Articles Posted in Real Estate

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.

A 101% Principle Reduction!

After a little over a year in litigation, we are proud to announce that we have been successful in helping yet another client obtain a principal reduction. While they are rare, they most certainly can and do happen!

Our client came to us with a simple goal, a fair and sustainable loan modification. The property in this particular case, according to the county property appraiser, is currently valued at approximately $38,000.  Unfortunately, like most of the deeply underwater homes in Florida, the outstanding balance of the loan @ $197,000 was substantially higher than the value of the property.  During the course of litigation in this case, we put the Plaintiff to task to prove their case.  We regularly work 12-14 hour days, 6-7 days per week uncovering foreclosures that are more often than not, chocked full of questionable, suspicious, or outright fabricated documents.

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.

HB 87: Henry Trawick, the Godfather of Civil Procedure and the Rule of Law Speaks…

“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.”

Copy of the letter below…

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.

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.

In Florida, about half of all homeowners with mortgages owe more than the value of their home. This is called “having negative equity, ” being “upside down,” or “underwater.”  Most of those families owe a LOT more, up to 50% or more than their homes are actually worth!  If a family owes tens of thousands or worse, hundreds of thousands, more than the value of their home, there is little hope of ever refinancing into a better interest rate.  Selling the home, moving for a job, or relocating for family needs is also very difficult but possible as discussed below.  It’s very likely that many families who owe so much more than their homes are worth will never catch up and will never truly own their homes.  Many of these families have hundreds of thousands of dollars owed in a balloon payment that is due after ten to twenty years of paying their monthly mortgages.  Modifications that only reduce interest rates or extend the number of years to pay off the underwater mortgage may effectively lower the monthly payment but are only delaying the inevitable day of reckoning on the disproportionate mortgage balance compared to the value of the home.

Now that the top five banks (Citi, Wells, Chase, BoA, and GMAC/Ally) get short sale “credit” towards the $25 billion foreclosure fraud settlement , there is an increased approval rate for short sales.  A short sale is when a new buyer pays less than the outstanding mortgage owed on the home and the bank allows the sale to go through without demanding the current homeowner come to the closing table with the left-over amount owed.  In many short sales though, the bank reserves the right to collect, at some point in the future, the left over (deficiency) amount that was not paid off at the short sale.   When banks claim credit towards the settlement penalty, they are required to waive the deficiency.  This waiver qualifies as mortgage debt forgiveness, which is normally taxable.  Until the end of 2012, the waived mortgage debt is exempt from taxation due to a 2007 Mortgage Debt Forgiveness Act that was passed by Congress.  This act will expire next month unless Congress votes to extend it.  Our firm helps homeowners review short sale documents to make certain that the deficiency waiver legal language adequately protects our clients.

With each passing year, there is growing awareness that millions of 2003-2007 vintage mortgages were based on a massive Wall Street demand for fraudulent loans.  A demand fueled by investment banking firms which bundled up thousands of loans into scam investment bonds and then foisted the scam bonds off on to our pensions and retirement funds but not before insuring the fraudulent bonds and often the mortgage loans themselves.  To further enrich themselves, these investment banks bet heavily on the fact that the loans would fail.

The nation’s top banks are tired of paying the price for crashing the economy, defrauding billions from retirement savings, and dispossessing tens of millions of people from their homes in fraudulent foreclosures across the nation.  The banks are ready to move on already.   Their officers and representatives are whining about the continued investigations, lawsuits, and damage to their reputation.  If the banks are tired of fending off lawsuits, how must millions of Americans facing debt collection, foreclosure, or student loan collection lawsuits feel?

In February 2012, a foreclosure fraud settlement was reached between five of the top banks; Citi, Wells, BoA, Chase, and Ally/GMAC.  The settlement, between these top five banks and forty-nine state attorneys general and federal housing and banking regulators, was the result of sixteen months of negotiations after the story about foreclosure fraud and robosigning (aka forgery and real estate fraud) broke in the mainstream media.   What specific acts of wrongdoing were settled, thereby removing the threat of future demands, settlements, or government lawsuits? According to a FAQ document on the settlement published by HUD on March 12, 2012:

Q: What set of violations are servicers being released from?

The 2008 bailout of the American financial industry was based on a law enacted by Congress, Emergency Economic Stabilization Act of 2008 (TARP).   Under rushed and pressured emergency conditions, Congress passed the legislation with very little understanding of why the economy was crashing.  There was a sense that the housing boom had something to do with the urgent need for a bailout, so provisions were added that required the bailout trickle down to millions of American homeowners who were given suspect mortgages.  The spectacularly failed mortgage modification program now known as HAMP is part of this law.  HAMP was authorized by sections 101 and 109 of the Emergency Economic Stabilization Act of 2008, which was later amended by 7002 of the American Recovery and Reinvestment Act of 2009.

Because no help was actually extended, most do not realize that the bailout law demanded real relief to the American people not just the financial industry.  To this day, the funds earmarked to help hardest hit families have largely gone unspent.  Programs, presented as a last hope and help, like HAMP, are now being exposed as a way for banks to deplete savings, 401k, and other assets from millions of families.  HAMP leaves families worse off more often than not, owing more, trapped in a home with higher mortgage debt and worse loan terms in the long run.  Sheila Bair, before she stepped down as the chairman of the FDIC, was an outspoken critic of chain of title problems caused by mortgage banking fraud and other foreclosure fraud tactics.  She even called for a Superfund to help American families who have saddled with unsustainable, fraudulent, toxic mortgages.

Bair’s new book, “Bull by the Horns: Fighting to Save Main Street from Wall Street and Wall Street from Itself,” explains that HAMP was intended to cheat borrowers, to string them along and drain their savings and eventually foreclose on their homes.  This truth is even more strongly echoed in Neil Barofsky’s recent book, “Bailout: An Inside Account of How Washington Abandoned Main Street While Rescuing Wall Street.”  In Barofsky’s book, he explains how it dawned on him that the post-bailout goal of the U.S. Treasury was to allow banks to take dwindling wealth of American families while offering false promises of loan modifications all in a continued effort to increase the banks’ health and value.  Barofsky’s realization came to him during a contentious conversation he had with Tim Geithner, the Secretary of the Treasury, when Geithner expressed satisfaction that HAMP was allowing banks to coast gently down after the financial crisis instead of crashing since the American families “foamed the runway” for the banks.  Later, Geithner blocked attempts to use TARP funds to help families cover legal costs to defend against fraudulent foreclosures.

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