Transcript Document

Niurka Fernandez Asmer, Esq.
Judicial foreclosure in the State of
Florida
• Law suit is commenced by the filing of a Complaint and recording
a Lis Pendens
• Lis Pendons notifies the world that a foreclosure is commencing
on property.
• The lender has the burden of proving it has the right to force the
note and mortgage against the property.
o
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The nature and amount of the default
Satisfaction of conditions precedent
• Attorneys must carefully review the note and mortgage to
determine whether the current lender has standing to sue
Pleadings and PracticeThe
Summons and Complaint
• Attorneys must carefully review the note and mortgage to
determine whether the current lender has standing to sue.
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Is the original lender listed on the note and mortgage, the plaintiff suing
your client?
If they are not the original lender, was the note endorsed over to the
Plaintiff?
 Was it a blank endorsement or was it endorsed to the Plaintiff
 Who signed the endorsement?
 Robo-signers? Look online for large bank robo-signers.
o
Is there an assignment of mortgage?
 Look to see if an assignment was filed and recorded?
 Was it mentioned in the complaint?
 When was the assignment signed? Was it properly recorded and notarized?
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Who has your client in making payments to?
Has the lender filed a “Lost note” count in the Complaint?
 Look to see if they assert they are the owner and holder of the note. How can they be if
they lost the note?
Pleadings and Practice Motion
Practice
• Motion to Quash Service
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Several times your client will not be properly served.
Look to see who the process server is. Plaintiff’s counsel may own the
company.
See Rule of Procedures 1.070 and 1.080
• Motion for Enlargement of Time
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File a Demand for Written Verification of Debt pursuant to the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq. and a request
for production of documents.
 Collection process stops until verification is provided.
 Base your enlargement of time on this request. They must comply.
 You are disputing the amounts claimed owed in the Complaint.
Motion Practice Cont….
• Motion to Dismiss
o
Failure to post non-resident cost bond.
• File Notice of Recession under the Federal Truth in
Lending Act, 15 U.S.C. §1635 and 12 C.F.R 226.23 and
the Florida Fair Lending Act Fla. Stat. §494.00792(d)
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Must be done within first 30-days of the lawsuit being filed.
Do this immediately.
Motion Practice Cont…
• Motion to Set Aside Default
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9/10 times your client will wait months before retaining counsel.
A default is entered and needs to be set aside.
Must attach an affidavit from you client as to why they failed to
timely respond to the complaint.
Fla. R. Civ P. 1.160
If at MSJ the Plaintiff failed to issue a default, Judge will usually
not enter judgment.
 File an answer with affirmative defenses or response to complaint
with Motion to Dismiss and file objections to MSJ
Motion to Dismiss
• Lack of Standing
o
o
Is the original lender listed on the note and mortgage, the plaintiff suing
your client?
If they are not the original lender, was the note endorsed over to the
Plaintiff?
 Was it a blank endorsement or was it endorsed to the Plaintiff?
 Who signed the endorsement?
 Robosigners? Look online for large bank robo signers.
o
Is there an assignment of mortgage?
 Look to see if an assignment was filed and recorded?
 Was it mentioned in the complaint?
 When was the assignment signed?
 Was it properly recorded and notarized?
 If Assignment filed AFTER complaint, no standing to sue.
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Who has your client making payments to?
Has the lender filed a “Lost note” count in the Complaint?
 Look to see if they assert they are the owner and holder of the note. How can they be if
they lost the note?
 Was the note attached to the complaint. Must be if they have it.
Answer & Affirmative Defenses
• General denial of allegations regarding lost note is not
enough.
• Defendant must deny lost note allegations
• You may file a counterclaim with the affirmative defenses
because the lender then cannot take a voluntary
dismissal without court order and the SOL may expire for
the TIL claim. You also have more control of the lawsuit.
Answer & Affirmative Defenses
Cont…
• Accounting
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Banks are the worst at keeping track of their payments.
Saxon mortgage and Wells Fargo Loans in particular.
• Loan Modification
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Was the client in a loan modification when the complaint was
filed.
Where they making their trial payments or awarded permanent
loan modification?
• Partial Payments
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Did the Bank collect partial payments after the initial date of
default?
• Fraud in the Inducement
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Did the Defendant get TILA disclosures?
Must be specific with Facts to allege fraud under Rules of
Procedure
• Failure to disclose the whole truth
• Unclean Hands
Answer & Affirmative Defenses
Cont…
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Bank’s Fraud rendered a deficiency judgment invalid.
Mortgage and note are voidable due to misrepresentation
Overreaching created unjust and undeserved advantage.
Improper Notarization of mortgage and note
Bank failed to mitigate damages
Bank fraudulently induced Defendant not to make
payments in the hopes of loan modification.
Discovery
• Propound Interrogatories and a Request for Production.
o
Bank’s are swamped with litigation and will take forever to
produce these documents.
• Also serve a Notice of Taking Plaintiff’s Deposition Duces
Tecum. Gives more control over the case.
• Usually lender will call you and ask:
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What do you really want? Extended Sale date?
 Waiver of deficiency
 Rescind for client
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Can I have more time answer
Can I have more time to find you a witness?
 Answer to both above: Sure, as long as no dispositive motions are
set for hearing. After, I take the bank’s deposition and avoid an
expedited deposition fee.
Discovery Cont…
• Lender’s deposition
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Preserve it for trial.
75% of the time they are not available for trial and will settle the
case.
However, rep usually doesn’t have the info you need or the
documents you’ve requested.
Lender will usually admit that they did not verify the documents
attached to compliant or exhibits attached to affidavits in support
of MSJ.
• Closing Agent Depos
• Mortgage Broker Depos
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Very rare to depose these individuals.
Usually say “I don’t remember. It was years ago.”
The key is what was given to the client at Closing
Compare the documents in all the closing packages: Lenders
underwriting, closing agent and mortgage broker.
• Client’s deposition
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Very important if the case turns on what was provided at closing.
Motions to Strike
• Lenders counsel may move to strike your affirmative
defenses. Set it for hearing!
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These motions are usually not well taken and prolong the case.
• Two Rules: 1.140 (f) and 1.150
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A party may move to strike redundant, immaterial, impertinent, or
scandalous matters
Sham pleading: request the court to hear motion, take evidence.
Motion for Summary Judgment
• Rule 1.510: it will issues the best in the slightest doubt
remains, the court must resolve the doubt in favor of the
non—moving and deny summary judgment.
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Manning v. Clark, 71 So.2d 507 (Fla 1954),
• The facts are undisputed the conflicting issues arise over
the inferences, the court must deny summary judgment.
o
Distribution company v. Sav-A-Stop, Inc. 124 So.2d 753 (Fla. 1
DCA 1960)
Motion for Summary
JudgmentObjections
• Be mindful of timeline deadlines pursuant to Rule 1.510
(c.).
• Bank’s attorney will file MSJ, usually including the affidavit
of the servicing agent who has reviewed the file, many
times not attaching the documents that he is a testing are
true and accurate.
o
Argument: The affidavits are hearsay and lacking foundation or
predicate because the Afghan in summarizing the legal import of
documents, usually trust agreements and servicing agreements
without attaching copies.
Motion for Summary Judgment
Objections:
• Standing:
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Does the lender have the original note? If not, have they properly
reestablished it under Florida Statute
Has the Plaintiff filed an affidavit of lost or stolen note? Look to
see if the proper plaintiff is signing the affidavit.
• Assignments:
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Was the assignment properly recorded and notarized
When was the assignment recorded, if it was recorded?
If After to the law suit was filed, they do not have standing to sue.
Must refile the case.
• Endorsements :
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Was the note endorsed in blank?
Look to see who signed the note. Research on the internet who
this person is and if they’ve admitted to be a “robo-signer”
• Allonges:
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Was the allonge signed by a bank representative?
Usually these allonges are prepared by Plaintiff’s law firm and
Motion for Summary
JudgmentObjections
• Plaintiff has not properly reestablished the note
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Cannot reestablish a negotiable instrument under Fla. Stat.
71.011. Must be under Fla. Statute 673.3091 and person suing
to foreclose must have the right to foreclose and reestablish
when he files the lawsuit.
Post lawsuit, assignments establish the lender did not own at
time of suit unless pre-suit equitable assignment.
 Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999)
 National Loan Invest. V. Joymar Ass., 767 So. 2d 549 (Fla. 3rd
DCA 2000)
 State Street Bank v. Lord 851 So. 2d 790 (Fla. 4th DCA 2003)
Motion to Strike Final Judgment
• Your client may have just realized they are being
foreclosed on. Why?
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Failure to properly serve.
Mistake, error or newly discovered evidence.
• The note properly reestablished?
• The affidavits filed in support of MSJ are fraudulent.
Executed by Robo-signers
• The assignment of mortgage is invalid and Plaintiff has no
right to foreclose.
Objection to Sale
• Certificate of title issued on the date of sale. You have 10days to object to the sale.
• Title does not pass to the bank until the Certificate of Title
is issued by clerk and recorded.
• During that 10-day period, the Defendant may object to
the sale pursuant to §45.031 (5), Florida Statute
• The purpose of §45031 (4) Fla. Statute, is to afford a
mechanism to assure all parties and bidders to the sale
that there is no irregularity at the auction or any collusive
bidding, etc. Emanuel v. Bankers Trust Co., 655 So. 2d
247, 249-50 (Fla. 3rd DCA 1995)
• “If a party files an objection to the foreclosure sale and the
court determines there is a valid basis for the objection,
the property is re-advertised and resale begins anew.
Upon the re-advertisement and resale, a mortgagor’s lost
Objection to Sale
• If your client is still in the house, the bank or 3rd party
purchaser MUST file a writ of possession with the clerk
and the sheriff will remove them.
• Valid basis for objection to sale:
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Current in loan modification with lender in review. Lender stated
they would not foreclosure during loan modification review.
The 3rd party purchaser or bank has changed the locks on the
Defendant’s property thereby denying access to the home to
remove their personal property.
There was fraud involved in the sale at auction.
Foreclosure Alternatives
• Need to determine what your clients’ goals are.
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Keep the home?
Strategically default
Short sale
• Consider client’s financial condition
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Can they afford the home?
Do they qualify for a loan mod
Have they experienced a financial hardship?
• Prepare your client for the hard truth based on the
financial data you’ve reviewed.
Foreclosure Alternatives cont…
• Loan Modifications
• It’s a numbers game!!!!
• Don’t promise your client’s a loan mod.
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Must review their financial information.
Pre-qualify your client's on the phone with the lender before
taking on this task.
• Do NOT tell your client's to stop paying their mortgage in
order to qualify for loan mod!
Foreclosure Alternatives cont…
• HAMP: Obama plan or “making homes affordable.”
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Primary residence. Must be living in the residence
Mortgage pre- January 1, 2009
Total mortgage payment exceeds 31% of gross monthly income
Owes less than $729,750.00
Has a documented financial hardship.
• Must complete a 3-month trial period.
• Investors govern whether to approve loan mod.
• Foreclosure SHOULD be suspended, but normally is not.
Foreclosure Alternatives cont..
• Internal Modification:
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If client does not qualify for HAMP, lender will run application for
internal modification.
If they default on HAMP, client will be reviewed for internal
modification.
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RARELY Reduces principal balance.
Reduce interest rate
Extend term to 40 years
Forgive arrearage-not normally. Will be put on the tail end of the
mortgage
Foreclosure Alternatives
• Mediation
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Client has the right to mortgage mediation during the first 120days after the complaint is filed.
This is a glorified loan modification.
Each county has RMF program
 Hillsborough County:
 Hillsborough County Bar Associations
 Pinellas & Pasco County;
 Mediation Managers, Inc.
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All communication is confidential. Make sure you go through the
roll call at beginning of mediation to determine bank has full
authority to settle and all documents were produced.
Foreclosure Alternatives cont…
• Deed in Lieu of Foreclosure
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Investor must offer to client.
Title must be clean. No 2nd liens or mortgages
Cash for Keys if lender wants to negotiate a settlement
• Short Sales
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This is also a numbers game.
10% contribution for investment properties
Investor determines contribution at closing if primary residence
based on client’s financials and hardship.
You must be a licensed attorney to conduct a short sale.
 Recent article publish by the Florida Bar.
 Legal and tax advise must be provided to short sale Client.
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Waiver of deficiency-make sure it is contained in acceptance
letter.
Property must be listed for 3-months prior to SS approval.
Short Sales cont…
• Tax implications
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DO NOT GIVE TAX ADVICE! You are not an accountant.
Put it in your retainer agreement that you cannot give tax advise.
The lender will issue a 1099 for any debt forgiveness.
 See Mortgage Debt Relief Act of 2007 forgives “phantom income”
 Applies to primary residence only.
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The IRS treats as income.
Cannot have a 1099 issued and later collect on deficiency. One
or the other.
Bankruptcy
• Must reside in State where you file.
• Can only file Chapter 7 every 8 years, chapter 13 every 6
years (certain exceptions).
• State law applied for residency during previous 180-days
of domiciliary.
• Take credit counseling course
• Means Test-looks at 6 month average of all household
income to determine whether debtor may file Chapter 7 or
Chapter 13.
• Automatic Stay: once you file, all collections cease and
desist. Violations award sanctions
• Reaffirm secured debts (car or house). Beware!
Bankruptcy
• Chapter 7:
o Complete discharge of all debt including deficiency and
judgments.
o Lien is still valid and lender can continue foreclosure.
 If client surrendering property, lender will seek to lift
stay.
o Not given an opportunity to catch up on mortgage
arrearage.
o Do not file bankruptcy JUST because there is a
foreclosure on client’s credit. There should also be
unsecured debt.
o Client should be aware that even after surrendering the
property in BK, they will still be title owner of property and
responsible for any debts incurred after the bankruptcy
petition is filed (HOA, condo dues, etc..)
 Suggest the client short sale the property. Lender will
Bankruptcy Cont…
• Chapter 13: personal reorganization
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If income exceeds family median income test, you will be put in a
Chapter 13 plan to pay a % of debt based on DMI
Feasibility test: Must be able to make payments proposed by
attorney and confirmed by the Trustee.
Able to pay mortgage arrearage over 3-5 year period.
Can strip off 2nd mortgage liens.
Can cram down mortgage note to fair market value of property
only on investment (also on vehicles).
Debts are capped: $336,900 for unsecured debt and
$1,010,650.00 for secured debt.
 Problem for debtors with several properties who want to keep their
investment, but cannot due to cap.
 Usually advise short sale of some properties before filing BK
Ethics
• Defense attorneys must be alert of sloppy work by Lender
and their counsel.
• Two law firms have gone under due to fraudulent filings in
open court
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Ben Ezra Katz
Law office of David Stern
• Courts are issuing sanctions against the attorneys and
banks for sloppy paper work.
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Look at the affidavits?
Is the complaint verified ?
Have defaults been entered against Defendants?
Fla Bar has issued new rules, which obligate Plaintiff’s counsel
to notify the client of improperly executed documents and
provide them with a chance to correct. If not the lawyer is
obligated to notify the court.
Ethics cont…
• Competency
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Legal knowledge
Skill
Thoroughness
Preparation
• Fl Ethics Rule 4-1-1
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By taking this course, all are furthering knowledge
Enlist an attorney with knowledge in this field
Evaluate the complexity of the case. If not up to it, get out!
Ethics Cont….
• Frivolous Claims and Defenses
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Do not file pleadings without having evidence to back up your
facts.
Plaintiff counsel are now filing Section 57.105 sanctions against
defense attorneys for filing frivolous pleadings as well.
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Delay for sake of delay
Frivolous claims or defenses
Lack of candor
Falsification of evidence (mostly plaintiff’s issue)
Loan Modification Scams
• FTC and State Attorney General are cracking down on
loan mod fraudscams
• Only an attorney can collect fees up front for loan mod.
• NEVER promise your client a loan mod. You cannot
guarantee this
• NEVER instruct your client to stop paying their mortgage
to get a loan mod.
• NEVER split fees with a non-lawyer.
• ALWAYS communicate with your cleint
Client Communciation
• Biggest complaint by Florida Bar is that the attorney does
not communicate with their clients.
• With today’s technology there is no reason why you can’t
fire off an email with documents received or a status
update.
• If you can’t return calls, schedule a telephone conference
when you are in the office.
Advertising….
• Fla. Bar rules regarding advertising have changed over
the last year.
• Internet recommendations must have a disclaimer at the
very top of web page or as a pop up.
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Must be the first thing the prospective client sees.
• Have all advertisement approved by the bar.
Fee Agreements
• ALWAYS have your client sign a fee agreement
• Lay out the terms and conditions of representation
• Amount of Fees and what case is covered by the fee
paid.
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Hourly
Flat Fee
Monthly
Mixed fee
Loan modification
Closing..
• Questions?