Attorney’s Challenge to Foreclosure Order Was Supported By Advisory Panel

Attorney's Challenge to Foreclosure Order Was Supported By The  Advisory Panel

An advisory committee to the Florida Supreme Court informed the Palm Beach Circuit chief judge that an administrative order that throws out certain motions in foreclosure cases as “abandoned” is a local rule. According to Florida Rules of Judicial Administration, a local rule is a rule of “practice or procedure” for trial court application only, because local conditions require. It provides an omission or facilitates an application of a statewide rule, but does not conflict. Local rules are authorized by the Supreme Court, not circuit chief judges.

The Palm Beach administrative order—which has a similar counterpart in the Miami-Dade Circuit that has only been challenged through individual cases to the Third District Court of Appeal—was challenged by a foreclosure defense attorney in Palm Beach County. He was represented before the Supreme Court Local Rules Advisory Committee by Thomas Hall, former clerk to the state Supreme Court and now an attorney with The Mills Firm in Tallahassee. “This opinion by the Local Rules Advisory Committee goes directly to the Florida Supreme Court, and the Supreme Court reviews the challenge and makes its own determination. But the committee exists to advise the Supreme Court about this sort of thing,” Hall said.

These abandonment rules have been watched closely by foreclosure defense attorneys and law firms representing the plaintiff mortgage lenders. “There are other groups, certainly legal aid organizations, watching it because they are providing defense in a lot of foreclosure cases,” Hall said. The administrative order, issued by Chief Judge Jeffrey Colbath in April, states motions in foreclosure cases that have not been set for a hearing within 10 days of filing, and have not been heard within 90 days of filing, are to be deemed abandoned.

Ice argued the order exceeds the authority of an administrative rule, since such rules are restricted to housekeeping chores. Further, the rule puts judges in the position of choosing sides because defendants, more often than not, are the parties filing motions to protect their interest. Plaintiff banks tend to be content to leave a case dormant until it is in their economic interest to move to a foreclosure trial. First District Court of Appeal Chief Judge Robert T. Benton II, committee chair, summarized Colbath’s defense of the administrative order in the committee opinion Benton issued Tuesday.

The Palm Beach chief judge claimed the order should be considered in isolation, and that it does not create a new procedure or rule, “but amounts to nothing more than authorization for case management by a trial judge.” Colbath told the committee that since the order applies to both sides it does not unfairly target homeowners. He said it was not a local rule because it does not apply to all proceedings, only to foreclosures, and it does not apply to all parties or attorneys, only those who fail to set motions in a timely fashion in foreclosure court.

“Finally, the chief judge emphasizes that a judicial determination of abandonment is not the same as denial of a motion or a ruling that a motion has been waived. The chief judge maintains that a party whose motion is deemed abandoned is not precluded from re-filing the motion,” Benton said. Even though the order only applies to foreclosure cases, Benton said it applies to all foreclosure cases, “and its scope, impact and seriousness militate in favor of review by the Supreme Court, in the opinion of the committee.”

Administrative orders, Benton continued, are appropriate for “housekeeping chores,” such as creating specialized divisions, assigning judges to particular divisions or court deputies to a particular judge. But Colbath’s order should be viewed as a local rule because it pertains directly to practice and procedure in the circuit, “even though it is not clear that the problem it addresses is specific to the Fifteenth Circuit.” Benton said the committee stands ready to address the merits of the dispute as the Supreme Court may direct.

Fourth District passes In addition to challenging the order before the committee, the Palm Beach County foreclosure defense attorney sought review by the Fourth District. But on Oct. 30, the Fourth District denied the petition. The attorney said that the Fourth District passed because it said his petition for review “is without prejudice to the aggrieved party.” He explained, “We didn’t wait for any actual rulings on any individual cases. If you are someone who lost their right, lost a motion because it was being abandoned, you can still appeal that. The court said we’re not going to strike it down in one fell swoop.”

He was concerned in May when he first challenged the order that if he were to wait until a judge made an abandonment ruling, that delay could later be interpreted as a timely error. “With the Oct. 30 ruling, we got the green light, in terms of the court clarifying, ‘No, you can appeal later,’” stated the attorney. Now that the committee has spoken, he said it should carry great weight with the Supreme Court, given the fact that the vote was unanimous. Of the eight judges on the committee, six voted with the Palm Beach County foreclosure defense attorney’s position and the other two were absent. Amy S. Borman, general counsel for the Palm Beach Circuit, said that because the advisory committee’s work is an active matter, the circuit cannot comment. She added, however, that the Fourth District’s Oct. 30 decision also had the effect of lifting the stay on Colbath’s foreclosure division orders.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

 

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Medical Debt Affects A Large Portion of Americans

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Million of Americans are having a hard time getting loans due to their medical bills bring down their credit scores.

In a new report of compiled data provided by the Consumer Financial Protection Bureau, close to 20 percent of U.S. shoppers are in debt due to unpaid medical bills.  Many Americans seem to be confused by the bills that insurance companies and hospitals are providing for the cost of their treatments. This confusion is causing lower credit scores and making it much harder for Americans to get loans for homes or automobiles. $1,766 is the average amount owed for people who only have pending medical bills. Those who have unpaid medical bills followed by additional debt such as a credit cards and such, average more in the $5,638. The majority of all debt in credit reports comes from unpaid medical bills.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Loan Modification Con-Man Gets Over A Decade In Federal Prison

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Justice is served after a group of cheats bamboozled thousands of homeowners who were trying to obtain loan modifications.

Jason Vitulano plead guilty and was sentenced to 11 years in a federal prison and ordered to pay restitution of $5.9 million dollars in a West Palm Beach Courthouse after running a boiler room scheme targeting troubled homeowners for mail and wired fraud. Between 2008 and 2009 the Boca Raton man who was operating boiler rooms would promise to attain loan modifications for homeowners who had fallen back of their mortgage payments by securing the fees upfront. There were nearly 2,000 victims, very few of which were actually provided with modifications, who paid well over $7 million dollars.

The Boca Raton man was the ringleader of a group of 10 other offenders all of whom plead guilty. This group of con artists deceived thousands of homeowners who were fighting to keep their homes by hustling money out of them with no fruit to their labor in the Boca Raton and Deerfield area. The man had two previous charges, one in Pensacola and the other in Palm Beach County for mortgage fraud. In the Pensacola case he was sentences to six years, which he will serve first followed by the 11 years on this new case.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Home Price Gains Have Slowed Down

Investors, Home Prices, Loan Modification, Short Sales, Saling Home, Foreclosure, Case-Shiller index, Miami's Housing Market, Mortgate rates

Nationwide, home prices have finally begun to level out after being driven up by investors.

September brought on the slowest rise in home prices while providing decent sale gains and more variety in sale inventory.  According to the Standard & Poor’s/Case-Shiller index of home prices in 20 major cities, September marked a 4.9 percent increase in comparison to a year ago but a 5.6 percent decrease compared to August.  For the first time in seven months the 20-city index was unchanged. Nine of the 20 cities dropped home prices in August. However, the index doesn’t adjust for seasonal elements such as the drop in temperature which affects sales.

In the past two years home prices have increased swiftly into the double digits. This is largely due to investors bidding up home prices but they have begun to slow down because there aren’t as many bargains.  To assist in keeping prices down, many homeowners have put their properties up for sale.  Lower mortgage and price gains have also allowed for the housing market to become more affordable. Throughout the country, during October there were 2.22 million properties on the market, which is an increase of 5.2 percent from last year. Numerous economists are thankful for the moderate gain after the turbulent downfall of the housing market and the double digit increases of 2012 and 2013.

The Case-Shiller index accounts for nearly half of all U.S. Homes. It measures prices and checks them with those in January 2000 to create an average of three months.  The latest figures are from September.  Out of the 20 cities, 18 of them had slower price increases during a 12 month period. Miami reported the strongest annual gain with 10.3 percent, with Las Vegas at its heels with 9.1 percent. September marked the first time the Las Vegas posted a price increase under 10 percent for close to 24 months. Redfin, a real estate brokerage, stated that Miami’s sales went up 21.2 percent last month.  This was the heftiest increase out of the 39 markets they track.

Potential buyers received yet another incentive, lower mortgage rates. 30-year fixed mortgage rates has decline to 3.99 percent from its 4.01 percent earlier in the year. Proof that the real estate market is picking up after the sluggish pace during spring time came in October where already existing home sales rose at its highest rate this year. However, because household incomes are not increasing as quickly as needed to adjust with inflations, it is making it particular hard for first-time home buyers to purchase. Many are being affected by the amount of student loan debt and are therefore just renting instead of buying. Last month along had only 29 percent first time buyers, which is well below the 40 percent they used to average before the housing market crashed.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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In October, Florida Had The Most REO’s In The Country

REO, REOs, Bank Repo, Bank Repossession, Property Repossession, Real Estate Owned, Repo Sale,

REOs were the highest in Florida during October of this year, although Maryland has the most foreclosure filings in the country.

Florida leads the states with the largest number of REOs, bank repossessions, in October 2014 according to RealtyTrac.  Maryland, however, has taken the lead in the highest foreclose rates of the nation.  There were 4,905 properties repossessed by banks in Florida, 2,000 less than that in California, Ohio came in third with 2,057, Illinois with 1,620, Maryland with 1,602 and four more states with more than 1,000 REO’s in October. Although The Sunshine State leads with the highest number of REOs in October, it has declines 13 percent from the previous month (5,628) and an overall of 31 percent from October 2013 (7,310).

RealtyTrac’s data also shows that there has been a decrease in overall foreclosure activity in Florida from month-to-month dropping by 2.19 percent and a 24.9 percent fall comparing year to year. After 12 consecutive months leading the country with the highest foreclosure rate, October has finally put an end to Florida’s reign.  .25 percent of homes in Maryland, that 1 in every 400 homes, were in foreclosure. Florida had .23 percent (1:444) of its homes throughout the state in foreclosure.

20,236 foreclosure filings were done in Florida for the month of October. California had nearly 6,000 less foreclosure filings (14,994) than Florida even though it has around five million more housing units. New York totals at about 8.1 million residential housing units which lands it in third place.  RealtyTrac reports that Florida has the four metropolitan areas that have the topmost foreclosure rates.  Miami is in first place with 1:363 homes in foreclosure, followed by Orlando with 1 in ever 394, Tampa third with 1 in every 395 homes going through foreclosure and lastly Jacksonville at 1:433.  However, each area did see a decline in foreclosure activity since October of 2013.  Jacksonville had a 37 percent drop, Miami decreased by 27 percent, Tampa’s foreclosures dropped by 23 percent, and Orlando had a 13 percent decline.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Bank of America Fights to Keep Second Mortgage From Being Void in Bankruptcy

Bank of America, Second Mortgage, Foreclosure, Bankruptcy, Supreme Court, Discharge Second Mortgage, Void Second Mortgage, Nullify Second Mortgage,

Bank of America has appealed to the Supreme Court to make a determination of whether a second mortgage can be voided in a bankruptcy if the primary mortgage is underwater.

In a few days the Supreme Court will make a determination of whether homeowners who have filed bankruptcy are eligible to nullify a second mortgage assuming that the property’s market value is lower than the amount owned on the first mortgage. Bank of America appealed twice to the Supreme Court proclaiming that the second loans should not be “stripped off” when a homeowner files bankruptcy even though the primary loan is well underwater.

The two cases that Bank of America is appealing are from homeowners in Florida which have voided the second loans provided by them.  The bank states that the rulings provided by the 11th Circuit Court of Appeals in which it certifies its validity is in discord with the Supreme Court’s paradigm and all other appeal courts that have contemplated it. Alabama, Florida and Georgia are the states which are bound by the 11th Circuit that have nullified hundreds, maybe even thousands, of underwater second mortgages since the court approved it 24 months ago.

According to the data compiled by RealtyTrac, a real estate research company, 28 percent of Florida homes that are mortgaged are worth much less than market value. Florida is the second state with the highest number of underwater mortgages. Nevada is number one. The loans given to the debtors by Bank of America were secured by a lien on the property in both cases. The banks attorneys contend that the lien secured to the second loan should not be affected by the fact that the primary mortgage is underwater. However, the homeowner’s attorneys argue that in a foreclosure, the second mortgage would be completely worthless.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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For Nearly Three Years A Palm Beach County Woman Had Her Account Frozen

debt collector, frozen bank account, debt settlement, remove freeze over account, Bank of Aerica, PNC Bank, BB&T,

A Palm Beach County woman fought for years trying to get Bank of America to unfreeze her bank account due to her husband’s debt collectors.

A Palm Beach County woman had her bank account frozen for nearly three years until a Broward County circuit judge ordered Bank of America to unfreeze it and BB&T to refrain from the pursuit of collecting fund from her account. Amy Kodsi’s Bank of America account had $720,000 when it was frozen by creditors who filed a court judgment due to her husband, who racked up $4 million worth of debt during the market crash.

A property was sold in 2011 to appease the creditors, PNC and BB&T, which then should have been followed up by going to court and acknowledging the lack of funds. However, the banks did not do this.  They instead served Bank of America with garnishment writs causing Ms. Kodsi’s account to become frozen.  Both banks then proceeded to file lawsuits for the same account in 2 different counties.

A Broward judge concluded that BB&T was unsuccessful in providing evidence that contradicted the documents Amy Kodsi provided stating that this bank account was solely her own.  The St. Lucie judge also ruled in favor of Ms. Kodsi stating that PNC improperly issued the writ and the deficiency was never established.  Said judge also communicate to Bank of America that the account didn’t need to be held any longer.

Bank of America defied the ruling claiming they were being overly cautious.  PNC’s attorney disputed the ruling of the improper use of the writ stating the judge didn’t conduct an evidentiary hearing but never filed an appeal.  BB&T appealed the ruling to lift the stay on the garnishment writs but was later overturned by the Fourth District Court of Appeal. After running out of options, Bank of America had no other choice but the remove the stay on Ms. Kodsi’s account, nearly three years later.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Florida Still Leading The County With Largest Amount Of ‘Zombie’ Homes

zombie foreclosure, zombie homes, foreclosure, foreclosure defence, fight to keep you property,

New foreclosure filings have been drastically reduced in Florida, but we are the leading State in the Country with the most Zombie foreclosure homes.

A new report states that although the number of abandoned foreclosed homes has been decreasing locally, Florida continues to surpass the rest of the country. By the end of the third quarter, the commonly named ‘zombie” homes in Palm Beach County are up to 2,749 which is around 35 perfect down from last year, stated RealtyTrac Firm.  Broward County was down 19 percent from last year at 3,437 abandoned homes.  Even with the reduction, Broward is the third highest in the nation of zombie foreclosures, only to be topped by Miami-Dade County with 3,683 and leading the nation at 3,982 is Cook County, IL.  Palm Beach County wasn’t too far behind rating in fifth throughout the country.

Out of the 50 states, Florida was number one with 35,913 owner-vacated properties that are waiting to be reclaimed, nearly tripling New York’s 12,683 abandoned homes. In South Florida, foreclosure filings have been reducing significantly, however the courts are still dealing with the overwhelming amount of cases during the market crash. Typically, the foreclosure process for a regular home is over 2 years, 951 days to be exact, in Florida.  Zombie foreclosure affect the Real Estate market because the home isn’t being taken care of, it’s not being sold to buyers who are starving for options, its lowering the value of all homes in the neighborhood, and the lenders haven’t taken ownership of the property.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Court Rules In Favor of Defendants In Foreclosure Cases With Robo-Witnesses

robo witness, robo-witness, robo-witnesses, bank witness, foreclosure witness, challenging robo-witnesses, challenging banks, foreclosure appeals, fradulent evidece, fair trials,foreclosure defence

Three recent foreclosure cases may have started a trend of Judges voting in favor of Defendants due to the bank’s robo-witnesses who are unable to set a foundation for the evidence that is being presented. at trial

The First District Court of Appeal has thrown out evidence presented in three foreclosure cases due to the lenders’ witnesses being unqualified to testify. In two of the cases, the court stated that the lawsuits should be dismissed in favor of the homeowners. The banks have 30 days to file a motion for rehearing or the decisions will become active throughout the state. It has been known for banks to bring one witness with inadequate knowledge of the origin or accuracy of mortgage records they provided. This is normally due to the number of servicing transfers from the time the loan is funded to the time of trial.

Florida courts had a tsunami of foreclosures filings after the housing market crashed in 2008. In the interim, defense attorneys argued that the plaintiffs were bypassing the evidentiary rules by providing counterfeit documents to prove their standing. This is led to the robo-signing scandal that was challenged in 2010 creating a mandate for servicers and lenders to suspend filing new foreclosure cases.

In 2013 the Fourth District Court ruled in the favor of Connie Yang, the owner, because her homeowner’s association failed to provide solid evidence in the accounting ledger they submitted. However, when defense attorneys tried to use this as an example against the banks, judges ruled that this case only applied to associations and not banks.

In Tallahassee, Judge Nikki Ann Clark of the First District ruled against Bank of New York Mellon because the evidence submitted to prove the amount owed by the defendants, Lloyd & Teresa Burdeshaw, was inadmissible hearsay. The bank’s witness was unsuccessful in authenticating the records provided by the bank and failed to qualify as a person with proficient intellect of the four aspects needed for business records exception. In addition to the case being dismissed for lack of foundation, it was later discovered that the case should have been dismissed years prior because of a motion to dismiss for inactivity that that was filed in 2010.

In another case, Kiefert v. NationStar Mortgage, the Court reversed the foreclosure judgment because the bank’s witness was only able to establish that its predecessor was in possession of the note when the complaint was filed, not that that the note had been endorsed at the time the complaint was filed.

Finally, in Lacombe v. Deutsche Bank, the Court ruled in favor of the defendant, citing that the witness that the bank brought was simply “incoherent”.

These cases were dismissed, refusing to remand any of them as the bank had plenty of time to present proper evidence. Many foreclosure defense attorneys feel that there is a double standard when it comes to foreclosure trials and the witnesses the bank provides. Many go as far as stating that the banks are feeding the witnesses with hearsay so that they may mimic this language in court, but that this would not be allowed to happen in, for example, a medical malpractice trial.

If these opinions stand, the banks will be forced to present evidence at trial just like in any other civil case. Hopefully, the threat of mass dismissals and the expense and loss associated with that prospect will incentivise bank to work with borrowers in modifying delinquent mortgage loans.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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Associations Need To Be More Diligent During The Foreclosure Process

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The inactivity of a homeowner or condominium association going through a foreclosure filing could vastly devastated their finances.

Homeowners and condominium association were doing an adequate job of collecting monies due to them including write-offs that were so troublesome or hard for the association to deal with.  This is all before the market crashed in 2008, where the court system became highly overwhelmed with mortgage foreclosures and unchallenged cases would typically take at least 3 years to finalize. Associations have had to make changes in their collection policies because of submissive terminology in their governing documents and Florida statues. The amount of write-offs has caused the association to propose more special assessments, raise their monthly assessment payments, or go as far as file for bankruptcy.

Florida law states that when the bank who is in first line position forecloses on a property, they are exclusively responsible for all unpaid fees for up to 12 months of assessment payments prior to taking ownership or said property or 1 percent of the initial mortgage debt, whichever one is less, including then entire amount of fees racked up from the moment the bank took over the property until the property is sold. Due to the lengthy amount of time that it takes for a bank to foreclose on a property, associations no longer have the luxury of time, financially speaking, to wait for the bank to foreclose and a new owner to pick up where the bank left off in order to secure past due assessments. If associations wait for this to happen, they will nearly always have substantial write-offs.

Minimizing risk and costs while maximizing collections should be the objective for all associations. There are associations out there that have no changed their collection policies and are still under the impression that assertive debt collection will not always lead them to a larger write-offs but that it can take them to surpluses instead because said associations would not allow time and money to be waste while the bank takes 3 or more years to foreclose on a property. According to the Condominium Associations Institute, Florida has 46,000 associations, making it the largest amount of associations through the country at 14.2 percent.

RealtyTrac Inc., states that there are about 21,000 homes going through the foreclosure process and chances are that this homes are also behind on their association dues. If associations wait to pursue delinquent homeowners, they are directly contradicting their duties. The moment the association received notification that a property has been served a foreclosure complaint, they need to establish representation and immediately start taking action. One of the most beneficially and least used tool associations possess is collection rent from properties in foreclosure. A demand letter can be sent to the tenant, creating an agreement with the former owner, or the association itself can put a tenant in the unit. These are all great ways to collect or even create a surplus while the foreclosure process finishes.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

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