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Florida Foreclosure News Beat for Tuesday, Friday, October 14, 2011

RandPeacockPA — Fri, 14 Oct 2011 13:41:39 GMT

Today's Florida Foreclosure News!

Chris Tucker Facing Foreclosure on Mansion, October 14, 2011, by Kevin Dolak, ABC News
Property foreclosures jump in SW Florida, October 14, 2011, Miami Herald
Naples lawmaker proposes foreclosure reform bill, October 13, 2011, By Elizabeth Billingsley
CFPB To Examine Banks With Focus On Troubled Loans, October 13, 2011, By Ronald D. Orol, Fox Business News

Is your house worth unlicensed legal advice?

RandPeacockPA — Tue, 20 Sep 2011 17:28:58 GMT

This is something I want to share with everyone and it follows my earlier post about William Timothy O-Toole of Summit Legal Group and the unlicensed legal aid being given/sold as foreclosure assistance. Over the last few years I've had my encounters with both homeowner's who floundered with their own self help and pro se defense of their homes. I've also heard a few stories of people who have been given help by interested friends or family usually to bad effect. I've even heard of cases where notaries or former paralegals are giving informal advice, which falls close to unlicensed practice of law. This can in some ways be worse for the home owner than doing nothing at all.

First, on the subject of unlicensed practice of law and notaries or paralegals you should know this. If the individual is not a licensed attorney in the state they cannot do anything else but proof your spelling and witness your signature. They are not supposed to even tell you what forms to fill out or file. Yes, there are some forms or motions that need to be filled out but how you fill them out and what you do afterwards is often far more critical than simply filing the form. This has been a big problem in Family Law and Immigration too and I suspect this is where a lot of these people come from. I'll explain more in a bit, but for now keep this in mind that they should not be doing anything more than witnessing your signature and literally crossing a "t" or dotting an "i."

As a side, you can get help, for free, in filling out loan modification applications and some limited advice from HUD approved housing counselors throughout the state. Here are some in Pinellas and other in Florida as a whole. These groups help explain what is needed, how it needs to be prepared, and in some cases what can be substituted (say a wage statement if w2 are not available). More importantly, they know when to say "go talk to an attorney" when your questions go beyond simply filling out the forms as the bank's are requiring. They do not give advice on fighting a foreclosure because that is not what they do. So, here I can give my blessing, but remember this advice should be free and from one of these agencies.

Now here's the harm in using this unlicensed practice of law. By definition, if they are telling you what to file, you have entered a defense in the case. The Judge will assume that by doing so you both know that a foreclosure had been filed against you (you have been properly noticed and served) that you understand the risk (that if the Bank establishes its case and you do not properly dispute it with admissible evidence you WILL lose your house and probably still owe money), and that if you do not bring up a particular issue or fact that the issue does not exist (i.e. if you fail to mention that you do not know who the bank is or how they own the note then that bank probably owns the note by your failure to point this out). So, if you file a motion that fails to establish the one defense that the Judge would have considered not only is it too bad for you now, but it's probably too bad for you later when you go up on appeal or finally get an attorney to help because you had to bring up these issues and you failed too.

Next, just because you ask something does not mean that the Court will make it happen. Sometimes you have to ask several times and make very specific arguments why the particular request is worth the court's time and energy and not just a red hearing to delay the process. So when this person tells you to file a motion or discovery request they can't do the rest which includes sending good faith letters, arguing the issue in court and doing follow up motions and hearings to either get what you're seeking or establish that the Bank is simply being evasive and not co-operating. Our legal system is argument and not form driven and no motion wins a case by itself.

All cases are not the same. Each foreclosure case I take requires several hours of looking through the documents filed, the client's documents, the public record, SEC filings, the internet and the bank's discovery responses to establish what that particular loan's story is. A Judge cannot assume just because a case is filed by someone like David Stern that there is something horribly wrong with the bank's title to the note and everything in the file could be made up. So you need to be able to tell your loan's story and point out where little red riding hood went off the path and into the woods to see where the wolves may be. I've had several cases where my client's only defense comes down to the bank not putting forward admissible evidence like the 4th DCA attacked in Glarum. So a form Motion to Dismiss would have done nothing in those cases.

Finally, I've also seen instances where people are told to simply ask the court for more time to get a short sale done. Admittedly there are many Judges who will respond positively to this. However, a Judge will only follow this to a point and only for so long as the Bank does not ask to move the case forward. The damage in this comes when you suddenly want to start defending the case. The problem is that, by saying you need more time, you may have effectively admitted that you owe this particular bank this money and that the foreclosure is otherwise valid (otherwise you would be fighting). The sad other side to this is that the homeowner could have raised their defenses and still pursued a short sale or modification while the defenses were before the court. There's nothing that prevents you from doing both.

So please be careful in what advice you accept and where you accept it from. It's your house and you should get the best licensed legal advice you can find.

Florida Foreclosure News Beat for Tuesday, Monday, September 19, 2011

RandPeacockPA — Mon, 19 Sep 2011 15:17:27 GMT

Today's Florida Foreclosure News!

Mired in Foreclosures, By JESSICA SILVER-GREENBERG, The Wall Street Journal

When losing property in foreclosure is not enough, September 19, 2011, By Doug Sword, Herald Tribune

Federal housing program faces barriers in Florida market, September 19, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Obama Faces 2012 Liability as Housing Slump Continues in Battleground States, September 18, 2011, | Fox News Latino

Post earlier this month!

Foreclosures still hobbling Florida, September 13, 2011, By Ralph De La Cruz, Florida Times Union

U.S. Homeowners ‘Underwater’ on Loans Drop as Foreclosures Mount, September 13, 2011, By John Gittelsohn, Bloomberg Businessweek

Fla. governor may reject money from jobs plan, September 13, 2011, by GARY FINEOUT, South Florida Times

4th DCA decision makes waiting for the banks to foreclose an even longer proposition for associations! , September 12th, 2011,by: Donna DiMaggio Berger, Esq. South Florida Sun Sentinel

Mr. President, you still don't get it: Fixing the housing market is Job One, September 12, 2011, Jack McCabe, chief executive officer of McCabe Research & Consulting LLC, can be reached at jack@mccaberesearch.com., for the Herald Tribune

Gov't role as ref and player in financial market causes conflicts, September 12, 2011, by Jonathan Weil, for Cincinnati.com

Judge enjoins Calif. lawyers accused in bank suits, September 9, 2011, By JACOB ADELMAN, Associated Press

South Florida’s foreclosure rate rises, September 9, 2011, By TOLUSE OLORUNNIPA, Miami Herald

Bank of America doubles foreclosure filings in South Florida, September 9, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

Ruling in Wellington case could further complicate Florida foreclosures, September 8, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Foreclosures rise across South Florida, September 8, 2011, by South Florida Business Journal

Orlando posts higher foreclosure rates, fewer delinquencies, September 8, 2011, Orlando Business Journal

Q&A: Don't believe all you hear about mortgage modifications, September 8, 2011, by GARY M. SINGER, Sun Sentinel

South Florida home prices nearly flat in July, September 8, 2011, by Oscar Pedro Musibay Reporter for South Florida Business Journal

Florida Foreclosure News Beat for Tuesday, Tuesday, September 13, 2011

RandPeacockPA — Tue, 13 Sep 2011 15:44:06 GMT

Today's Florida Foreclosure News!

Foreclosures still hobbling Florida, September 13, 2011, By Ralph De La Cruz, Florida Times Union

U.S. Homeowners ‘Underwater’ on Loans Drop as Foreclosures Mount, September 13, 2011, By John Gittelsohn, Bloomberg Businessweek

Fla. governor may reject money from jobs plan, September 13, 2011, by GARY FINEOUT, South Florida Times

Here's what's in the news for Florida Foreclosures this week!

4th DCA decision makes waiting for the banks to foreclose an even longer proposition for associations! , September 12th, 2011, by: Donna DiMaggio Berger, Esq. South Florida Sun Sentinel

Mr. President, you still don't get it: Fixing the housing market is Job One, September 12, 2011, Jack McCabe, chief executive officer of McCabe Research & Consulting LLC, can be reached at jack@mccaberesearch.com., for the Herald Tribune

Gov't role as ref and player in financial market causes conflicts, September 12, 2011, by Jonathan Weil, for Cincinnati.com

Florida Foreclosure News Beat for Tuesday, Monday, September 12, 2011

RandPeacockPA — Mon, 12 Sep 2011 14:53:46 GMT

Today's Florida Foreclosure News!

4th DCA decision makes waiting for the banks to foreclose an even longer proposition for associations! , September 12th, 2011, by: Donna DiMaggio Berger, Esq. South Florida Sun Sentinel

Mr. President, you still don't get it: Fixing the housing market is Job One, September 12, 2011, Jack McCabe, chief executive officer of McCabe Research & Consulting LLC, can be reached at jack@mccaberesearch.com., for the Herald Tribune

Gov't role as ref and player in financial market causes conflicts, September 12, 2011, by Jonathan Weil, for Cincinnati.com

Don't look for real foreclosure help in the Jobs Plan

RandPeacockPA — Mon, 12 Sep 2011 14:36:31 GMT

I just want to say always look at the numbers. I glanced over this AP article and noticed that Obama, in his new jobs plan, made an apportionment for foreclosures as well. However, as with all things from Washington, read between the lines and look at the real numbers. Apparently the Plan includes "$15 billion to refurbish vacant and foreclosed homes or businesses."

That sounds swell until you do the math. The Huffington Post currently puts the number of vacant houses at 19 Million. WOW! And that's only in April 2011 and it only covers vacant residential houses. That does not include soon to be vacant houses, businesses or simply houses which are in absolute disrepair because the homeowners can't justify putting anything into them while facing a bank who refuses to negotiate. Yes, there are other numbers but the range is only 600,000

So here comes the math to see just how little Washington appreciates this problem. I know they are big numbers, but let's spread them out...

$15,000,000,000.00 money to refurbish ÷ 19,000,000 vacant homes = $789.47 per house! You can't get you house painted for that, let alone repair a roof, put in grass, put up drywall or replace an air conditioner.

YES, that's right Obama has calculated that it will only take $789.47 per house to get our neighborhoods cleaned up and people working. Keep in mind this is how much he asked for before congress got to whittle it down. This somehow smells more like pork for the suburbs of Chicago than a genuine effort to help get our housing market back off the ground.

Florida Foreclosure News Beat for Tuesday, Friday, September 09, 2011

RandPeacockPA — Fri, 09 Sep 2011 14:26:13 GMT

Today's Florida Foreclosure News!

Judge enjoins Calif. lawyers accused in bank suits, September 9, 2011, By JACOB ADELMAN, Associated Press

South Florida’s foreclosure rate rises, September 9, 2011, By TOLUSE OLORUNNIPA, Miami Herald

Bank of America doubles foreclosure filings in South Florida, September 9, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

Here's what's in the news for Florida Foreclosures this week!

Ruling in Wellington case could further complicate Florida foreclosures, September 8, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Foreclosures rise across South Florida, September 8, 2011, by South Florida Business Journal

Orlando posts higher foreclosure rates, fewer delinquencies, September 8, 2011, Orlando Business Journal

Q&A: Don't believe all you hear about mortgage modifications, September 8, 2011, by GARY M. SINGER, Sun Sentinel

South Florida home prices nearly flat in July, September 8, 2011, by Oscar Pedro Musibay Reporter for South Florida Business Journal

Balky banks gum up foreclosure courts, benefiting some owners - St. Petersburg Times September 7, 2011, By Susan Taylor Martin, Times Senior Correspondent, St. Petersburg Times

With Prices Up and Foreclosures Down, Housing Remains Fragile, September 6th, 2011, by Elizabeth Ecker Published in News, Reverse Mortgage

U.S. banks offered deal over lawsuits: report, September 6, 2011 , by Stephen Mangan in London and Dave Clarke in Washington D.C.; Additional reporting by Sakthi Prasad in Bangalore; Editing by Matt Driskill, Reuters

Florida receives nearly $500,000 in federal grants to help fight mortgage modification scams, September 6, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Burt Reynolds set to lose Florida property, September 6, 2011, by Rebecca Smith for RealEstateRama

Florida legislature trying to bust foreclosure backlog - again: September 5, 2011, By Kimberly Miller Palm Beach Post Staff Writer,

Florida Foreclosure News Beat for Tuesday, Thursday, September 08, 2011

RandPeacockPA — Thu, 08 Sep 2011 18:12:32 GMT

Florida Foreclosure News Beat for Tuesday, Thursday, September 08, 2011

Today's Florida Foreclosure News!

Ruling in Wellington case could further complicate Florida foreclosures, September 8, 2011, By Kimberly Miller, Palm Beach Post Staff Writer
Foreclosures rise across South Florida, September 8, 2011, by South Florida Business Journal
Orlando posts higher foreclosure rates, fewer delinquencies, September 8, 2011, Orlando Business Journal
Q&A: Don't believe all you hear about mortgage modifications, September 8, 2011, by GARY M. SINGER, Sun Sentinel
South Florida home prices nearly flat in July, September 8, 2011, by Oscar Pedro Musibay Reporter for South Florida Business Journal

Here's what's in the news for Florida Foreclosures this week!

Balky banks gum up foreclosure courts, benefiting some owners - St. Petersburg Times September 7, 2011, By Susan Taylor Martin, Times Senior Correspondent, St. Petersburg Times

With Prices Up and Foreclosures Down, Housing Remains Fragile, September 6th, 2011, by Elizabeth Ecker Published in News, Reverse Mortgage
U.S. banks offered deal over lawsuits: report, September 6, 2011 , by Stephen Mangan in London and Dave Clarke in Washington D.C.; Additional reporting by Sakthi Prasad in Bangalore; Editing by Matt Driskill, Reuters

Florida receives nearly $500,000 in federal grants to help fight mortgage modification scams, September 6, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Burt Reynolds set to lose Florida property, September 6, 2011, by Rebecca Smith for RealEstateRama

Florida legislature trying to bust foreclosure backlog - again: September 5, 2011, By Kimberly Miller Palm Beach Post Staff Writer,

Post earlier this month!

Bank of America doubles foreclosure filings in South Florida, September 1, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

Florida AG under fire for terminating employees, September 1, 2011, by GARY FINEOUT, Associated Press, Printed in Miami Herald

Tying Health Problems to Rise in Home Foreclosures, August 31, 2011, S. Mitra Kalita, Wall Street Journal

Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit, August 25, 2011, Naked Capitalism blog

Kudo's to Ice Legal and its appealte victory LASALLE V. GLARUM

RandPeacockPA — Thu, 08 Sep 2011 17:48:18 GMT

Another great appellate ruling. Read LASALLE V. GLARUM well because it shows that the banks usual quick fire affidavits of amounts owing are insufficient.

Here's an important issue for everyone who's looking for help defending their house or modifying their loan.

RandPeacockPA — Thu, 08 Sep 2011 17:37:31 GMT

This is an important read for anyone seeking, or receiving help with their mortgage or foreclosure.

Attorney suspended for involvement with nonlawyers in loan modification business

This is an article from the Florida Bar News August 15, 2011 issue, about an Attorney who's licenses got suspended because he was working with non-lawyers who were providing loan modification assistance. This is in violation of Florida Statutes § 501.1377, the Foreclosure Rescue Act. Long story short, this group of non-lawyers, foreclosure-rescue consultants were taking money from homeowners to the tune of $1,500 to $3,000 through this attorney's office in violation of the law.

According to the underlying petition and this article, this attorney, William Timothy O-Toole of Summit Legal Group, admitted to, among other things, the following:

He was splitting fees with non-lawyers; He was not supervising the non-lawyers who were actually working on his client's cases;
That he allowed almost exclusive control of the office to the non-lawyers, contact with the clients from the initial call, negotiations with the bank and advising the clients of the outcome of the negotiations;
And that he did not know the status of the 2,500 to 3,000 cases he received through this arrangement.

So it appears that he simply let this group of non-lawyers use his name and license for a cut of the fees and really did not do much if anything else for the clients.

The petition and article also state that the non-lawyers were soliciting potential clients with promises of rate reductions or other results. Anytime a non-lawyer contacts you about your specific situation, especially in an unsolicited phone call, should be a big red flag.

Be wary of these foreclosure rescue scams in sheep's clothing.

Florida Foreclosure News Beat for Tuesday, Wednesday, September 07, 2011

RandPeacockPA — Wed, 07 Sep 2011 18:28:37 GMT

Today's Florida Foreclosure News!

Balky banks gum up foreclosure courts, benefiting some owners - St. Petersburg Times September 7, 2011, By Susan Taylor Martin, Times Senior Correspondent, St. Petersburg Times

Please sign this petition against the Florida Fair Foreclosure Act

RandPeacockPA — Wed, 07 Sep 2011 17:56:58 GMT

We need your support! Follow this link and sign on to this, and any other, petition you can find against the Florida Fair Foreclosure Act.

http://signon.org/sign/do-not-support-the-florida?source=c.url&r_by=533269

Florida Foreclosure News Beat for Tuesday, September 06, 2011

RandPeacockPA — Tue, 06 Sep 2011 21:08:59 GMT

Here's what's in the news for Florida Foreclosures this week!

With Prices Up and Foreclosures Down, Housing Remains Fragile, September 6th, 2011, by Elizabeth Ecker Published in News, Reverse Mortgage

U.S. banks offered deal over lawsuits: report, September 6, 2011 , by Stephen Mangan in London and Dave Clarke in Washington D.C.; Additional reporting by Sakthi Prasad in Bangalore; Editing by Matt Driskill, Reuters

Florida receives nearly $500,000 in federal grants to help fight mortgage modification scams, September 6, 2011, By Kimberly Miller, Palm Beach Post Staff Writer

Burt Reynolds set to lose Florida property, September 6, 2011, by Rebecca Smith for RealEstateRama
Florida legislature trying to bust foreclosure backlog - again: September 5, 2011, By Kimberly Miller Palm Beach Post Staff Writer,

Post earlier this month!

· Bank of America doubles foreclosure filings in South Florida, September 1, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

· Florida AG under fire for terminating employees, September 1, 2011, by GARY FINEOUT, Associated Press, Printed in Miami Herald

· Tying Health Problems to Rise in Home Foreclosures, August 31, 2011, S. Mitra Kalita, Wall Street Journal

· Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit, August 25, 2011, Naked Capitalism blog

Here they go again, now with the Florida Fair Foreclosure Act

RandPeacockPA — Tue, 06 Sep 2011 18:19:48 GMT

Check out this article from the Palm Beach Post. It appears Rep. Kathleen Passidomo, R-Naples, is circulating her so named "Florida Fair Foreclosure Act" proposed bill to get support. This bill seeks to make it that much harder for homeowners to defend their properties against banks with questionable foreclosure claims. The operative parts of the proposed bill seek to shield banks in the following big ways:

In any action where a party seeks to set aside, invalidate, or challenge the validity of a Final Judgment of Foreclosure the bill removes the ability of the foreclosed homeowner to recover the property itself and only seek money damages. This gets really smelly where it further removes a homeowners right to recover only for claims involving the enforcement of a "lost, destroyed or stolen note" because those have been the claims that banks have had to abandon because of all of the fraud.
In uncontested foreclosure the courts would be required to enter a judgment within 45 days, instead of the usual 90 days, of date of service (close of pleadings). This is particularly funny since it's been the banks and not the Judges who've been dragging their feet on actually getting the houses sold at Judicial Auction once they have a Judgment so one wonders what the big rush is.
The bill seeks to turn Florida into a NON JUDICIAL foreclosure state, like California, for any mortgage where the amount owed of principle and interest exceeds 120% of property values as determined by the Property Appraiser's Office.
Interesting the bill seeks to remove the bank's liability for bringing bad claims while at the same time providing for attorneys fees for the prevailing party. While this may seem only poor draftsmanship it also shows the absolute double standard the banks are pushing for.

It is also important to point out that the banks seek to protect themselves by removing Florida Statutes 57.105 completely. In Foreclosures, this statute, 57.105, make most the mortgage language that calls for attorneys fees against the mortgagee home owner apply equally against the mortgagor bank if the homeowner is successful in defending their case. It also holds the law firms or attorney (say David Stern) who file a foreclosure that is ultimately shown not to be supported by facts (or law) 50% responsible for the homeowners attorneys fees. This is a statue that the big business in Florida has used for years to stifle consumer claims because it allows a big stick to hurt attorneys who bring bad or questionable claims to a court.

There is much more here that makes this bill worthy of a quick legislative death. However, it really would not fix any of the current problems because it cannot be applied retroactively in Florida. Also, even if everything in it were granted there would still be no quick end to the foreclosure crisis because the banks would still have to actually move the properties to judicial sale (the bill only acts to allow a quick judgment but does not require an equally quick sale.) As things currently stand a big part of the back log has been the banks not moving their own cases to a judicial sale.

Even if the banks had the houses, THEY ARE NOT SELLING THEM! That means that the average property value in Florida would still stay artificially depressed for the decades it would take the banks to slowly sell off their existing and coming inventory. Don't believe it? Check out that house down the street with the plywood on the windows for the last 2 years and the grass the county cuts every 3-6 months. Check it out who owns it on the property appraiser's web site and if it's suddenly a bank, why is it not on the market now rather than later when it's all rotted out?

This bill is not surprisingly similar to HB 1191 - Foreclosure Proceedings, (text of HB 1191 here) another bill proposed by Rep. Passidomo which died in the Civil Justice Subcommittee on May 7, 2011. This bill also sought to "fix" foreclosure problems by stripping homeowners of their rights. You can check out Rep. Passidomo on Face Book, Twitter or her website and let her know how you feel about this wonderful little bill.

Also, please look up your Florida Representative or State Senator and let them know that you disapprove of this bill and advise them not to sponsor or vote on it. If they do not hear from you, they will only hear from the banks lobbyist on this. So stay involved as a citizen and do your part.

Things to keep in mind with your Florida foreclosure

RandPeacockPA — Thu, 25 Aug 2011 19:12:27 GMT

Here are a few tips to remember if you've been served with a foreclosure complaint or are in default and expecting a foreclosure:

Once you are served with a complaint you have 20 calendar days to formally respond in writing to the Court and the Attorney who filed the Complaint.
A bank can obtain service either by having a Service Agent physically hand you a copy of the complaint, or by publication in the local newspaper if its Service Agent cannot find y you. Avoiding the Service Agent is not an Answer.
Most banks will eventually file the original note with the Court. Simply demanding the bank produce the note may not stop a foreclosure.
A Judge cannot, and will not advocate on your behalf in any litigation. You, or your attorney, are expected to raise all defenses and issues for the Judge to rule on.
The Bank's attorneys, debt collectors or other agents DO NOT REPRESENT YOU.
Many foreclosure defenses do not rely or depend on your ability to pay the mortgage.
Attempts to renegotiate a loan will not halt foreclosure proceedings in court, legally stop a Judge from issuing a judgment against you, or prevent the sale of your house.
Listing the house for short sale will not halt foreclosure proceedings in court, legally stop a Judge from issuing a judgment against you, or prevent the sale of your house.
Even if the bank obtains the house through foreclosure, through a deed in lieu, or "cash for keys," you could still owe money to the bank. The bank could enforce the debt through the Courts.
If you sell your house in a short sale, the bank may still require that you pay or continue to owe the amount of your loan not covered by the sale.
If the bank forgives any part of your debt, the bank will most likely issue you an IRS 1099 showing that forgiven debt as taxable income to you, resulting in further tax consequences.
While Florida currently requires banks to participate in mediation with you, you have to formally ask for that option and it does not halt the foreclosure case. Also the bank does not have to actually settle with you at mediation. Mediation may not prevent your foreclosure.

Find out more at www.peacock-law.com
or call (727) 490-5719 to set up your free consultation today

Sometimes they make it too easy

RandPeacockPA — Mon, 14 Jun 2010 22:34:00 GMT

As many of you may have heard, the Florida Supreme Court Recently came out with a new rule requiring any party seeking to foreclose on a residential property to file VERIFIED Pleadings. The rule states that all allegations in the pleadings are to be true to the best of the knowledge of the representative of the party are true. This rule was issued on February 11, 2010, and predictably the banks are doing all that they can to weasel out of it. I really shouldn't use the term weasel, it gives weasels a bad name they don't deserve, but I digress.

Currently the banks have been trying to file statements that only attest to the truth of some of the allegations in the complaint. This is clearly in violation of the Florida Supreme Court's edict and it has been properly thrown out by judges. A great example of this can be found in Manatee County where the Judge entered this great order dismissing the case and requiring the Bank to re-pay the filing fee if they wanted to foreclose.

Here's a copy of the statement that the Judge found to conflict with the new rule:

For a complete copy of the complaint and this affirmation click here

You will notice that the affiant seems to take particular care to only attest to some and not all of the allegations in the complaint. In fact, it really misses a lot of the important allegations, such as:

Was a note and mortgage ever signed by the Defendants? , or
Do the Defendant's even own the property?

This is a great example of a Judge who both "gets it" and understands why the Florida Supreme Court made this new rule.

While reviewing these documents as preparation for writing this article, about the latest attempts by the banks and their mill attorney's to subvert the courts, I noticed an even bigger issue. I apologize for the quality of this scan but can you catch it?

Yep, the affidavit is missing a notary stamp!. That's right! This one was not even notarized, but rather signed with a stamped signature. Even better, the while it's hard to see here, the signature is actually a stamp!

The moral, just because your bank says nasty things on the phone and an attorney files a piece of paper, that does not mean that they are really ready to claim that what they are saying is true, and if you look closely you'll see it too.

Just motion to dismiss is not enough

RandPeacockPA — Mon, 14 Jun 2010 22:27:00 GMT

"What do you mean they can just move for a summary Judgment even though I have not answered the Complaint or had my Motion to Dismiss heard yet!?!" This is a recurring question brought up to me during consultations and even some of my follow- ups with existing clients..

Yes, in Florida, a party can move for Summary Judgment, and obtain a foreclosure judgment before the opposing party has even had their Motion to Dismiss heard. This is just another proof that defending your house takes a lot of work and legal experience.

Florida Law allows either party to move for Summary Judgment. When filed by the Plaintiff and granted by the Court, a Judgment ordering the sale of the house can be obtained even when a Motion to Dismiss has been filed but not heard. The standard for this is very high though, meaning that the bank has a much higher burden of proof. While in theory a judge should not grant these so long as a valid defense or issues of fact exist, in practice Judges are looking for something concrete from a defendant homeowner to stop the banks railroad.

It does not have to be much, but it does have to be based on something real, preferably from the banks own records, and something other than what you've read, say or think. An affirmative defense, with supporting affidavits, a valid ongoing discovery effort. Once one of these is put in the courts’ record (not simply spoken at the hearing for Summary Judgment) a court, by law and rules, should not grant the summary judgment and let the case move forward to trial.

However, none of this is in a Motion to Dismiss. All a Motion to Dismiss does is allow a party to bring irregularities in the complaint before the Court to see if the Judge will make the Plaintiff correct them. Case law strongly discourages judges from outright dismissing a case, and encourages them to give the Plaintiff's a few times to amend their complaints and correct the issue first.

Also, the Judges are restricted to reviewing the four corners of the complaint and taking whatever allegations listed there as being true. So, as long as the Plaintiff complies with the Rules of Civil Procedure and does not plead facts that conflicts with each other , a Judge has to take them as true.

Add to this requirement to take all non-conflicting facts as true, the recent pattern of attorneys and pro-se homeowners doing half hearted defenses by filing motions to dismiss, often copied from a book or the internet (trust me the Judgesrecognize them all) that in many cases cover issues that are just not going to be applicable in a Motion to Dismiss but are simply issue spotting for latter defensive efforts. Judges have gotten rather numb to this approach and would rather see you get up and fight for your house or get out of the way.

Defending your house takes work, discovery, motion practice, hearings, and more work, discovery, motion practice, hearings. It does not take a single motion and then wait and hope for the Judges to "get it" and see things your way.

Shopping for an Attorney

Defending your house in a foreclosure is a BIG project. It takes a BIG effort and a LOTS OF commitment. Unless you are prepared to spend a good portion of your life at the local law library and catch up on the last 60 years of evidence, Uniform Commercial Code, Title, Real Estate, Foreclosure and general trial practice law along with keeping abreast of all the latest developments in this newly dynamic subject, YOU NEED A LICENSED ATTORNEY!

However, not all attorneys are equal. Even the sharpest criminal attorney may be flat on commercial and contract law. An attorney with years of experience closing real estate deals may not have a clue when it comes to securitization. A corporate attorney with decades of experience drafting contracts and business negotiations may have not seen a courtroom in as many years and only talks with Judges at local functions.

In short, you need an attorney who both understands foreclosures, the current crisis, consumer law and litigation. Most important, in my opinion, that attorney needs to relish going to the courtroom, and be able to engage in discovery and not avoid it.

If there's one thing that bugs me more than the banks and the foreclosure mills that are eroding our courts everyday it's the Attorneys who take on cases and do nothing other than file a few letters and maybe a motion.

Like the bottom feeders who offer foreclosure avoidance assistance and drain homeowners precious resources in what often turns out to be fruitless efforts to get modifications that banks are not offering, these false defenders charge top dollar and do little more than what homeowners could have done for themselves.

Here are some things to ask for and make sure of when talking with an attorney about foreclosure defense. All of them should be asked and answered before you decide to sign. If you don't understand the answers you are given, ask again:

A consultation should inform you of your legal rights and clarify what the attorney will or will not do for you. You should leave the meeting with a clear idea of the attorney is willing to do in your case, and if the attorney is willing to take your case a written contract to review before you pay any money.
From the beginning you should know and understand how much will cost to hire the attorney and what does that get you. Retainers, unless otherwise stated typically cover a defined amount of the attorney’s time, or their work to a specified point in the proceedings. Unless specified in writing the payment of a retainer does not automatically mean that an attorney will do all the work of the case (like going to trial for example) without getting paid more.
What will be the cost of going to trial? An attorney may not be able to give you an absolute answer but the attorney should, in accordance to the Florida Bar rules give you the formula by which her or his fees are calculated. The attorney should also be able to give you estimates as to how much time or money your case may require if gone that far. While these figures are by no means definitive, any attorney who states that all you'll have to spend is $1,700.00 for the complete defense of your case is either not telling your something or simply not planning on doing much in your case.
WHAT IS THE DISCOVERY PLAN! Any attorney you hire should be both prepared to explain what discovery she or he will be seeking, how they will be seeking it and, as stated above, approximately how much it might cost in additional legal fees to get it. Discovery is the procedure by which both sides in a lawsuit "discover" and exchange information that supports or weakens their respective claims and defenses. This can include interrogatories, request for production, depositions, subpoenas and various other methods. THIS IS A REALLY BIG DEAL IN FLORIDA AND CANNOT BE OVERSTATED BECAUSE JUDGES WILL HONOR VALID REQUESTS.
What is the litigation plan? What is the attorney prepared to do in your case? Motions, Mediation, Summary Judgment, Trial and even smaller hearings in-between. All of this happens in almost every litigation and in a spirited serious foreclosure defense should happen in your case too. If an attorney's contract or services do not include these then you should be weary and look elsewhere.
Ask if your attorney will be present physically at all or most hearings. It' makes a difference.
Do you have to be there? Always, find out when your attorney needs you to be present, even if it's just knowing what hearings or meetings are important. Failure to respond, participate or otherwise co-operate with your attorney is a valid reason for your attorney to drop you as a client, and if a retainer is non-refundable, too bad for you. I don't expect clients to be at every hearing but I do expect them to respond in a reasonable time and show up at trial and depositions. Other attorneys will have their own standards. Know them.
Last, what if you do not want to take a banks offer? Make sure your attorney is not going to insist that you take any offer that the bank offers and that the attorney will continue to represent you if you chose to reject any offers. An offer should be something that even if not exactly what you want, you can afford and be able to actually do. If you can't make the payments then the offer will only delay the loss of your house and probably strip you of the chance to have your day in court over other valid defenses. If you need your day in court because you just cannot afford what the bank is offering then your attorney should not be fixated on you taking the banks offer instead of fighting for your legal rights.

Things to keep in mind if you're trying to get a modifiction

RandPeacockPA — Tue, 11 May 2010 03:09:00 GMT

Why pay for what you can do yourself?

If you are in pre-foreclosure, or facing any of the following:

Have a loan that is going to adjust to an unsustainable payment,
Having troubles making your current payments due to a job loss or similar negative impact to your income,
Or simply want to reduce your current loan in light of the recent crash in real estate prices,

DO NOT, UNDER ANY CIRCUMSTANCES, PAY TO HAVE SOMEONE HELP YOU RENEGOTIATE YOUR LOAN!

Why? Well in addition to being very expensive at a time when money is probably more scarce and precious to you than ever before, you can do just as good a job yourself in most cases and may even get better results.

It's important to note that in writing this I want to make clear that I'm not advocating that it is just that easy nor am I printing some magic formula known only to professionals and insiders. In many cases loan modifications are not -and will not be- offered no matter who negotiates them and what is offered.

When trying to obtain a renegotiation , you will probably be ignored and sent on exhaustive efforts to re-produce documents and letters all seemingly to no avail. Here's the secret, it's not just you. The lack of success of the various modification programs is by itself evidence of the low chances available to obtain such type of new agreements. . However, it never hurts to ask and try. If you succeed and in turn you save several hundred or even thousands of dollars otherwise used to hire an attorney to defend a foreclosure, all the better.

Also, I am in no way advocating that anyone should purposely not pay their mortgage unless they have no choice in the matter. Yes, it is probably true that if you don't stop paying the banks are most likely not going to want to work with you. Yes, it is probably true that the government is not going to come up with any meaningful relief or program that a bank is required to accept any time in the future. So, yes if you're still paying your mortgage you might be wasting your time. But again it can't hurt to try, and if they tell you "No" you'll know where you stand with this option and can move forward, whichever way, with a clear conscience.

Also important, if you can afford to pay your mortgage and just are unhappy with your loan, or with the fact that your house is upside down, or that the rest of the country appears to be asking for a modification so why not you, YOU SHOULD NOT STOP PAYING ON YOUR LOAN. Sorry, not a good idea and certainly not something to consider lightly. I say this not just from the very real ethical and professional requirements of an attorney but also for the very real ways such a course will affect you and your family's life, including but not limited to:

Your credit will be fully in the tank for a very long time, and should a foreclosure be filed it will be permanently on your record and a bankruptcy will not remove it.
Because your credit will be so bad even low end or high interest consumer credit, such as auto loans (new or used), store credit, and even business loans unrelated to your personal house will likely be denied to you.
Also, the credit crunch can affect and restrict your employment qualifications, which is particularly true for government, insurance and many sales jobs.
In all likelihood the bank will file a foreclosure on you anyway because they will not or cannot offer you a modification.
If you appear on paper to be able to pay your loan and you have no real hardship you will be negotiating in bad faith (absent some other legitimate issues such as a valid RESPA violation or a Truth in Lending Claim) and in a subsequent foreclosure defense this could reflect negatively on you with the Court.

If you can't pay your mortgage, including not being able to pay it without draining your savings (particularly 401K, or IRA accounts which might be protectable from bankruptcy) or taking food off your table, then you probably should be making hard decisions now while you're seeking a modification. I and many attorneys offer free foreclosure consultations these days and you should not be afraid to seek advice.

So, how is it done? Well, you can do just what the modification companies do: make a phone call and send certified letters. Yes, that's right. In most cases all you're getting for your money is someone spitting out a letter (probably copied off the internet or better yet from HUD or the bank itself) asking for a modification. Here's the sad part, in many cases (and I'm basing this off of the cases that have come across my desk from clients who have had prior "help" with a pre-foreclosure modification company), they will send 2-3 letters, at most. These letters inevitably include a RESPA letter, which anyone can download from the HUD website, and should be sent by the home owners themselves and not by a third party. In some cases they even document a few attempts to make a phone call or two. You're probably thinking, "I could do that!" You're right.

In truth most loan modifications are not accepted or even reasonably considered not so much for how they were submitted or what was said in negotiations but based on reasons known only to the banks. However, I'll give some tricks that will both give you a better chance in negotiations and also help you document your efforts because you never know what might turn into a defense should the case go to foreclosure.

Research
Do the Math
Be Honest with yourself
Negotiate the Loan and not the Payment
Start the process as Directed by your banks posted procedures
Get a case number
Follow up all calls with a letter, and sent it certified with return receipt
Keep copies of everything you sent
Make them give any agreements to you in writing
If you have stopped paying on your mortgage do not make additional payments or partial payments until you have an agreement in writing
If you have to faxany documents, make sure you can keep a fax confirmation page
Send copies of what you send to the bank to the place where you send your payments and even the address listed on the closing documents for the loans
Be persistent and expect a lot of frustration
Keep a log of every conversation you have, write down names, titles, numbers, dates and duration of call.

First, research, research, research! Go to HUD, go to the Making Homes Affordable website , go to Freddie Mac and Fannie Mae's website, and go to your bank’s website as well. Go and find out what programs are out there. Your best option will most likely be the Federal Programs, such as the current HAMP Program. However, the bank may have a few other programs of their own. Print them out, if you're not good with math get a friend who is and see how it works. This way you know which ones to ask for and which ones not to waste your time with. I'll caution that while there has been much talk of reducing principal, that is not a very likely outcome so if that's what you'll need I would advise not to put many of your emotional eggs and hopes in that basket.

In this research, the important thing to grasp is the payment zone that you will most likely fall into. Most of these programs, like HAMP, have the goal of only reducing the payment to a portion of your income that you can manage, not to change your loan into a better loan. Many also require that the amount you pay will go up progressively until such time as you're paying close to your current monthly payment. In short, they are temporary help, hoping that the real estate market comes back up, or that your income recovers and you don't have to move,.

So, if for example you cannot afford to designate 1/3 of your income to paying your mortgage then even if you get a HAMP modification you won't be able to take it because that is exactly the rule of thumb that the program uses. Once you know the program’s stated guidelines you can estimate what you can ask for.

Be Honest with yourself. If you currently have lost your job, or your occupation is tied to an industry that is not going to make a quick comeback, you are not going to look very credible asking the bank to make a modification which you can't afford right out of the starting blocks. The best you might be able to get is a temporary reprieve for a few months while you take on new employment. Also, many of the more creative old school negotiation ideas, like refinance, co-signer, 2nd mortgager stepping in and buying off the first mortgage and then coming to some better deal are not going to happen. This is because right now the old school calculus for home mortgages is out the window. Your house is most likely upside down and Congress has mandated that banks no longer make risky loans. Even a pawn shop would not give you $10 for a $9 ring, no matter how special it is to you. The same applies to banks and your house.

So, assuming you think you can qualify for a program and feel like you can keep the house under its current conditions, you make your offer. However, you need to have it all planned like if you were negotiating the loan again for a refinance. How much the is theproperty worth, how much you have, how much you make, how much will it cost?

Of course, you will need documents to back it up. Have your taxes and insurance and be prepared to add 1/12 of the total of the two to your new payment. All modifications will require you to escrow if you're not already doing so. If this is too high, see what you can do to lower either one by taking on a higher deductible or talking to your local tax appraiser's office. Every penny counts!

When you make your first call make sure you ask for a case number. This is your unique identification so every time you call again, and every letter you send can be related to your case. Also, be prepared to answer the questions you will be sked. If you do not have the information, write it down so you can find it. Try to establish a follow-up date and be ready to follow it. Afterwards, make sure you've written down everything and send a letter confirming all the details of the conversation, filling in any additional information and providing all requested documents.

As for documents, you're going to need to make nice clean copies. Even if you fax it over, mail copies of the documents as well, attention to whomever you were directed to send them to.

As for mailings, you should always send them certified return receipt mail, with signature confirmation by US Postal. This is the green forms and little green postcards at the post office. The postman can help you. Make sure your letter references the certified mailing number (the number attached the US Postal form that attached to the envelope) and make sure you put your case number on the return receipt and certified form. I also recommend getting your receipt postmarked at the post office when you you’re your documents (don't just put on the correct postage, fill out and attach the forms and put it in the mail box). This gives you a record not only of mailing the letter, but also of their receipt and a neat little signature of the person accepting it. Make sure you keep a copy of what you mailed and when the green card comes back staple it to the letter.

How do you write a hardship letter? Just be honest. Explain why the situation has changed and why you can't get back to where you were. There's no magic to it and the Federal guidelines at least do not preclude people with temporary vs. permanent changes in their income.

Finally, expect frustration and problems. You'll have to keep calling, keep mailing and keep working the system and maybe you'll get a modification. If not, do not let it get you down but be prepared emotionally for the next step.

I write this post not to either discourage nor to encourage people to make applications for modifications. I would never promise a client that any method would be more likely to work than another. In the end, remember you are dealing with a faceless and distant entity, and that in order to succeed whatever tangled bureaucratic structures have been erected must agree to your request. No matter how logical your case might seem to you, a "No" may be inevitable for reasons you could never know or they would never say. However, if by writing this I have spared but one family or individual from throwing good money after bad in an attempt to save their house by paying some "mortgage modification" operation then this long letter is not in vain.

Great Article about modification fraud

RandPeacockPA — Tue, 11 May 2010 03:03:00 GMT

This is a great article that everyone should read: "Warning Signs of Loan Modification Fraud". It makes reference to a sad (but all too often true) story that anyone facing a foreclosure or simply looking for relief from a modification should take heed from.

http://www.loansafe.org/warning-signs-of-loan-modification-fraud

The questionable actions of several of these modification companies have hurt the individuals who participate in their programs, and they have tarnishes the public opinion towards good, honest attorneys who are working to help people save their homes through legitimate defenses and counterclaims.

All too often families, thinking they can't afford to talk with an attorney, or looking for an insider edge, seek this non-licensed help. Then, when the poor advice leads inevitably to a stranger arriving at their door and handing them a summons and foreclosure complaint they find themselves both financially drained and gun-shy on seeking outside assistance. It is a true shame.

Talk to a licensed attorney in your state. If you can't find one you can afford do not be afraid to talk with your local Legal Aid Office.

Welcome to my Foreclosure Blog

RandPeacockPA — Wed, 28 Apr 2010 00:13:00 GMT

If you are like most of us finding this new world of foreclosure crisis, mortgage back securities, credit default swaps and vacant properties unfathomable, if not outright alien then let me assure you that you are not alone. If you, or a family member, friend or co-worker, like most of us, upside down on your property and in a financial crisis yourself, know too that in this you are not alone. Finally, if you are either in foreclosure or attempting to negotiate with your bank but not able to talk to the same person twice, let alone make any progress, here too you are not alone.

You are why I have made this site. A place where I can voice my concerns, hear yours and where possible give answers and information that can lead to hope and possible progress. At least as fare as foreclosures go.

I am a Florida Licensed attorney and my first bit of advice to anyone is to seek the advice of competent legal counsel if you are facing these and other legal issues.

I look forward to hearing your questions as well as sharing what I can.

FORECLOSUREBLOG.PEACOCK-LAW.COM

Florida Foreclosure News Beat for Tuesday, Friday, October 14, 2011

Today's Florida Foreclosure News!

Property foreclosures jump in SW Florida, October 14, 2011, Miami Herald

Naples lawmaker proposes foreclosure reform bill, October 13, 2011, By Elizabeth Billingsley

CFPB To Examine Banks With Focus On Troubled Loans, October 13, 2011, By Ronald D. Orol, Fox Business News

Is your house worth unlicensed legal advice?

Florida Foreclosure News Beat for Tuesday, Monday, September 19, 2011

Mired in Foreclosures, By JESSICA SILVER-GREENBERG, The Wall Street Journal

Gov't role as ref and player in financial market causes conflicts, September 12, 2011, by Jonathan Weil, for Cincinnati.com

Florida Foreclosure News Beat for Tuesday, Tuesday, September 13, 2011

Gov't role as ref and player in financial market causes conflicts, September 12, 2011, by Jonathan Weil, for Cincinnati.com

Florida Foreclosure News Beat for Tuesday, Monday, September 12, 2011

Don't look for real foreclosure help in the Jobs Plan

Florida Foreclosure News Beat for Tuesday, Friday, September 09, 2011

Balky banks gum up foreclosure courts, benefiting some owners - St. Petersburg Times September 7, 2011, By Susan Taylor Martin, Times Senior Correspondent, St. Petersburg Times

With Prices Up and Foreclosures Down, Housing Remains Fragile, September 6th, 2011, by Elizabeth Ecker Published in News, Reverse Mortgage

U.S. banks offered deal over lawsuits: report, September 6, 2011 , by Stephen Mangan in London and Dave Clarke in Washington D.C.; Additional reporting by Sakthi Prasad in Bangalore; Editing by Matt Driskill, Reuters

Florida Foreclosure News Beat for Tuesday, Thursday, September 08, 2011

Balky banks gum up foreclosure courts, benefiting some owners - St. Petersburg Times September 7, 2011, By Susan Taylor Martin, Times Senior Correspondent, St. Petersburg Times

With Prices Up and Foreclosures Down, Housing Remains Fragile, September 6th, 2011, by Elizabeth Ecker Published in News, Reverse Mortgage

U.S. banks offered deal over lawsuits: report, September 6, 2011 , by Stephen Mangan in London and Dave Clarke in Washington D.C.; Additional reporting by Sakthi Prasad in Bangalore; Editing by Matt Driskill, Reuters

Bank of America doubles foreclosure filings in South Florida, September 1, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

Florida AG under fire for terminating employees, September 1, 2011, by GARY FINEOUT, Associated Press, Printed in Miami Herald

Tying Health Problems to Rise in Home Foreclosures, August 31, 2011, S. Mitra Kalita, Wall Street Journal

Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit, August 25, 2011, Naked Capitalism blog

Kudo's to Ice Legal and its appealte victory LASALLE V. GLARUM

Here's an important issue for everyone who's looking for help defending their house or modifying their loan.

Florida Foreclosure News Beat for Tuesday, Wednesday, September 07, 2011

Please sign this petition against the Florida Fair Foreclosure Act

Florida Foreclosure News Beat for Tuesday, September 06, 2011

· Bank of America doubles foreclosure filings in South Florida, September 1, 2011, Brian Bandell, Senior Reporter - South Florida Business Journal

· Florida AG under fire for terminating employees, September 1, 2011, by GARY FINEOUT, Associated Press, Printed in Miami Herald

· Tying Health Problems to Rise in Home Foreclosures, August 31, 2011, S. Mitra Kalita, Wall Street Journal

· Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit, August 25, 2011, Naked Capitalism blog

Here they go again, now with the Florida Fair Foreclosure Act

Things to keep in mind with your Florida foreclosure

Sometimes they make it too easy

Just motion to dismiss is not enough

Things to keep in mind if you're trying to get a modifiction

Great Article about modification fraud

Welcome to my Foreclosure Blog