Myths and Truths Regarding Foreclosure: What Most Lawyers WON’T Tell You

Myth: If the bank cannot win I will get my house free.
Truth: There is no such thing as a “free house” as conspiracy theorists and lawyers who want to justify their exorbitant fees like to pitch.  Yes, there are circumstances where the bank voluntarily relinquishes its lien; usually on very low value properties not worth trying to foreclose upon again.  But there are far few in between.  I would say I have personally seen 1 or 2 that fit this situation total out of the thousands of foreclosures I have been a part of over many years to date.
Myth: The bank MUST “show me the wet ink Note to win”
Truth: Incorrect.  This seems to be a common misconception in Florida.  While the original note is typically produced to the Court and placed in the court file, Florida Statute 673.3091 allows a person claiming to be the holder of the Note to allege it was lost and still enforce its terms.  This means that the bank can claim the original Note is lost, produce the basic terms of the Note, or a copy, and still foreclose on you.  The “show me the note” defense no longer works, if it ever really did in practice.
Question: Should I pay my taxes, homeowner’s insurance, or condo/HOA fees?
Answer: I get this question all the time.  If you are in active foreclosure, your lender must pay the homeowner’s insurance on the property as it is protecting their own collateral (the house) from being damaged or destroyed.  The taxes are a little different.  Typically, 99% of the time, the lender pays the taxes because the $1,000-5,000 per year in taxes is worth paying to retain the home worth hundreds of thousands.  Sometimes, the bank will not pay the property taxes and a tax certificate will be issued and sold at a public auction.  This can result in you losing your home faster as well, although this is a rare situation.  I ALWAYS homeowners continue to pay their condo/HOA fees.  A condo or HOA can foreclosure much faster than the bank are there are little to no legal defenses to condo/HOA foreclosure.  You can lose you home to condo foreclosure before the bank every gets judgment against you.

Myth:  I didn’t bother hiring a lawyer, and the bank filed and got a default against me.  Lawyer X claims just to pay me $xxxx.xx and they will win my case.
Truth: Incorrect.  Under new case law, Florida trial courts must now follow the rule that mere failure to retain a lawyer until after default is no longer “excusable neglect” which is a required element to vacate a default.  So you can no longer merely do nothing until it is last minute if you never had a lawyer and were defaulted.  Once default is issued, it may be too late to properly defend your case.
Myth: The bank MUST give me a loan modification
Truth: Incorrect.  Loan modifications are given to certain borrowers who meet the criteria of the various programs- HAMP as well as various in-house bank programs.  They are never a guarantee. 
Question: Do you think I will get a loan modification?
Answer: I get this question on a nearly daily basis and my answer 100% of the time is “I don’t know.”  HAMP uses a mind-boggling calculation to determine eligibility.  Can I tell you if I think you are in the ballpark?  Yes.  But in the ballpark is about the best guess I can give you.  My answer is we will only know if we put your paperwork in for review.  There is no definitive answer or “pre-qualification” that many loan mod services want you to believe.
Question: My house is only worth $75,000, why should I modify my loan at the $200,000 I owe?
Answer: Not all lenders/servicers offer what is called principal reductions, or reducing what you owe on the loan to present value of the home.  For instance, loans owned by Freddie Mac and Fannie Mae typically are not eligible for principal reductions.  Principal reductions are actually farther and fewer between than regular loan modification.  Sometimes your only option to keep the home is accept the regular loan modification offered.  Be wary of any lawyer that promises to get what you owe reduced.

Question: My lawyer doing my foreclosure case wants $xxxx.xx up-front fee to do a loan modification, why should I pay them?
Answer: This is a lawyer’s personal choice to charge up-front fees for modifications, but at Klurfeld & Associates you ONLY pay us if we get you a loan modification.  We charge no up front fees for a loan modification if we are also representing you in your foreclosure case.  You owe us nothing if you are denied for a modification.
Question: Will I lose my house?
Answer: I don’t know.  There are too many factors to this question.  I can spend 3 hours explaining the legal argument in your case, but this will not determine if you will “win;” or the bank won’t be able to foreclose.  This is highly dependent on the court and judge who hears the case, as judges have tendencies in the way that they rule. 
Question: When will I lose my house?
Answer: Again, I don’t know.  This is highly dependent on too many factors to give an answer, including the actions and pace of the bank’s lawyers.  Yes, I can give you a ballpark estimate of events in the case, but I cannot give you anything near an exact time frame.   No one can do so.

George Zimmerman Found Innocent of 2nd Degree Murder Charges Against Trayvon Martin

In a not so surprising verdict, George Zimmerman was found innocent on Saturday afternoon of the killing of Trayvon Martin in Sanford, Florida.

This was not a surprising verdict on many levels.  The media hyped the divide in race and racial profiling. The prosecution pounded their fists on the podium as they argued their case against George Zimmerman. The prosecution argued that Zimmerman racially profiled Trayvon Martin and hunted him down to kill him. The state came to the table with a very weak case on the charges brought- 2nd degree murder and manslaughter. Zimmerman came to the table with a very strong argument that he shot Martin in self defense.

Remember, the state’s burden to prove was “beyond a reasonable doubt.”  Was it beyond a reasonable doubt that the story was not as Zimmerman told it?  I don’t think do.  This is merely a case where no one really knows what happened.  And that in itself is reasonable doubt that would prevent conviction.  

Also, remember that once self defense is alleged, it is the State’s burden to prove the ABSENCE of self defense.  The State simply failed to disprove self defense.

  • Second degree murder is defined in Florida Statutes Section 782.04(2) as: “The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree”
  • Manslaughter is defined in Florida Statutes Section 782.07(1) as: The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree”
  • The allusive self-defense statute, 776.012: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:     (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony

Read: the full jury instructions including the law and directing the jury how to weight the evidence.

Unfortunately, the prosecution could prove none of this.  It was clear from the start that the prosecution intended on appealing to emotion rather than the facts of the case as it had a weak case and a high burden to prove.  The prosecution seemed intent on stirring stir up the courtroom and jury by appealing to the all-women jury to think of Martin as their own son, and how this innocent African American boy had been racially profiled by a “wannabe” police officer who stalked and shot him.

But the facts simply did not support this portrayal.  The defense made an incredibly persuasive argument that merely following another person is not illegal; and it is not by any Florida law, criminal or otherwise.  Was Zimmerman following Martin?  Maybe.  Did Zimmerman follow Martin because he was a “suspicious black kid in a predominantly white neighborhood?”  Maybe.  But Martin could have kept walking, or simply gone home.  The evidence highly suggests that instead Martin decided to confront Zimmerman.  Martin made a choice that ultimately could have prevented his death.  

The fact that Martin may have been allegedly racially profiled only leads up to this choice, but did not force Martin to act.  

The facts showed that, at least at some point, there was some kind of physical altercation between the two and that Martin was bashing Zimmerman’s head into the concrete.  The ONLY eye witness, a neighbor, said that he though he saw Martin on top of Zimmerman pounding him with his fists.  There were NO other witnesses, so this is the only story we have to go on, and it must be accepted if there is no other evidence.

As soon as Zimmerman feared for his life, or the threat of great bodily harm (such as bashing one’s head into concrete would constitute), he was entitled to use deadly force against Martin.  Period.  Florida law, unlike other states, allows for the unequal use of force in self defense; including deadly force as was used here.

This is not a case of white vs. black or race, despite what the media has made it sound.  It would be the exact same result if this was a trial of a white man killed, Hispanic, or otherwise.  Race simply does matter.  As the law is written ANYONE would have been fund equally innocent under these sets of facts.  Period.

This case was not about race, but about the letter of the law.  Even if Zimmerman profiled Martin, this profiling did not directly relate to Zimmerman shooting Martin.   Martin’s choice to confront Zimmerman and use force against Zimmerman led to his death. 

Its disappointing that President Obama made a comment before the trial that Trayvon “looked like what his son would look like.”  Wholly inappropriate.   Its disappointing that the NAACP has just asked the Department of Justice to file civil rights charges against Zimmerman; a further waste of taxpayer money.  The death was NOT directly related to race, even if profiling was involved.  It was directly related on this 17 year old boy’s own reaction that cause his untimely death.

The jury made the correct verdict by the facts and what was argued or not argued in the courtroom.  The killing was because one aggressive man started a fight instead of walking away and was bashing another man’s head into the concrete, and the second man defended himself and shot the first.  No need to mention race, the facts are the facts.  It sounds like the public’s gripe is with the “Stand Your Ground” law itself and the way it is written, because all Zimmerman did was fall into this set of facts that this law protects.  It could have been anyone who shot Martin- Hispanic, Arab, African American, Asian or otherwise.

People want to compare this to the case earlier this year in Jacksonville where an African American woman fired a warning shot into the air, and got 20 years in prison.  The judge disallowed the “stand your ground” defense.  The argument is now that a black woman tries it she gets jail but a white man uses it and he gets off.  NO.  Read the facts of the woman’s case.  Yes she had a restraining order against her violent ex husband.  She went back to their house to get clothes thinking he was not home but he was.  She went back outside to get the gun, came in and fired the warning shots.  WENT BACK OUTSIDE AND GOT THE GUN.  Huge difference in facts from this case.  She could have easily run or driven away.  But she chose to get the gun and go back into the house voluntarily.  This was not self defense at this point or stand your ground.
 I ask one last interesting question that no one seems to want to ask- where were these rights groups, advocates, and protesters when 20 black men where killed in Chicago in black on black gang violence over the July 4th holiday, or the dozens killed in major cities every day by “black on black” violence? Nowhere to be found.  It is unfortunate that it seems to be an issue and a call for justice when one race kills another race.