Homeowner Wins Appeal in Foreclosure Because the Bank Failed to Address all of the Defenses

law-gavel.jpgThe Fourth District Court of Appeal recently reversed the entry of final summary judgment in the bank’s favor because of procedural deficiencies.

Regions Bank had filed a foreclosure lawsuit against homeowners Michael and Elaine Seale. The homeowners had filed several defenses to the foreclosure lawsuit. The defenses included the allegation that the Bank lacked standing, that the Bank was not authorized to bring the action on behalf of the owner of the note, and that the bank failed to provide required default, acceleration, and opportunity to cure.

Nonetheless, the trial court granted summary judgment in favor of the bank, and the homeowner appealed.

By entering summary judgment in favor of the Bank the Fourth District Court of Appeal found that the trial court erred, because the Homeowners affirmative defenses were not factually refuted nor were they found to be legally insufficient.

In so ruling, the appellate court noted that a wealth of case law makes it clear that in the mortgage foreclosure cases, summary judgment is precluded if affirmative defenses are not factually refuted or shown to be legally insufficient.

In this particular case, legally sufficient defenses were erroneously struck, because nothing in the record refuted the claims made by the Homeowners.

The case has been reversed and remanded because the Bank did not provide the required notice of default and acceleration.

This is another illustration of how the banks are often in a rush to get to judgment. If you are facing a foreclosure, you have options available to you. One of them is a defense to your case. If you are in doubt regarding your rights, don’t hesitate to contact us today to discuss further.

Can Eminent Domain Solve The Foreclosure Crises in Miami?

ok-eminent-domain-law.jpgThe foreclosure crisis has not only impacted many Americans, but it has also impacted many communities. Homes that fall into foreclosure often fall into a state of disrepair. That leads to increased blight, a continued negative downward spiral of decreased real estate prices, and depressed neighborhoods. Even in today’s improving real estate market, the continued blight of foreclosed homes continues to be a problem for many of our hardest hit communities.

One local community is attempting to take a novel approach to solving this problem. The mayor of Richmond, California believes that the banks put all these people into loans that they simply could not afford. Then the banks refused to work with any of the homeowners in an effort to renegotiate the loans to make them affordable.

Consequently, the mayor is threatening to use, and invoke, the government’s eminent domain power in an effort to buy back the property. Eminent domain is a process that involves seizing private property for public use. Government use of eminent domain is most commonly used in the construction of roads and other government infrastructure.

If Richmond proceeds with its plan, however, it would be the first city in the nation to use its municipal power of eminent domain for mortgages.

Richmond’s plan would involve acquiring underwater mortgages at steep discounts, and then restructuring them to make them affordable for homeowners. While Richmond’s elected leaders emphasized that they would prefer to acquire the mortgages through negotiations with banks and investment firms, eminent domain would be an option to force the sales.

Then, once the city owns the property, they will in turn sell it back to the homeowner at a nice profit. Probably most importantly, the homeowner will be afforded an opportunity to buy the home back at a price, and with interest rates, that they could afford.

The idea behind the plan is to try to use the government’s powers to strong arm the banks into negotiating with homeowners. Many banks are crying foul. They claim that if the government were to move forward with this eminent domain plan that it will chill many investors in the future from providing prospective homeowners loans in the community in question.

In fact, several banks have taken the unprecedented step of filing suit against the City of Richmond in order to secure an injunction and enjoin the City of Richmond from moving forward with its plan.

Too often in today’s partisan political gridlock politicians are simply afraid to think out-of-the-box. This is no doubt a new novel approach in an effort to solve an age-old problem. But the approach proposed by the Richmond city officials begs the question – is this truly a workable plan to help solve the on going foreclosure crises still gripping our nation and local communities?

Fall Out from the Foreclosure Chaos – Squatters and an Increase in Adverse Possession Claims

squaTTERS.jpgJust think, you come back to your condo or home to find a stranger inside, a stranger who claims that you no longer own your property. The headlines have been bombarded with news of “Loki Boy” and his attempt to adversely possess a $2.5 Million home in Boca Raton, and copycats in Broward and Miami-Dade County. In Broward, the county appraiser’s office has received several adverse possession filings over the past few months since Loki Boy’s story broke. Broward County Property Appraiser Lori Parrish has had enough of it. She’s begging the state legislators to strike the law from the books once and for all.

The adverse possession law allows someone to take ownership of a property they have openly, and exclusively possessed for at least seven years. In addition the “squatters” are required to pay the taxes and liens on the property for those years.

Parrish is outraged that someone would have the audacity to file an adverse possession claim with her office, particularly when the home is not in foreclosure. She calls the centuries old rule a way to “legitimize breaking and entering” when used today. The rule came about when Florida was majorly agricultural land that sometimes fell into disuse. In a time like today, squatters are taking advantage of the floundering foreclosure process.

In Miami-Dade County, a recent news story ran about all the confusion surrounding who actually has the legitimate right to reside in multi-million dollar mansion in Coral Gables. Indeed, our firm has been involved in several “trespassing” episodes and worked with the authorities to ensure proper ownership.

Senator Maria Sachs agrees that something needs to be done; the increase in these types of filings indicates that something must change with the system. In Florida, one of the states hit hardest by the housing crisis, foreclosed property is often left empty while lenders proceed through the agonizingly slow foreclosure process, perfect prey for adverse possessors.

But foreclosure property isn’t the only target of these copycats. An adverse possession filing was recently submitted for oceanfront property in Broward. The property is not in foreclosure, in fact it’s simply for sale and empty. Luckily for the sellers, police apprehended the individual just days after he filed for adverse possession. Had he not been apprehended the property owners would have had to file a civil suit to eject the squatter.

Today’s property owners need to ensure that their property is safe, secure and free of all trespassers. Feel free to contact our office if you are experiencing an issue with squatters.

Foreclosure Activity Increases in Miami

house_underwater-Sharks.jpgForeclosures rose 11 percent in May in Miami compared with the same time last year. That increase marks the sixth consecutive year-over-year increase of foreclosure filings.

The increase in foreclosure filings in Miami should not come as a surprise. Due to the problems that many lenders encountered last year with the robo-signing scandal, and other similar issues, many lenders simply stopped filing foreclosures. They did so in an effort to correct the problems and address different investigations launched by various state attorneys general brought to protect consumers.

So while the numbers pointed towards a slow down of the foreclosures last year, that slow down was a artificial slow down due to the problems many lenders encountered. However, those problems appear to have been corrected. As such, we should expect a continued increase in foreclosures in Miami through at least the end of the year as many lenders move forward with their foreclosures.

Don’t despair if you are one of the many struggling homeowners facing foreclosure. You have options and many alternatives available to help you achieve your objective.

Banks have become more aggressive in the re-financing market through the HARP program. Call us today to assess whether you qualify. Loan modifications are a continued potential avenue of financial relief. Under certain circumstances, many banks are even writing off principal of the original loan. Then there are other options such as the HAFA program associated with short sales which could result in the borrower actually get paid to move.

Foreclosure and Real Estate Attorneys are Often Asked – What is a Lis Pendens and How Does it Impact My Property?

Lis-Pendens.jpgFlorida is a judicial state, which means that when action is taken to foreclose on a home, a notice of lis pendens must be filed in the county where the property is located. A lis pendens in Florida is the necessary formal notice to alert the world of the pendency of a lawsuit concerning title to or possession of land. It imparts constructive notice to the world of the claims of the litigants.

The lis pendens is the formal document that is recorded separate and apart from the underlying complaint and lawsuit. It creates a warning on the title to the property and hinders the ability to sell the property. It is really nothing more than a separate document that is recorded with the Clerk of Court with the sole purpose of alerting the world of the pending litigation involving the property.

Lenders traditionally file a lawsuit to foreclose on a home along with a notice of lis pendens. When this information is filed, it becomes available to the public.

The lis pendens is an important document in any foreclosure action. That is because parties who acquire an interest in the mortgaged property with notice of the foreclosure proceedings are bound by the foreclosure decree just as if they had been named party defendants.

In sum, the filing of a lis pendens typically triggers the start of the foreclosure process together with the filing of the formal complaint and summons.

Being in a foreclosure is a stressful situation. But there are alternatives available to help address the foreclosure.

There are many alternatives to foreclosure, and often times it just takes proper planning to properly navigate against the potential pitfalls. Help is often available to those who seek it. Contact us today.

Is It Time To Buy A Home In Today’s Real Estate Market?

buy-hold-sell-real-estate.jpgHousing is one of the great investments right now. Today’s market presents wonderful opportunities for many. Interest rates continue to remain at historic lows. Housing prices also continue to remain at very affordable levels.

Indeed, legendary investor Warren Buffett recently stated that if he had a way to manage them he would buy several hundred thousand single-family homes and rent them out. Consequently, there are many investors that are buying homes in today’s market as an investment and subsequently renting them.

But for the many that wish to purchase a home and actually live in it, the question becomes is today’s market the perfect time to buy.

There is certainly the valid argument that those individuals could wait to see if home prices continue to fall. Indeed, many experts suggest that home prices will continue to decline through at least this calendar year, and possibly in next year as well.

However, you cannot time the housing market anymore than you can time the stock market. True, the housing market moves far more slowly, but that works to its benefits, as prices don’t rise and fall on daily news or even major events.

Another factor to consider are thehistorically low interest rates. By all accounts, interest rates should remain pretty consistent through at least the end of the year, and possibly into the early part of next year.

Therefore, the combination of low prices coupled with historically low interest rates makes it a very attractive time to be a home purchaser for both investors and as someone who is looking to buy a home for his family.
Consider Your Options. Contact Us Today.

If you need a real estate attorney, or just need to assess your legal rights, please contact our office today.

Call us today toll free at 1-866-518-2913 or at 305-263-7700.

Mortgage Deal Fails to Make an Impact to Help Struggling Homeowners

mortgage-settlement.jpgA mortgage settlement over the mishandling of millions of foreclosures was recently reached following 16 months of complex negotiations between 50 attorneys general and five major banks amid allegations of robo-signing and other abuses further fueling the foreclosure crises.

Under the terms of the settlement, those who have lost their homes or have fallen underwater on their loans could receive a $2,000 check, a $20,000 mortgage reduction or a lower interest payment.

But while everyone involved in procuring this deal should be applauded for their effort, the deal falls short. The deal is saddled with glaring limitations which will make it difficult to reach the millions of homeowners currently struggling.

For starters, the numbers simply tell us that this deal won’t reach that many people which means this settlement will be felt by just few fortunate individuals. Specifically, borrowers around the country owe more than $700 billion more on their homes than the homes are worth, yet the settlement offers only $26 billion in fines and relief to homeowners.

Additionally, approximately one million homeowners will have their mortgage debt reduced or loans refinanced at a lower interest rate, and up to 750,000 other borrowers who became victims of abuses in the foreclosure process could receive an average of $1,500 to $2,000. On the other hand, many estimate that some 11 million U.S. homeowners are underwater — they owe more on their homes than the homes are worth. Some 4 million are in foreclosure or seriously delinquent.

So to repeat, a mere cursory look at the numbers reveals that the deal won’t be as far reaching or helpful to the great majority of struggling homeowners.

But the deal has other limitations as well. The settlement is limited to five big banks that own the mortgages directly. Those include Bank of America, JP Morgan Chase, Wells Fargo, Citigroup and Ally.

It excludes private investors, other banks and — most important — mortgages backed by federal agencies known as Fannie Mae and Freddie Mac, as well as the FHA. These agencies, which are subject to controls from the executive and Congress, account for about 56 percent of all existing loans.

This settlement fails to satisfy the need for accountability by those responsible for the housing collapse. If the only punishment is a slap on the wrist, the mortgage industry will have learned nothing from this epic debacle.
Consider Your Options. Contact Us Today.

We are certainly in difficult times. At Alvarez & Barbara, LLP, we understand all of our client’s individual needs and pride ourselves in providing high quality service.

Call us today toll free at 1-866-518-2913 or at 305-263-7700.

Florida Legislators Ponder Changes to Florida’s Foreclosure Laws

FloridaLegislature_t607.jpgFlorida’s annual legislative session is about to get under way. Florida’s legislators are about to contemplate many significant issues this legislative session. Chief among them includes re-districting and gambling.

But the ongoing foreclosures crises in Florida will also be front and center. Several laws have been introduced that could impact the method and manner in which banks foreclose on properties in Florida, and especially here in South Florida.

One of the issues being addressed this legislative session involves deficiency judgments in foreclosures.

For instance, lenders are often entitled to judgments against the homeowner to make up the difference between the mortgage debt and the amount recovered at the foreclosure auction. Those judgments against the homeowners are good 20 years.

This pending bill tries to strike a balance between homeowners and lenders. It tries to create a way for lenders and homeowners to satisfy a deficiency judgment in exchange for homeowners doing certain things.

The bill states that homeowners in default on homestead purchased from 1/1/04 to 12/31/08, may receive a waiver of deficiency and up to $1,000 in moving expenses if they settle their foreclosure actions with a non-monetary judgment and vacate the property within three months of the judgment or judicial sale, whichever is later.

The state fund would be used to give lenders incentive to settle by helping them recoup some of their losses where properties are worth less than the mortgage balance.
Consider Your Options. Contact Us Today.

If you are facing the prospects of having your home foreclosed on, or if you are seeking to purchase a home in this current market, please contact us today for a free consultation.

Govt Places Pressure on JP Morgan, and Others, to Do More to Help Struggling Homeowners

LoanModificationattorneylasvegas.jpgJPMorgan Chase is coming under increased pressure from the Federal Government for not doing enough to help struggling homeowners permanently lower their mortgage payments as part of the government’s foreclosure prevention program.

JP Mortgage Chase is not alone in receiving this criticism. The Government recently also criticized Bank of America, Wells Fargo, and Ocwen, for not doing enough to help struggling homeowners.

As part of the Government’s criticism of these four banks – Bank of America, Wells Fargo, Ocwen, and JP Mortgage Chase – the Government began withholding financial incentives of up to $1,000 per modification.

The Government launched several programs back in 2009 with the intended purpose of helping struggling homeowners keep their homes. The intent of the plan was to lower the homeowner’s monthly payments.

In a loan modification, for example, homeowners start with a lower monthly payment on a trial basis. But the Government’s loan modification program has struggled to convert those that started the trial modification into a permanent loan modification.

Homeowners have complained that the program is a bureaucratic mess, and nightmare. Many say they were disqualified after banks lost their documents and failed to return their phone calls.

On the other hand, banks have blamed homeowners for failing to submit needed paperwork. They often cite incomplete paperwork and delays in getting the necessary paperwork.

More than 1.7 million troubled homeowners received trial modifications over the past two years. But as of October, more than half of them — about 880,000 people — have dropped out of the program entirely.

If you are frustrated with the process, and facing potential foreclosure, we’re here to help. Contact us today to discuss your potential options.

Time is Now to Challenge Your Foreclosure Thanks to a new Government Program Aimed at Fighting Robo-Signing and Fraud

robo-writer1.jpgIf you feel as though your home was improperly foreclosed in either 2009 or 2010, then there may be recourse for you yet.

The Federal Reserve Board recently announced that homeowners who believe that robo signing and other such issues hurt them during the foreclosure process can complain directly to the Federal Reserve for potential recourse.

The Office of the Comptroller of the Currency is beginning a multifaceted independent review of foreclosure actions. Their review will apply to homeowners that went through the foreclosure process and will involve some of the largest banks and mortgage service on in the country. They include GMAC mortgage, HSBC Finance Corporation, SunTrust mortgage, and EMC Mortgage Corporation, among others. The major banks, including Bank of America, Chase, Citibank, Wells Fargo, GMAC, and EMC, will have to fund these independent reviews to evaluate whether borrowers suffered financial injury through error, misrepresentation, fraud, or other deficiencies in the foreclosure process.

If the homeowner was injured during the foreclosure process, then the homeowner could get some kind of remedy for the misrepresentations that took place during the foreclosure process.

The major mortgage services began sending out letters to eligible homeowners recently to explain the process. A homeowner’s request for review must be received by April 30, 2012.

So could a homeowner get there home back? Probably not. In all likelihood, that home has probably already been sold. But each case will be reviewed on a case-by-case basis. And if an appropriate remedy is the return of an unsold home to a homeowner, then it is certainly possible. But more realistically, the likely remedy will probably be some form of compensation.
Consider Your Options. Contact Us Today.

If you are on the brink of foreclosure, need a real estate attorney, or just need to assess your legal rights, please contact our office today.

Call us today toll free at 1-866-518-2913 or at 305-263-7700.