Articles Posted in Bankruptcy

Today, we had our 2013 holiday office party.  After working in the morning, the best supporting cast in the business and I took some time off to share a meal and unwind a bit.  After eating at the Yard House in Gulfstream Park, we drove over to Holiday Bowling Lanes and bowled a couple games.

It is a yearly tradition that I share some thoughts via a poem.  Just after our drinks arrived, I read the following to everyone:

Welcome to the 2013 holiday party!

The first trial for this case was scheduled in Miami-Dade for January 2013.  I had spent days and nights preparing, refreshing my memory on all the details such as the payment history, acceleration letter, the note and mortgage, mortgage servicer correspondence, court filings, discovery, rules of evidence, procedure and much more.  As I usually do, I ran background checks on the bank’s witness.  I reviewed all the mortgage servicing processes from this particular bank as covered in various other court documents we have on file.  I felt prepared. I was ready.

Our client had a Fannie Mae loan, serviced by one of the biggest banks. The file contained the usual hoof prints of suspicious documents.  It was handled by a foreclosure mill, which was one of many under investigation by the Attorney General’s office.  Unfortunately, this is not unusual…

I woke up the morning of trial raring to go.  I was prepared, calm and pumped with a bit of adrenaline.  Litigators and athletes will understand the letdown I felt when the trial did not go forward.  Their witness did not show and the court ordered a continuance until April 4th.

It’s been a few days now since the oral argument was completed in an appeal of one of our foreclosure cases.  Legal issues are rarely cut and dry and while this case seemed to be, it invariably was not.  Months and months of preparation boiled down into 16 minutes of argument and as the buzz from the excitement wears off, I can begin to get a clearer picture of how I feel about this one.

Of course, initially, my mind repeated an internal loop of things I could have said or done differently. Mentioning the Boultbee case which stands for the proposition that a denial along with raising the specific statute, similar to the specific paragraph in the mortgage, in an affirmative defense, without more, is enough to adequately deny the general allegation that conditions precedent have been met to shift the burden back to the Plaintiff to prove that element of their case, is one example.  We did cite that case in our brief but this point is in a footnote.  I sure hope the Judges see that.  There were others but that was the one that bothered me most. This may or may not have made a difference and second guessing your performance as a lawyer is part of the job.  However, overall, I knew the law and was proud of the way things went.  I received a number of calls and emails from trial and appellate lawyers whom I respect and admire and the feedback was positive.  Especially since appellate law sets precedent, this was reassuring. As much as my focus is on serving my clients, I know that many others can be affected by this ruling.

Taking a further step back, I can’t help but wonder whether or not this case would have even needed to be appealed if it were not a foreclosure case.  A few years ago, just before the foreclosure crisis, I was in the middle of a 5-day jury trial.  In the case, like in almost all others, the Judge was called upon to rule as to whether or not a document could be admitted into evidence for the jury to consider in its deliberations.  It was a small, one of many, physical therapy bill.  Rather than seek someone from the physical therapist’s office to admit the bill in a case that involved major surgeries, we sought to admit it through the testimony of a doctor.  The doctor knew the bill was fair and accurate, and even knew that the services were ordered, reasonable, and necessary.  However, as required by Florida Statutes 90.803(6), he could not testify as to when the bill was made, how it was made, how it was kept, and whether or not it was made by a person with knowledge. We had admitted similar evidence in other cases usually by agreement but this opposing lawyer would not stipulate.  Because the doctor couldn’t truthfully testify to the issues or “prongs” required by 90.803(6), the judge properly excluded the bill from coming into evidence.  We had our client later testify based on her personal knowledge as to the amount of that bill so no harm was done.

For the fourth year in a row, elected lawmakers in the Florida legislature have introduced a bill designed to bypass your constitutional rights and speed up the process of taking people’s property away and throwing them into the street.  This bill is given a tricky name meant to fool people into thinking it is good for Floridians.  The “Fair Foreclosure Act”, House Bill 87, has been introduced into the Florida House of Representatives by Representative Kathleen Passidomo (R-Naples). We call it the “UNfair Foreclosure Act” to more accurately portray the intention and goals of the bill.  This is the third year Rep. Passidomo has introduced her bill.  She just won’t give up.  She believes that faster foreclosures that kick more Floridian families out of their homes will speed up the recovery of Florida economy. This bill will have a twin in the Florida Senate, to be introduced by Senator Jack Latvala (R-Clearwater).

What will change if this bill passes?  The law will affect every single pending foreclosure case in the state because it is retroactive.  The banks only need to submit certain documents and then it is up to the homeowner to prove there are issues of fact.  However, the judge can ignore the owner’s issues and enter a ruling anyway!  The traditional rule of law, where a person who sues another must prove their case by “the greater weight of the evidence” will be dead for foreclosure cases.  Banks can take your home away, quickly and easily…  They can continue to fabricate documents as they have been caught doing countless times, file them in court, and then the homeowner has only 20 days to raise doubt, which again, the judge can ignore!  The homeowner is not allowed to take time to ask for bank records or payment history to help prove bank misconduct or a wrongful foreclosure.  Lastly, if a house is wrongfully foreclosed, in certain circumstances a homeowner cannot sue to get their house back!  Even the Godfather of Florida’s civil procedure (court rules), Henry Trawick, one of the state’s most respected lawyers, has come out in opposition to this bill!

Over the next month, the bills will move through committees in the Florida House and the Florida Senate where our elected representatives will vote on the bills.  If the “YES” votes outnumber the “NO” votes in each committee, then the bills will go to a floor vote in both chambers of the Florida legislature (the Florida House of Representatives and the Florida Senate).  If those “YES” votes outnumber the “NO” votes in both chambers and the Governor signs off, the bill becomes a law.

On February 7, 2013 the bill passed through the Florida House Civil Justice Subcommittee with ten yes votes and only three no votes.  Unless citizens strongly oppose this bill as it progresses through the Florida legislature, it will pass into law.

We need your help!   This week, please take the time to call and email the members of the House Justice Appropriations subcommittee.  When you contact the legislators please provide your name, county, and zip code so they see that citizens across the state stand in opposition to this bill.

Actions to take this week.

  1. If you haven’t already down so, please sign the petition here.
  2. Click here to vote no on the Orlando Sentinel’s poll asking if lawmakers should speed up the foreclosure process.
  3. Email and call the representatives listed below.  Tell them to oppose House Bill 87.  Type “OPPOSE HOUSE BILL 87” in the subject line of your emails.  Be sure to include your name, county, and zip code because the lawmakers’ staff track citizen responses to proposed legislation.  You can use this script written by Henry Trawick, or craft your own:

“The enactment of §702.015 is useless, unnecessary and will not expedite the foreclosure process. It gives inadequate remedies to persons who may be seriously injured. It does not give any consideration to existing law on several points. The real problem faced in the foreclosure crisis has been the unwillingness of trial courts to insist on plaintiffs properly preparing the pleadings under existing law, enforcing existing law on the standing of plaintiffs; the refusal of appellate courts to properly enforce existing law on standing in foreclosures; and the unwillingness of banks to promptly push foreclosures to judgment to avoid paying real property taxes, condominium assessments and maintenance for the foreclosed property.” ~ Henry Trawick, Esq.

McBurney, Charles [R]   Chair  (850) 717-5016 charles.mcburney@myfloridahouse.gov
Passidomo, Kathleen C. [R]   Vice Chair  (850) 717-5106 kathleen.passisomo@myfloridahouse.gov
Rouson, Darryl Ervin [D]  Dem Ranking Member (850) 717-5070 darryl.rouson@myfloridahouse.gov
Diaz, Jr., Manny [R]    (850) 717-5103 manny.diaz@myfloridahouse.gov
Kerner, Dave [D]    (850) 717-5087 dave.kerner@myfloridahouse.gov
La Rosa, Mike [R]    (850) 717-5042 mike.larosa@myfloridahouse.gov
Mayfield, Debbie [R]    (850) 717-5054 debbie.mayfield@myfloridahouse.gov
Metz, Larry [R]    (850) 717-5032 larry.metz@myfloridahouse.gov
Moskowitz, Jared Evan [D]    (850) 717-5097 jared.moskowitz@myfloridahouse.gov
Pilon, Ray [R]    (850) 717-5072 ray.pilon@myfloridahouse.gov
Schwartz, Elaine J. [D]    (850) 717-5099 elaine.schwartz@myfloridahouse.gov
Slosberg, Irving “Irv” [D]    (850) 717-5091 lrving.slosberg@myfloridahouse.gov
Van Zant, Charles E. [R]  (850) 717-5019 charles.vanzant@myfloridahouse.gov

Here are the email addresses for a quick copy and paste into an email.

charles.mcburney@myfloridahouse.gov,
kathleen.passisomo@myfloridahouse.gov,
darryl.rouson@myfloridahouse.gov,
manny.diaz@myfloridahouse.gov,
dave.kerner@myfloridahouse.gov,
mike.larosa@myfloridahouse.gov,
debbie.mayfield@myfloridahouse.gov,
larry.metz@myfloridahouse.gov,
jared.moskowitz@myfloridahouse.gov,
ray.pilon@myfloridahouse.gov,
elaine.schwartz@myfloridahouse.gov,
lrving.slosberg@myfloridahouse.gov,
charles.vanzant@myfloridahouse.gov

~

If you are in South Florida and are looking for help with debtforeclosurereal estate or want more information about bankruptcy law, call us at (754) 400-5150 or fill out our online form for a FREE CONSULTATION.  Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!

We are a debt relief agency.  In addition to other legal services, we help clients file for bankruptcy relief under the Bankruptcy Code.

For the fourth year in a row, elected lawmakers in the Florida legislature have introduced a bill designed to bypass your constitutional rights and speed up the process of taking people’s property away and throwing them into the street.  This bill is given a tricky name meant to fool people into thinking it is good for Floridians.  The “Fair Foreclosure Act”, House Bill 87, has been introduced into the Florida House of Representatives by Representative Kathleen Passidomo (R-Naples). We call it the “UNfair Foreclosure Act” to more accurately portray the intention and goals of the bill.  This is the third year Rep. Passidomo has introduced her bill.  She just won’t give up.  She believes that faster foreclosures that kick more Floridian families out of their homes will speed up the recovery of Florida economy. This bill will have a twin in the Florida Senate, to be introduced by Senator Jack Latvala (R-Clearwater).


What will change if this bill passes?  The law will affect every single pending foreclosure case in the state because it is retroactive.  The banks only need to submit certain documents and then it is up to the homeowner to prove there are issues of fact.  However, the judge can ignore the owner’s issues and enter a ruling anyway!  The traditional rule of law, where a person who sues another must prove their case by “the greater weight of the evidence” will be dead for foreclosure cases.  Banks can take your home away, quickly and easily…  They can continue to fabricate documents as they have been caught doing countless times, file them in court, and then the homeowner has only 20 days to raise doubt, which again, the judge can ignore!  The homeowner is not allowed to take time to ask for bank records or payment history to help prove bank misconduct or a wrongful foreclosure.  Lastly, if a house is wrongfully foreclosed, in certain circumstances a homeowner cannot sue to get their house back!

Over the next month, the bills will move through committees in the Florida House and the Florida Senate where our elected representatives will vote on the bills.  If the “YES” votes outnumber the “NO” votes in each committee, then the bills will go to a floor vote in both chambers of the Florida legislature (the Florida House of Representatives and the Florida Senate).  If those “YES” votes outnumber the “NO” votes in both chambers and the Governor signs off, the bill becomes a law.

In December of 2011, the Department of Justice (DOJ) reached a $335 million dollar settlement to resolve allegations of lending discrimination by Countrywide Financial Corporation.  Countrywide was charged with steering African-American and Hispanic borrowers into loans with higher fees, higher interest rates, or other sub-prime loan features, simply because of a person’s race or national origin.  Skin color, not credit worthiness, was the determining factor for the higher cost loan.

After finalizing the settlement, the DOJ conducted a statistical analysis of millions of Countrywide loans.  The DOJ compiled a list of eligible African-American and Hispanic borrowers who obtained a Countrywide loan which contained higher costs and less favorable rates than loans extended to similarly-qualified non-Hispanic white borrowers during the time frame from 2004 through 2008.  Either a borrower is on this list or not.  There is no dispute process.  Settlement notification letters were mailed in November 2012.  The quickly approaching deadline to return a settlement claim is Thursday, February 28, 2013. 

Despite having numerous African-American and Hispanic clients that should be eligible to participate in this settlement, only one client from our firm received a settlement notification and that client is a non-Hispanic, white person.  This leads us to believe there are massive flaws in the DOJ’s identification and notification process.

As we review our clients’ online docket and/or official records search results each week during this holiday season, we can’t help but think that so many will not be able to spend time with family or loved ones or otherwise enjoy the holidays like they have in years past because of a variety of financial challenges.  We know that this is true for far too many who were just doing as they were told was the “right” thing to do; buying a home, taking out student loans, or responding to numerous offers to borrow money at initial “teaser” interest rates to fix up their home or consolidate some other debt.  We now know that those pushing this “right” thing were really interested in ONE thing, profit, over all else. The result is, years after the supposed “recession” and “bailouts”, much of Main Street is suffering, primarily as a result from Wall Street’s unfettered greed and the governments that enable them.

While providing the best possible legal service to our clients is and always will be our top priority, we can’t help but also be motivated to see justice serviced for an out of control financial services industry which has made the government and so many others believe they are both too big to fail and too big to jail.  This is despite the fact that all the major players continue to commit a growing list of heinous crimes, like we saw recently from HSBC’s money laundering (and don’t forget Wells Fargo and JP Morgan), racist practices by Countrywide/BoA and Wells Fargo and GFIOcwen fraud, and top five banks’ foreclosure fraud, and UBS interest rate rigging, and massive schemes involving forgery and land ownership document forgery and fraud.  It is this combined passion that keeps us working long hours, nights, and weekends to serve you in foreclosure defense, debt defense, bankruptcy, real estate and soon, student loan defense.

We are dedicated to all of our clients, to keeping them informed, and most of all, to providing them with the best possible legal representation! While there are still so many challenges ahead and causes worthy of our fight to see justice served, we would like to take this time to reflect and express our most sincere gratitude, especially to our clients who put their trust and confidence in us and also to extend our most heartfelt wishes for a peaceful and healthy holiday season and very happy New Year.

Florida has earned the dubious honor of being number one in the nation for foreclosures filed against families.  Florida has more than twice national average of foreclosure activity.  And if that wasn’t bad enough, those figures came from a housing data firm, RealtyTrac, which reported Palm Beach County’s October 2012 foreclosure starts at 925 while the Palm Beach County Clerk of Court reports a much more larger figure, 1,418 new October 2012 foreclosures.  This is 493 or 35% more than what RealtyTrac is reporting and that’s just in Palm Beach County.

What’s most important though is that these statistics are not just numbers.  At our firm, we know foreclosures are happening to far too many good people, real people with real lives, each month.  Countless families are living in a state of deep unease due to the financial crisis, caused by big banks and their greed.  Those banks got bailed out while families all across the country are left to fend for the themselves, often scapegoated as being the cause of their own problems.  Your neighbors, co-workers, friends, and acquaintances may be struggling with a foreclosure and afraid to talk about it.  We are here for all South Floridians who would like to consult with someone who will be on their side during these difficult times as well as in the future when times are much better.

~

In the fall of 2010, after years of tireless work by foreclosure defense attorneys and citizen activists, the media finally shed light on what is widely known as robosigning.  Robosigning is a dismissive term for the widespread manufacture of evidence, including real estate document fraud and forgery by banks, in order to fraudulently claim the right to foreclose on the homes of millions of American citizens, when the paperwork to legally do so did not exist.  The forgery and fraud was also committed in order to continue the fraudulent mortgage-backed-investment scheme used to deplete American’s retirement savings, pension funds, and 401ks.

Within a few months of the media exposure, a working group comprised of all 50 state’s attorneys general and regulators from federal banking and housing agencies came together, albeit some state’s AGs dragged their feet and only joined the group after it was too politically toxic to remain on the sidelines.  The former Alabama AG, Troy King, was so in the thrall of the banks that he stalled until he could no longer do so.  He was the 50th AG to join the group.   In 2011, Luther Strange succeeded King.  As Alabama’s new AG, he was equally reluctant to investigate or rein in the fraudulent practices of the fraudulently foreclosing banks.  Many of these prosecutors believe that we should be satisfied with and celebrate the Justice Department gloating over harsh prosecution and punishment of the small fry, regular people caught up in the foreclosure fraud crisis.

The Attorney General group was headed by Iowa’s Attorney General, Tom Miller, who, at first, used strong language and, in December 2010, stated publicly that criminal investigations and indictments of foreclosure fraud would be forthcoming.  He was up for re-election.  Miller received a flood of campaign contributions from the financial industry, and soon after his reelection took on a much weaker, more conciliatory tone.  Four Republican attorneys general from Florida, Oklahoma, Texas, and Virginia were outwardly hostile to the groups’ efforts to prosecute bank crimes and provide relief for millions of the citizens whom they represent in their respective states.  Despite the promise of quick action, it took a year for news of possible settlement filtered into the media.  Several Democratic AGs from Nevada, CaliforniaDelaware Massachusetts, and New York, were opposed to the first settlement proposals, faulting the weak provisions and insufficient penalties for the massive scale of the wrongdoing.  Each of them filed their own civil lawsuits against banks for a variety of mortgage servicing and foreclosure abuses.  Miller, the group’s lead AG, even went so far as to kick NY AG Schneiderman off the group’s executive panel due to Schneiderman’s strong objections to weak and useless settlement proposals.

David Dayen has a fantastic post up on Firedoglake.com debunking all the much celebrated recent good news in the media on housing issues.

Headlines proclaim home sales are up, prices are up, bidding wars, realtors going door to door begging people to sell, inventory down, home-builder industry exuding “confidence”.

On the ground, we know what’s going on.  And it is not hordes of families lining up to buy homes.  Please.  That is so 2005!   In fact, in 2011, mortgage loan lending was at it’s lowest since 1995.  The banks blame this on poor credit worthiness, which they neglect to connect to the harm done to the American people in the wake of the financial crisis.  The median American family is facing a terrible loss of wealth, a 40% plunge from 2007 to 2010.

Contact Information