Another “Foreclosure Freedom Fighter” Nightmare Story

This is a follow-up to a previous post made about the so-called “foreclosure freedom fighters” as I refer to them here.


Another example of, in my opinion, a “grand standing” lawyer more concerned about reputation and getting cases up to the appellate courts (causing their clients to incur even more fees) to make new case law and social policy in the courts, rather than doing what is best for their client to keep their home.   


And even a win at the appellate court is not a win, the case is remanded back to the trial court for even more litigation, at even further costs.  See the picture now how the rich get richer while accusing the banksters of such?  And going back to the trial court doesn’t mean the bank cannot prove their case and still take your house.  Let’s even say the appellate riling is such that the bank has to dismiss their case; it is WITHOUT prejudice meaning they can re-file.  And with the current Bartram ruling, the bank can frankly re-file over and over again until they get it right, until/unless the Florida Supreme Court eventually changes that.


Back to this “foreclosure freedom fighter.”  Without naming names or facts of the case to protect amenity, this lawyer was presenting a motion to dismiss the case at trial and got into a verbal argument with the judge.  Number one mistake to piss of the judge whose the last line of your client about to lose their house.  In my opinion reading the transcript, this lawyer was wrong.  The lawyer laid out a few points (a, b, c, etc) of why the case should be dismissed and the judge simply asked, summarized, any other arguments?  And this lawyer went off and requested the judge disqualify himself for “not letting him speak.”


Again, all the judge said was, again summarizing, “next point”; not don’t speak, not cutting his time off, nothing.  This foreclosure freedom fighter was not allowed to grand stand in the courtroom and spout off to a judge for no reason, and took such offense that the judge was requested to recuse himself and they got into a verbal argument with the lawyer just continuously saying (summarizing) “you’re not letting me speak” and the judge finally threatening contempt.


You don’t go off on the judge no matter what he/she does, as the judge has the power to rule against your client right then and there.  The judge isn’t listening to your points?  Make them for the record (court reporter) and appeal the case when you’re rules against.  Simple answer.  The appellate court would reverse if you made a correct argument on the record (which was only partially done in this example case).  But don’t sit there and accuse the judge of not listening, caring etc. and ask him to recuse himself from the case and get a new judge; that’s unneeded in an open court and disrespectful in my opinion.   The judge is supposed to listen to both side’s evidence fully, yes, but if they don’t want to hear it (due to preconceived notions about the case etc.) you won’t convince the judge otherwise without pissing him/her off.  Move on, make your points for the record and move on and appeal.   If you did things right you will win on appeal and the judgement against your client will be reversed.


The end result here though?  Final judgment for the bank and the this homeowner will lose their house, or pay the lawyer thousands of dollars more to now appeal the case with very little on the record because the lawyer got so personally offended that they stopped putting facts/arguments on the record.  


Was the lawyer’s legal argument correct why the bank shouldn’t get judgment and the case dismissed?  Probably yes it was.  But the reality is the judge ruled and you move on, appeal the case if you think it was flat out wrong or work something out with the bank so the homeowner can keep the house.   Now there is half of a legal argument on the record because feelings were hurt and person offenses taken.   


I do continue to be baffled daily with what must be horror stories of homeowners paying thousands and thousands to fight the bank and these grand standing lawyers (widely known in the state too) are too busy with their reputation and “fighting the good fight for all” to do what is best for their client in front of them.  Why do you think this small group of foreclosure defense lawyers file more appeals than probably anyone in the state yearly?  And to get what?  Hopefully a reversal on appeal to maybe get a dismissal where the bank will just re-file the case?  Why not look towards a permanent settlement and keep the homeowner in their home first?  But, after all, these are the same group of attorneys who have the gall to advertise on their sites and blogs to NOT accept loan mods or do short sales because they are “evil” somehow; god forbid one admits they didn’t pay their mortgage to get a deal to keep them there for 30 years, us other lawyers who are called “sellouts” or “pretender defenders” must be doing it wrong, right?!


I can tell you a good number of our firm’s clients get loan modifications and keep their houses.  And I bet if I polled all of the firm’s current clients, the vast majority care more about keeping their home at the end of the day than proving something about the bank (no matter how corrupt they think the bank is).


So for the same amount of initial money, our clients keep their homes versus that money plus some paid going to trial to lose, to having to pay thousands more to appeal (appeals aren’t cheap, more like $5k+ due to the amount of work, and funny how none of the freedom fighter lawyer and doing these pro bono for free to “fight for the cause.”  Isn’t that funny?), back down to trial court if you win the appeal just to pay more just to get to get an eventual hopeful dismissal; where the bank can start the whole process over again.  These lawyers made their name off the backs (homes) of their unknowing clients and hundreds of thousands in unnecessary fees trying to make social policy and case law rather than doing what was best for the client to keep their home for the next 10-30 years.


How do you want to spend your hard earned money?  Trying to get finality to a solution to keep your home or tied up in courts and paying fees for years to come?  There is being right and then there is being smart to get what you want/need at the end of the day; and I would assume to most having their house is more important to most out there than proving a bank wrong in a courtroom; after-all there are no mythical free houses given out for proving the bank wrong at trial or getting a dismissal where the bank can re-file.


I’ll use a famous line spoken by Denzel Washington in the move Training Day (yes I am guilty of actually using this on a client in my first criminal defense jury trial when I knew he was lying to me discussing the case; which I did ultimately win at trial) “Do you wanna go to jail, or do you wanna go home?”  Do you want your house or do you want to try to fight the “good fight” purely on principle?  I bet most would answer the former out there when it’s their home at stake.

Broward and Palm Beach Foreclosures Down Year to Year But Holding Steady

According to realtytrac.com, while foreclosures in Broward County are down overall, they are still holding steady into January 2015.

As you can see, foreclosure activity remains string, while auctions have fluctuated right around 1,000 per month,  the number of bank-owned properties has skyrocketed.  A sure trend that the Broward court system is clearing out old cases.

Additionally, Broward County foreclosures continue to beat the national and Florida average in units in foreclosure at 0.30%

Palm Beach County exhibited similar trends but at lower numbers. Total foreclosure activity was around 1500 instead of 2500. Pre-foreclosures were about half that of Broward County with auctions at approximately 600-700 average monthly and bank owned properties up but not as drastically to around 500 per month. Palm Beach came in under the national average at with .22% of all units in foreclosure

Broward County Warning- Recent Change in Court Attitude TowardForeclosure Defendants Regarding Sale Dates

Broward County, where we have the bulk of our foreclosure cases and practice daily, has taken a sudden turn it its attitude towards sale dates.  Before, Broward was one of the loosest counties with sale dates we’ve experienced.  2009 case and cancelled 3 times before? Sure, one more time.  Bank agrees? Sure judge signs and agreed order without reviewing it 99% of the time. 


Suddenly, Broward County has decided to change its position on sale date cancellations; likely due to the foreclosure court finding issue coming up again at the end of June 2015. 


We are starting to see, and not a steadfast rule, generally any case 2010 or older being automatically denied cancelling the sale that has been cancelled one or more times before.  That is unless the homeowner is in an approved modification or short sale.   This is in stark contrast to how sale dates were handled not even 1 month ago. 


We urge all homeowners out there to consider this and start your loan modification, short sale or deed in lieu NOW.  Our firm’s general policy has always been to start our clients on modifications or short sale long before judgment I their case; as this does not affect their case and is not admissible as any type of evidence. 


This policy has paid of greatly as we have a higher rate of obtaining approved modifications and deeds in lieu (walk away) than any firm I have worked with in the past; who charge higher fees too. 


If you need assistance defending your foreclosure case along with loan modification, short sale or deed in lieu, contact us ASAP at 754-800-LAW0 or info@JAKLegal.com for your FREE case evaluation.   

Or go on our website and submit your case information to is and we will contact you back as soon as possible to discuss with a licensed Florida attorney. 

Save Money Do Not Rely on “Beating the Bank!!!”

I would like to point out a very good post from fellow foreclosure defense lawyer Mark Stopa.http://www.stayinmyhome.com/foreclosure-defense-101-save-money/ 


Second, the notorious “free house” does not exist.  There are only a handful of cases across the whole country where a borrower got a free house, and these were in cases of the worst foreclosure abuses imaginable.  Florida judges are not generally homeowner-friendly and will not award you a free house because the bank screwed up.Read it.  Read it carefully.  DO NOT and I mean DO NOT hang your hat on beating the bank in court and getting a free house. First, even IF you win or the bank dismisses the case because it cannot proceed on its current paperwork, it is “without prejudice” meaning the bank CAN and WILL re-file at some point.  


You should be saving money.  Whatever you are not paying in mortgage,taxes and insurance, should be going into a separate bank account that you do not touch.  When it gets to the end of the road and modification efforts cannot be had, then you have a safety net.   You can use that money now to go rent or buy elsewhere, and should have a good amount saved if $1,500 is the average mortgage payment as a whole.  


PLEASE do not come to us after 4-5-6 years of being in foreclosure and say “what do I do now I have nowhere to go?”  You knew you were in foreclosure, you had YEARS to save money while we did our job, and there was no guarantee you would end up at the end with the house still.  Money should have been put aside for  rainy day such as this.  


As Mr. Stopa points out in a subsequent post after this, yes, there are times when homeowners cannot even pay their bills, let alone save the money they aren’t paying the bank.  But let me pose this question.  If you cannot pay the bills without a mortgage, what do you expect the bank to do for you to make it affordable to pay your bills AND a reasonable mortgage payment?  You have to be realistic.  If you can afford $0 because you cannot even pay the costs of living monthly, you have a bigger problem than foreclosure and I urge you to seek a financial counselor immediately before it is too late and start saving even a $100 dollars a month.  This will add up after a few years of the foreclosure case dragging on.  In 2 years you will have $2,400 saved; a good deposit for a rental.


Please take this warning and put aside money.  We see far too many homeowners (not necessarily our clients) with fancy cars, nicer than their lawyer drives, taking lavish vacations, and then telling their lawyer that they cannot afford a reasonable mortgage amount.  Do not blow the opportunity while living “mortgage free” to live like a king, because it will come and bite you later when the foreclosure goes through and you have nowhere to go.

U.S. Servicemembers to Receive $123 million in Foreclosure Relief

US armed forces members will receive the first round of payments under federal law protecting service members from foreclosures totaling $123 millions, in conjunction with the $25 billion nationwide mortgage settlement reached in February 2012.
The DOJ has stated that 666 armed forces members will receive $88 million from Chase, Wells Fargo, Citigroup, and Ally Financial.  Another 286 already received $35.4 million under a 2011 settlement with Bank of America.

Lenders had been accused of violating the Servicemembers Civil Relief Act (“SCRA”), which prohibits foreclosures against members of the armed forces who are on or recently returned from active duty and took out their mortgages before deployment.
The foreclosures at issue took place between Jan. 1, 2006 and April 4, 2012, the DOJ said.

Protecting Tenants at Foreclosure Act of 2009 Has Expired

Before President Obama signed the “Protecting Tenants at Foreclosure Act of 2009,” most renters lost their leases when the bank foreclosed on the owner.   This Act provided that leases would survive a foreclosure, with certain provisions. The tenant could stay at least until the end of the lease written lease if they were a “bona fide” tenant, meaning that the property was rented out at market value (not for $100 per month).  A month-to-month tenant without a written lease would be entitled to 90 days’ notice before having to move out.  
An exception was formed for a buyer who intends to live on the property.  This buyer could terminate a lease with 90 days’ notice.  This was done to exclude foreclosing banks and investors from kicking out true innocent tenants. 
These protections applied to Section 8 tenants, too.
On December 31, 2014, this Act expired as it was not renewed by Congress.  Now the law is back to the state where an innocent tenant, who had no knowledge of any foreclosure other than paying money to an owner pocketing the money and not paying the bank, taxes, insurance or maintaining the property, can be evicted upon title to ANY new owner.  This will surely have a large affect on many tenants across the country; especially in Florida.

Bartram Decision Concerning Statute of Limitations on Foreclosure on Appeal to Florida Supreme Court

As previously reported here the 5th DCA previously held that essentially the 5 year statute of limitations on foreclosure really did not apply.  To summarize, the 5th DCA decided that 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.

Before, if the bank filed a foreclosure in say 2007, and that case was dismissed in 2013 by the court (not for settlement), the bank could not file another foreclosure lawsuit as it was barred by the 5 year statute of limitations.  Without getting technical, the first time the bank tried to foreclosure, it accelerated the entire mortgage debt but failed to prevail in the lawsuit.


The 5th DCA misapplied the law, in my opinion, as said that each missed payment was a separate installment payment, and all the bank had to do was allege a default date in the new lawsuit in that 5 year period and then file the new lawsuit.  This was a way around the statute of limitations.


Now the Florida Supreme Court is hearing the case, and will hopefully overturn the incorrect decision that banks are now relying on.  The briefs in the case can be found here and scroll down to the case number SC14-1265 to see all of the briefs filed in the case to date.