State of Foreclosure May 2014

The state of the foreclosure process has not gotten any better with the recent rule changes to the Florida Statutes meant to speed up the foreclosure process.

In fact, the foreclosure process has gotten even worse.  Cases are not progressing any faster in 50% of the cases.  There are cases still without activity or movement by the bank in 6-12-18 months.

The other half of the cases as being swept into continuous “case management conferences” and trials.  Pointless case management conferences where attorneys are required to show up at the court’s beckoning in an effort to literally force cases towards trials.  These CMCs are set without regard as to attorney’s calendar or schedule, and are sometimes randomly set by judges in mass and mailed to attorneys; at which time the attorney has no choice but to attend regardless of his/her schedule.

And cases are set for trial without any regard to the production of discovery.  Discovery not done? Well the rules only require an answer to be filed so, sorry too bad so sad.  In countless cases, the banks now just drag out producing discovery (a tactic once used by defense attorneys to delay cases months or years) until a point that trial is set and it is never given to the homeowner’s attorney.  How can a defense attorney defend a case without discovery?  Not even the best and highest dollar defense attorneys can do so.

This is all in an effort to force cases to trials where homeowners will not defend and banks can get mass judgments.  And why would homeowners defend?  A bank witness (parrot) shows up and reads documents, and everything they say is taken as credible and true by the court.  Even worse, judges question the bank witness for the bank attorney, essentially making the bank’s case for them.  Homeowners don’t stand a chance against these parrots, and the judges who do the bank lawyers’ jobs for them.

You still have the big name defenses attorneys preaching justice and to take cases to trial an appeal.  And where are a good majority of their clients?  Losing their houses just like everyone else because there is no magical formula to win cases as they preach.  Every case is different and no attorney should force all of their cases to trials to risk their client’s home.  That is professionally irresponsible in my book.

Without any representations or guarantees, that the MAJORITY of our firm’s clients (who want to keep their property in foreclosure) actually do end up keeping their houses; the vast majority of well over 75%.   A whole TWO homes lost in 2014 to be exact in nearly half of this year.  What is this magical formula?  Simple.  Firm time is used on trying to modify the client’s loan or get them into some kind of forbearance or other negotiated deal rather than spending fees fighting a losing battle going to trial.

Our firm could care less if we have the defender of the public reputation like some of the big names in Florida.  Our firm care less if bank attorneys fear us and fear arguing against us.  We could care less about reputation to judges or other lawyers.  What we care about is results; pure and simple.  Find out what your defense attorney’s mantra is.  Are they more interested in how many newspapers they are in, quotes they can give and how many judges and other lawyers fear them, or the end result which is your home.

This is your home, only you can make these decisions.

Florida’a 5 Year Foreclosure Statute of Limitations Eroded by the 5th DCA in U.S. Bank vs. Bartram

In last week’s ruling in U.S. Bank National Association vs. Bartram, the key issue was when the clock started ticking on the five-year deadline for the statute of limitations on foreclosure.

Many foreclosure defense attorneys agree that happens at the time of acceleration, when the bank decides after a series of missed payments that the entire loan amount is due.  That typically occurs on the date on the demand letter send to the borrower, or 30-32 days after the date that demand/acceleration letter was dated..

Bartram’s foreclosure was filed in May 2006 by the Law Offices of David J. Stern, which closed in March 2011 after allegations of wrongdoing. In May of 2011, the court dismissed the foreclosure after the bank missed a case management conference.

Eventually, the court canceled the note and mortgage and said the bank could no longer enforce its right to collect the debt.

But on appeal, the 5th DCA was decided the five-year deadline to collect started anew when each mortgage payment was missed. That essentially means the bank is under no deadline to refile for the life of the mortgage, typically 30 years, plus 5 years.

This may also result in banks restarting foreclosures on cases that it thought were to long gone to file new foreclosures on.  This ruling essentially gives banks unlimited time to refile foreclosure cases; until it is overruled by a higher court; such as the Florida Supreme Court, although unlikely.

Florida defense attorneys argue that this ruling is incorrect in many ways.  Most notably, if the bank accelerates that loan, says all of the future payments are due, how could these future payments be the basis of new defaults?  There is some Florida case law that mentions the concept of “deceleration,” or that if the ban dismisses the case, future payments again become due under the loan monthly which can be the basis of a new default and not barred by the statute of limitations.

Full opinion here