I have a foreclosure from 2009 with my ex spouse, Dyck Oneil filed days before the July law change in 2014 for a civil suit against us for $200K. He was served and did not respond, they were unable to provide service upon me for the last 3 years ...
Our office has defended and settled a number of deficiency actions including a number of Dyck 'O-Neal cases. If they serve you, you will have to make the choice to file bankruptcy or defend the lawsuit. Our office does not do bankruptcy, we typically represent those folks who don't really qualify for bankruptcy because of asset or income level. If you are served, go see a bankruptcy lawyer, then call us and other folks who do a lot of deficiency defense and weigh your options.See question
is the rule apply to a balloon mortgage, and i having issues since 2008
I'm not sure what you are asking. Did the mortgage mature? What is the maturity date? Have you made any payments since?See question
Ive had 5 servicers and foreclosure has been dismissed 2x in 7.5 yrs. I expect a 3rd filing any time. Am trying to short sale but bank is giving wrong pay off. I just heard about the double dismissal rule. Can anyone give more info on it and if...
My office is working on a case now where the lender voluntarily dismissed twice [two dismissal rule as discussed by other lawyers here would normally apply], however, its application relative to the Florida Supreme Court's Bartram decision has not been tested. My client last paid in 2007 and was just served a third or fourth time and we are raising the two dismissal rule as a defense, combined with waiver, etc. We shall see. If the lender files a third suit, interview some of the good folks here including our firm and see who you like.See question
Bank tried foreclosing 2x both dismissed. Charges 5 years and back should have gone away but still imcluded in recent pay off letter (almost 400g) I have contract to sell for less than (real) owed but expect bank to turn down short sale due to la...
It depends on what you mean ... "are they liable?" The judge will eventually determine if the issues are appropriately raised? If you are or would have been able to pocket some excess proceeds if the lender used a correct calculation, then, you could get a finding that the lender owes you. Is there a present lawsuit? If so, I would lawyer-up so to speak, but not just with any lawyer. Review the websites and experience level of the folks on this site and others.See question
Ive had 5 servicers, tried to modify numerous times and foreclosure filed, dismissed 2x due to banks error in 7.5 yrs. Im trying to short sale but the figure bank says is owed is hundreds of thousands more as they are still including fees, forced ...
First and foremost; get a good lawyer. Yes, I know it sounds like an oxymoron. Second, develop some litigation leverage and try to get the lender to agree to refrain from pursuing a deficiency in exchange for an agreed final judgment. Our firm's website, and the websites of many of the folks on AVVO will help you understand your options and the possible outcomes.See question
I have an underwater mortgage on my home in Florida that was my primary residence until 2015. At that time I had to move out of state and rent the property out. Due to unforeseen circumstances that property is now vacant and is on the verge of goi...
The answer to your question regarding bankruptcy depends more about other debt and your income than about the upside-down property. For most folks who make a decent income and don't have other reasons (other than an upside-down property), don't need to file bankruptcy. Our firm is running a 90% success rate getting people off the hook regarding upside-down properties thorough aggressively defending foreclosure suits and then settling with the lender by agreeing to a final judgment of foreclosure in exchange for the lenders agreement to refrain from pursuing a deficiency. 90% success still means 10% of the time we fail, then our client would be looking at the possibility of defending a deficiency action, or bankruptcy, or other settlement. You should interview a number of lawyers and undertake the best strategy that fits your particular situation.See question
the bank claims they can sue me and get a judgement, when they sell my house after a foreclosure and it does not pay off the loan, is there anything I can do besides go bankrupt,
If the foreclosure has already occurred [property sold] and now the lender is pursuing a deficiency judgment, there are a number of defenses to be raised. Our office has outright won several deficiency actions and settled many for pennies on the dollar. While every case is different, you should interview several lawyers about your specific situation. Below is some of the law in this area:
Florida’s deficiency law states that “the entry of a deficiency decree … should one exist, shall be within the sound discretion of the court”. §702.06 Florida Statutes. Essentially, the court has complete discretion in whether to enter or deny a deficiency provided that a denial is based on legal or equitable grounds. Weinstein v. Park Manor Construction, 166 So.2d 842 (Fla. 2nd DCA 1964); Realty Mortgage Co. v. Moore, 80 Fla. 2 (Fla. 1964); and S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So.2d 1121 (Fla. 5 DCA 1974).
The procedure for establishing a contested deficiency judgment requires a trial or evidentiary hearing on: (1) the amount of the debt, (2) what the undersigned calls the battle of appraisers – each side’s evidence of market value as of the sale date, and (3) determination whether there are “equitable considerations” that could warrant outright denial of a deficiency or reduction in the alleged deficiency amount. Liberty Business Credit Corporation v. Schaffer/Dunadry, 589 So.2d 451 (Fla. 2nd DCA 1991).
To deny or reduce a deficiency, the Court must rely on a specific or sound legal or equitable basis for it decision – applying legal principles to specific facts. Kornfeld v. Diaz, 634 So.2d 799 (Fla. 4th DCA 1994); and Beach Community Bank v. First Brownsville Co., 85 So.3d 1119 (Fla. 1st DCA 2012).
Also, because it is so discretionary, and many judge's are just over anything that relates to foreclosure, it can be difficult, and expensive to sway some judges to the borrowers. However, because after the foreclosure sale has occurred, the lender has already recovered its bargained-for collateral, the Courts should exercise caution for the benefit of Florida’s citizens – providing every opportunity to challenge the elements of a deficiency action.
One defense available in many cases is: would a deficiency exist but for the lender's conduct in creating and sustaining the bubble in the first place. This is well-documented and can be presented through experts. Further, there are often technical issues with the lenders pleadings that me be leveraged. Regardless, schedule a telephone conference with several lawyers that do deficiency judgment defense and go through the facts of your particular situation. Many folks that the lenders are pursuing for deficiency are not good candidates for bankruptcy. Being a former banker, I can tell you that we pulled credit reports and review loan applications as part of our analysis in deciding who to pursue for deficiency.See question
I purchased a house from a man for my son. The seller financed the property. However, without getting into details, the seller violated several rules of the Dodd-Frank Act for seller financiers and the home has been foreclosed on fraudulently. Who...
Unless the seller does owner financing on a large number of homes per year, I doubt that Dodd-Frank applies. Most federal lending statutes only apply to entities that make loans for a living. Therefore, Dodd-Frank probably wouldn't apply to your seller / owner-financier. That is probably what the CFPB person meant when they told you "they aren't able to handle owner financed mortgages".
By "foreclosed", do you mean lawsuit filed? Or, do you mean that a final judgment was entered and property sold? And, if it was fraudulent and the final judgment entered, why didn't you lawyer up?See question
I provided a response to judge for the plaintiff motion for Judicial Default on 2/6/17. I received a letter today that was stamped with the judge name and the date had a white-out correction of 2/7/17 on it. The part of the order that states DONE...
The short answer is to hire a good lawyer. You should not go it alone. Also, the lender does not have to modify your loan. The lender can pick and choose which loans its will modify and which one it won't. First, put up the most aggressive legal defense the facts will allow. This will "encourage" the lender towards modifying your loan. Second, call the lender at least twice a week to follow up on the loan mod application.See question
Foreclosure was began in September 2010. No payment had been made for six month at that time. The foreclosure was not completed. For some reason the bank decided to release the mortgage lien on the property, but not the debt in 2013. We were ne...
I would suggest that if they released the mortgage lien, the property is yours, if you live in it as your homestead. Based on a recent Supreme Court decision, you may be sued and held liable for the debt, but it is not completely clear. I would ignore them unless they sue you. However, if the property is not your homestead, then see a lawyer right away?See question