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Tracey Keith Dewrell

Tracey Dewrell’s Answers

35 total

  • What is the time frame for foreclosure in Florida?

    Once Lis Pendens is filed, how much time do you typically have before you have to vacate the premises? Is it true if I make a payment before Lis Pendens is filed I will get another 3 months? What if I apply for short sale approval 120 days after...

    Tracey’s Answer

    Figure anywhere between three months to several years. If you don't contest the foreclosure, expect a short timeline. If you do, expect a longer one. The time from lis pendens to auction on a contested foreclosure will depend on a great number of factors such as the allegations denied, available and asserted affirmative defenses, lender's ability to prove its case, borrower's ability to survive summary judgment, if and when the borrower files bankruptcy, eligibility for short sale, availability of mediators, motions calendars, trial calendars, scheduling conflicts, and the list goes on.

    If the lender has already accelerated your note, they will likely reject your attempts to make monthly payments. They may however reinstate the loan for a larger negotiated payment.

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  • Going thru the foreclosure process in FL. mortgage & home equity with the same lender.....

    If the lender sues me for the amount owed can wages be garnished? ...i heard if im the head of household they cannot garnish my wages in the state of florida? is that true, and can they sue me for any amount owed?

    Tracey’s Answer

    If you qualify as head of family, 100% of wages are exempt from garnishment. You provide more than 1/2 of the support for a child or other dependent & have net earnings of less than $500.00 a week or you provide more than 1/2 the support for a child or other dependent, have net earnings of more than $500.00 a week but have not agreed in writing to have your wages garnished.

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  • Pre-foreclosure in FL, i have a 1st mortgage & heloc with the same lender.Can i be sued for the heloc? can wages be garnished?

    pre-foreclosure in FL, have a 1st mortgage & heloc with the same lender. can i be sued for the amount still owed on the heloc? and can wages be garnished? also, if my 1st mortgage was in the rears but i managed to keep my payments up to date on my...

    Tracey’s Answer

    Your failure to keep the first mortgage current likely constitutes a default on the HELOC. While the lender could accelerate the loan based on this default, it would be unusual in our current climate.

    You are responsible for the outstanding balance on both loans. While you are entitled to a setoff for the foreclosure sale proceeds on the first mortgage, you are still responsible for the deficiency on the first and the entire balance on the HELOC. While the lender is entitled to proceed against you for its loss and collect the judgment, which could include garnishing wages, there is no way to know for sure whether it will do so. You should consider retaining a foreclosure defense attorney to negotiate on your behalf.

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  • In the state of florida, pre-foreclosure currently. can i be sued for the amt owed? i have a 1st mortgage & a heloc

    currently in the state of florida, have both a first mortgage and heloc..will i be sued for the amount owed on the heloc if i do go into foreclosure? can my wages be garnished?

    Tracey’s Answer

    Yes, you are responsible for the outstanding balance on both loans. While you are entitled to a setoff for the foreclosure sale proceeds on the first mortgage, you are still responsible for the deficiency on the first and the entire balance on the HELOC. While the lender is entitled to proceed against you for its loss and collect the judgment, which could include garnishing wages, there is no way to know for sure whether it will do so. You should consider retaining a foreclosure defense attorney to negotiate on your behalf.

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  • Can I Appeal a prehearin foreclosure?

    If I have found evidence on illegal assignments and fraud of officers on the assign.and a second assign. that was filed late and was not in my file for the judge to see can I file some kind of appeal to go back and let the judge see this bank is c...

    Tracey’s Answer

    Before entering a final judgment in a judicial foreclosure proceeding, the court must address whether the subject lender is entitled to enforce the note and mortgage at issue. If the lender is not entitled to enforce the note, it is not the real party in interest and the court lacks subject matter jurisdiction to enter a final order.

    While there does exists some conflicting authority, the majority rule is that subject matter jurisdiction is a defense that cannot be waived and may be challenged at any time because judgments entered by a court lacking subject matter jurisdiction are null and void. Visit the following site for a comprehensive analysis of this very issue: http://homeequitytheft-cases-articles.blogspot.com/2009/02/subject-matter-jurisdiction-lack-of.html.

    Not sure whether an appeal would be the appropriate vehicle. Need to know whether the court ruled on this issue, entered a final order, time limitations, etc. A motion for reconsideration may be more effective.

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  • Will paying full price cash speed up a short sale?

    The home has been bank approved and the seller accepted my full price cash offer, is the bank morel likely to give me the house or is there still a chance that might not accept it?

    Tracey’s Answer

    If the short sale was preapproved and you offered an amount necessary to satisfy the negotiated payoff, the bank must honor its commitment.

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  • Will paying cash speed up a short sale?

    It will certainly speed up the time between acceptance and closing. It probably will not speed up the time between offer and acceptance. The two biggest factors in getting acceptance from the bank is how good the offer is and the financial situati...

    Tracey’s Answer

    I concur. A cash offer circumvents the time wasted obtaining loan approval and clearing exceptions. As such, it accelerates the short sale timeline. Having said that, I take exception to the above evaluation. A substantiated cash offer demands greater consideration than one contingent upon financing. The REO industry is well aware of the statistical figures associated with financing contingency fallout. As such, lenders give substantiated cash offers due credit. Many factors effect the time requirements to negotiate a purchase price. Few, however, match the accelerated impact of a cash offer.

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  • Do I need a estate lawyer?

    I sold my house in Florida over 10 years ago. The house is being foreclosed on. Yesterday I received a summon that the bank has filed a lawsuit against me. Can they do this?

    Tracey’s Answer

    There exists a number of reasons in which it would be appropriate for a foreclosing lender to name a former owner as a party defendant to a mortgage foreclosure proceeding. For example, the former owner sold the property subject to an existing mortgage, the buyer gave the seller a second mortgage at closing, the sale was structured as a contract for deed, the conveyance instruments were defective, etc. A seller held second mortgage on title is by far the most common but any seller retained interest would make the seller an indispensible party.

    Read the allegations in the foreclosure complaint closely as one or more of the allegations will likely reference your name and state with particularity the purpose for having named you as a defendant.

    If you conveyed all of you interest in the subject property to the buyer/current owner at closing, you’re then existing mortgage was satisfied in full from the sale proceeds and you did not take a seller second, it is likely that you have been improperly named.

    The best way to know for sure is to provide a real estate attorney with a copy of the foreclosure complaint, have him run a title search to verify the necessity of naming you as a defendant. If you were improperly named, you should move for an immediate dismissal so that your name is not reflected on the final judgment. Hope this helps and good luck. Feel free to repost with additional details for a more comprehensive response.

    Tracey Dewrell
    Dewrell & Sacks, LLP

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  • Deed in both names, Mortgage in his only. Will foreclosure affect my credit too?

    My husband and I might have to foreclose on our home. We are both on the house but only his info was used for the financing. Will foreclosure affect our credit equally or will mine be saved a little?

    Tracey’s Answer

    Your credit will not be substantially effected.

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  • Looking at impending foreclosure on investment property in Fl. Main residence Ga.

    In 2005, my father and I invested heavily into real estate in Fl. Bad idea now, obviously. He decided last year to build a new home and now cannot help me with the Fl property. Legally, we are both bound to the agreement, I know. I have carried th...

    Tracey’s Answer

    Your options are presently limited because lenders take a firm position on performing loans. When you stop making payments, your lender will become much more responsive.

    If you have only one mortgage, you may qualify for a deed in lieu of foreclosure. Otherwise, order an automated valuation report and submit a short sale application.

    Most Florida real estate attorneys represent clients throughout the process and many are successful in obtaining deficiency waivers.

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