney representing you in your foreclosure defense every step of the way. Today’s CMC started with opposing counsel and myself informing the Court that the case was not at issue and could not be set for trial due to the still pending Motion to Dismiss that would need to be set for a future hearing. Now here’s the key part. At that time, the Judge nonchalantly declined our request and asked me to give my arguments for my Motion to Dismiss, clearly in an attempt to dispose of the Motion at that time so he could speed along the case. Instead of just quietly acquiescing to the Judge’s request, I realized this could potentially shave months off my client’s case, which could potentially result in less time for my clients to live in their home. Therefore, I respectfully brought to the Judge’s attention the fact that this particular Order setting today’s CMC did NOT include language which required all hearings to be heard and as such, the parties were under no obligation to hear the motion at that time. Subsequently, the Judge agreed and set another CMC several months out, with instructions for the parties to set the matter for hearing. Thus, my client’s Motion to Dismiss is still pending and as long as it’s pending a trial cannot be set. No trial = more time in the home! Victory! Subtle, but no doubt, a victory. It’s clear to see that had our client not had an attorney or not had an experienced attorney who knows how to pay attention to detail and think quickly on their feet, their case could have proceeded much quicker.

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Serious About Keeping Your Home? Attempt a Loan Modification Sooner Rather Than Later!

apply for loan modification nowWhen it comes to saving a home from foreclosure, the most responsible and prudent advice I can give someone who is realistically looking to keep their home is simple; apply for a loan modification and do it NOW! While I certainly consider our firm to be one of the most aggressive and knowledgeable defense firms in Central Florida, obtaining 7 free homes in just the last year alone, more often than not, simply defending a case won’t ultimately result in you retaining the home for the long haul. While we defend the foreclosure case, we highly advise that YOU the borrower, SIMULTANEOUSLY begin working with the bank to obtain a more affordable payment plan. i.e. a loan modification. It’s a two prong strategy for home retention: we aggressively defend against the bank’s attorneys in the courtroom, while you apply for loan modification directly with the bank’s reps. Since a loan modification can take several months to be reviewed by the bank, the ideal time to do this is early on in the litigation process when there are no trials or major hearings on the horizon. There’s nothing more stressful for a client than trying to get a loan mod with a trial one month away. Unfortunately, we get calls from potential clients that have other attorneys that tell us they have a trial coming up in 3 weeks and they want to know what if anything they can do to save the house. Sadly, their previous attorneys did them a major disservice by failing to timely inform the client they could potentially obtain a loan modification and keep the home. Most of the time, these potential clients hear this news for the first time after calling us.

Banks are under no obligation to give you a loan mod but if you do not try, then you don’t have a chance. If you’re in home foreclosure, regardless of how far along your case is, and you’re serious about keeping your home, APPLY FOR A LOAN MOD IMMEDIATELY! This is going to take some time as the bank will want all types of financial documentation including tax returns, pay stubs and utility bills, which is precisely why I say start now! It does not take specialized knowledge to obtain a loan mod as it is administrative in nature. We will defend your foreclosure as aggressively as possible, but it is your responsibility to negotiate your loan modification. Although we do not do the loan modification for you, we will answer ALL of your questions to help you reach your goal! There are also loan modification companies that can help you complete the loan modification process. Florida Law states that a NON-lawyer may NOT accept an up-front fee unless the loan modification is successful. If you do get the loan mod and begin payments, then the bank will voluntarily dismiss the foreclosure action. However, if you do not get the loan mod you can always reapply for other types of loan mods such as HAMP, HARP or even “In-House” mods. As the old saying goes, there is no time like the present…so start NOW!

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SERIOUS ABOUT KEEPING YOUR HOME? YOU’VE GOT TO ATTEMPT A LOAN MOD!

try-a-loan-modification
Everyday people come through our doors in distress because they have just been served with a foreclosure Summons. One of the first questions we ask here at The Freedom Law Firm is “what is your ultimate goal?” Now at first blush, the answer to this question may seem like an obvious one (keep the house) but in fact, many different people have many different goals. For instance, some young, first-time homeowners may be so incredibly upside down that they do not even want to save the house, but simply wish to walk away debt free so they can start fresh on another more financially sound property. Additionally, you might have an investor who is simply looking to fight the foreclosure as long as possible so they in turn can continue to rent the property out and make some additional income. However, the most common scenario we encounter is the obvious one that I alluded to earlier; it’s a family who has lived in the home for years and years and wants to fight to keep the property, their HOME, permanently. It is the latter of these scenarios in which we will focus our attention here today.

Most people want to keep their, and rightfully so. However, the hard truth of the matter is that simply saying you want to keep the home and hiring an experienced attorney to defend the foreclosure is not the be all end all when it comes to saving the home indefinitely. While it is a critically vital step due to the fact that you certainly need an experienced attorney to defend the case and prevent the bank’s lawyers from swooping in and stealing your home before you’ve had a chance to negotiate with the bank, that alone will more than likely not get it done.  The more prudent plan of attack would be that while you hire an experienced foreclosure defense firm, such as our team here at The Freedom Law Firm, to fight the bank’s attorney’s in the courtroom, you should be simultaneously working with the lender to obtain a loan modification. See the logic is simple, we protect your interests in the courtroom, which in turn buys you the time you so desperately need to work on a loan modification (repayment plan). Too many times do we get clients who come in and say they want to keep their home and then when we ask what is your plan for realistically achieving that end, they simply state, hiring you guys to defend. It is true, our firm is highly aggressive and experienced in the field of foreclosure defense, but even if we defend the foreclosure for years, sooner or later the case will be set for trial and at that point one of two things is going to happen; the bank is getting the home back or you are walking away with a free house. As you probably imagined, an overwhelming majority of Central Florida courts are not in the business of giving away free homes. Have we won people their homes before, yes. But that would not be prudent legal advice for an attorney to tell a client to simply depend on us winning the home at trial and not to worry about attempting a loan modification in the interim. Unfortunately, loan modifications can be incredibly difficult to obtain as it’s entirely up to the lender as to whether or not you will receive a loan mod. Flat out, it’s a numbers game. The bank plugs in your financials and subsequently determines if you make too much, too little, or hopefully, you qualify for a loan mod. There’s nothing an attorney or a judge can do to force the bank to give a you a loan mod. You see, to do so, would be to force a party (the lender) to retroactively alter the terms (payment amounts) of a preexisting binding contract (the original mortgage) years later. If this was permitted, contract law as we know it would be turned on its head. Thus, by no stretch of the imagination are loan modifications guaranteed, but if you do not try, you won’t have a chance, no matter how slight.

Fortunately for borrowers, due to new federal regulations implemented by the Consumer Financial Protection Bureau (CFPB) in January 2014, it behooves you now more than ever to attempt a loan modification. Whereas before, regardless of whether you were under review for a potential loan mod or even in the middle of making payments on a trial loan mod, your foreclosure trudged on. Under the old regulations, you could theoretically make a payment on July 1st and the Judge could notice your case for trial on July 2nd. Seems counter-intuitive right? That’s because it is. Luckily the powers that be finally got it right. Now, the regulations memorialized in the newly minted Dodd-Frank Act restrict “dual tracking.” What does this mean in plain English? Banks and/or servicers are no longer permitted to simultaneously proceed with a foreclosure while a borrowers loan modification package is under review or the borrower is in the midst of making payments pursuant to a trial loan modification plan. This is fair, this is justice. I mean after all, foreclosure is an action in equity right? Thus, a bank’s attorneys cannot push a case along where the borrower is attempting loan mod. This is great news because even if you do not inevitably obtain the permanent loan mod (which is clearly the ultimate goal) you can at least add significant amounts of time to the defense of your foreclosure by having the case removed to inactive status pursuant to the new regulations. In other words you now have nothing to lose when it comes to applying for loan mod. You can potentially save your home by obtaining a loan mod but worst case scenario you’ve temporarily stopped the foreclosure, which ultimately results in you and your family remaining in your home longer. The way it should be.

If you or somebody you know is faced with a foreclosure and is willing to fight to keep their home, it’s importannt that you take proactive steps to obtain that goal. The best way to do achieve this is by way of a loan modification. Loan modification is not an enjoyable process, but it is a necessary one. It’s imperative that you have an attorney that can not only guide you down the best path towards retaining your home, but it’s equally as important to have an attorney who obtains the skill and knowledge to leverage your good faith attempt to save your home into buying you more time! If you or anyone you know is fighting to save their house, please do not hesitate to call our experienced staff here at The Freedom Law Firm. We are here to answer your questions, anytime, day or night. 407-808-1435

 

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What Happens When an Attorney and a Judge Decide to Brawl in the Middle of Court


Judge decides to serve up a unique brand of justice: What happens when a attorney and a judge decide to brawl in the middle of a court. The entire incident lasted about a minute. Apparently the public defender stepped up to defend a man for assault charges.

“Two charges assault and resisting. You have the public defender, what do you want to do?” asked the judge.

“Did they file?” quipped the public defender

They have.” The judge answered quickly.

“I’m not waiving.” Said Weinstock with an upward inflection.

“…Alright. What do you want to do?” asked the judge after some hesitation.

“What do YOU want to do? I’m not waiving. *laughs* You want to set if for trial, set if for trial.” The public defender shot back at the judge.

“Alright.” Said the judge sounding like he was already losing his patience.

The public defender continued: “You want to set if for docket sounding, set if for docket sounding. I am not waiving in any case.”

The judge takes a deep breath and sighs loudly.

“The-this is an emergency created by the state-”

The public defender is cut off by the judge “You know, If I had a rock, I would throw it at you right now,” Murphy said. “Stop pissing me off. Just sit down. I’ll take care of it. I don’t need your help. Sit. down.”

“Now- I’m the public defender, I have the right to be here and I have a right to stand and represent my clients- ” Weinstock quickly retorted.

“I SAID SIT DOWN!,” Murphy yelled. “If you want to fight, let’s go out back and I’ll just beat your (expletive).”

“Let’s go. Right now,” Weinstock said.

The two justice officials strode into the hallway just outside of the court room where judge Murphy allegedly took hold of public defender Weinstock’s collar and began beating him. The entire altercation lasted less than a minute from start to finish.

You can still hear the two men yelling at each other after they go off camera. Eventually a Brevard County deputy separated the men to stop the brawl. Neither men decided to press charges.

With foreclosure defense, courtrooms can become pretty heated. Our goal is to keep our client’s in their homes for as long as possible. What would appear to be a simple matter is actually more in-depth and complicated. We make sure to convince the judge it is not a simple black and white case of non-payment. Not all judges are so easily convinced but everyone usually remains respectful.

That is no excuse for violence but the public defender did not appear to be respectful to the judge and the judge probably not having a good day as it was.

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