Foreclosure Defense and Loan Workouts
THE PROCSESS
At Zaeri & Associates, P.A., we aggressively defend and protect debtors in various types of foreclosure cases. With over 19 years of experience, Ben Zaeri has dedicated a large part of this practice to defending home and commercial property owners who, due to hardship and financial reasons beyond their control, have been unable to timely pay their monthly mortgage payments.
At times, lenders make lackluster attempts at offering alternative loan work out options, such as deed in lieu of foreclosure, short sales, and loan modifications. However, except some limited success, for the most part, banks are not offering the appropriate level of assistance to homeowners and commercial loan debtors who are having trouble making their monthly mortgage payments. Understandably, this causes immense anxiety for delinquent home and business owners who are facing foreclosure, both due to the prospect of losing their home or business to foreclosure, and the fact that after foreclosure, they may be liable for the deficiency on their mortgage.
CASE REVIEW AND ADVICE
As a part of our foreclosure case review, we study the initial loan documents and perform a thorough search of the record to determine whether we can find illegally produced loan documents, mortgage and promissory note, allonge to note, and other related loan documents. In many cases, we often find irregularities in the loan documents, against which we can proceed with legitimate legal defenses.
Even when there are no problems with the loan documents, we often find issues with the foreclosure lawsuit, which give us the opportunity to file for dismissal of the case. Meanwhile, we work with our clients to find foreclosure alternatives such as short sales, loan modifications under the HAMP (Home Affordable Modification Program) and HAFA (Home Affordable Foreclosure Alternative) programs, deed in lieu of foreclosure, cash for keys, and other work out options.
The basic premise of a foreclosure lawsuit is that the lender has the original promissory note in its possession, and is entitled to enforce it. If a lender bank fails to provide adequate evidence of ownership and possession of a promissory note, it is likely that the presiding judge will not enter foreclosure against the property owner. Sometimes the lender can still obtain foreclosure without holding in its possession the original promissory note. Under Florida Law, this can be done if the lender, to the satisfaction of the Court, shows that it was entitled to enforce the promissory note when the note was lost, and that the note has not been sold or transferred to another person or entity. The lender would also have to indemnify you against a third party who later on makes a claim of ownership of the note.
In the past, there have been some cases, although few and far between, where the lender was unable to prove ownership of the promissory note. In those cases, because the lender is unable to prove its case, the homeowner continues to stay away from foreclosure of the home, and in some very special cases, there have been cases where the homeowner may have walked away with an unencumbered home, free and clear of the mortgage after a quiet title challenge. For this reason, it is always important to look into the bank's ownership status of a loan when a lawsuit is filed against you to ensure your rights are fully protected.
If you have been served with a foreclosure lawsuit, it is imperative that you seek immediate legal counsel. Most lawsuits require you to file a response within 20 days of receipt, failing which may result in a default being entered against you, and a fairly speedy foreclosure of your property. If you have been sued, do not hesitate. Call Ben Zaeri now for your initial free case assessment and advice.
Some common defenses include:
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Bank's failure to provide proper servicing transfer documents to borrowers.
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Bank's failure to follow the strict requirements of Section 702.015, Florida Statutes.
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Bank's failure to follow requirements of the Florida Rules of Civil Procedure.
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Failure to provide notice of acceleration of the mortgage prior to filing suit.
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Bank's failure to contemporaneously certify possession of the promissory note.
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Bank's failure to show entitlement to enforce the note and mortgage pursuant to Section 673, Florida Statutes.
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Bank's failure to provide proper face to face counseling prior to filing suit in certain circumstances.
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Bank's failure to serve the foreclosure lawsuit in the manner dictated by Florida Law and Section 48, Florida Statutes.
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Bank's failure to sue within the 5 year statute of limitations.
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Bank's lack of standing to file suit when suit was filed.
The above list of defenses is not exclusive. There are many other potential defenses that can be raised in each case, which we may discover after a thorough review of your case.
Frequently Asked Questions in Foreclosure Cases
Q: WHAT MUST YOU DO WHEN SERVED WITH A LAWSUIT?
A: When you are served with a lawsuit in Florida, in most cases you will have only 20 days to file a response with the Clerk of Court in the County where you are served. If you fail to do so, the plaintiff may be able to obtain a judgment after 20 days, and you may lose the case by default. If you are served with a lawsuit, contact us immediately. We can help you avoid a default judgment.
Q: WHAT TO DO IF YOUR DOOR LOCKS ARE CHANGED BY THE LENDER WHILE IN FORECLOSURE?
A: Banks are increasingly hiring field agents to visit properties during foreclosure actions to "weatherize" and protect it from damage. As a part of this process, bank agents will ascertain if there is anyone living on the premises. If they determine that the property is abandoned, under the terms of most mortgages, they have the right to change locks and protect the property by taking any reasonable acts necessary. Please note that until and unless there is a foreclosure of the home, and a subsequent sale, you are the title owner with the exclusive right to occupy and sole control and ownership of the property. As such, if a lender/ plaintiff changes your locks on the mistaken belief that the property is abandoned, you have every right to remove and replace their locks with your own. However, you are advised that it is best if you contact the lender first to let them know you are still in possession of the property, and that you are changing the locks back.
Q: CAN A LENDER DEDUCT WHAT'S OWED TO IT FROM MY PERSONAL BANK ACCOUNT?
A: During the bank foreclosure process, you may not be able to pay the monthly payments on your mortgage loan. Please beware that some banks may be able to deduct their mortgage payments automatically and without your consent from your personal bank account in cases where the lender is also the financial institution where your bank account is located. To avoid surprises, it would be best to change your bank account to another financial institution so that your personal funds are not wiped out overnight, which could lead to additional financial stress.
Q: CAN YOU CHALLANGE A FORECLOSURE CASE AGAINST YOU BECAUSE THE LENDER FAILED TO GIVE YOU CERTAIN DISCLOSURES AT CLOSING?
A: At the time of closing on your mortgage loan, the bank must give you several disclosures under the Truth in Lending Act, and the Real Estate Settlement Procedures Act. Please review your loan documents to ensure that these were provided to you when you purchased the property. If not, you may be able to challenge the bank's ability to foreclose.
Q: CAN YOU JUST STOP PAYING YOUR ASSOCIATION FEES NOW THAT YOU ARE IN FORECLOSURE?
A: Sometimes you will be faced with the predicament of whether to pay your homeowner's association (HOA) assessments and fees or to just let them go as you did your mortgage. It is imperative that you know that the HOA can obtain its foreclosure of your home faster than a lender. Usually, the HOA does not have the trouble of showing that it holds or owns any mortgages on the property. They would merely have to show that the payments were not paid in accordance with the HOA covenants and bylaws, and that notices were sent to you in accordance with the law.
Q: WHAT CAN YOU DO IF YOUR HOUSE DOES EVENTUALLY REACH FORECLSURE?
A: One option is to consider filing bankruptcy, if you qualify. To file for Chapter 7 bankruptcy, your income cannot be over the State median income. The latest median family income can be found on the following U.S. Department of Justice website (Click Here)