In the state of Florida is it legal for a debt collection agency to sue me for a second mortgage on a second home I had bought in Florida?

The home could not be sold as a short sale and was foreclosed on. Before it foreclosed the bank which held both mortgages sold off the second mortgage to a debt collection agency.

I was unable to pay them and now they have served papers on me and are suing me for the sum of the second mortgage.

I have heard in other states that they cannot do this but am unsure about in Florida.

Any help would be greatly appreciated. Thanks!

Bonnie (more…)

How can I stop a Florida foreclosure, I read some of the forum and was given this site from a friend, I have been working to get my very high mortgage restuctured and the mortgage company will not responded.

I now have a summons that has to be done b/4 Feb 1st. Not sure where to turn. I have been trying to resolve a issue with the lender still last year when the mortgage was transferred after the 2nd time. within 4 months apart from each other.

I hope someone can answer the question.

My friend is very help with you and your service.

Best Regards
Louise (more…)

The daunting “foreclosure mills” of Florida – ready to take your house away.  There are only a handful of them – that is, there are only a handful of law offices that file all of the foreclosures in the state of Florida.  An April 2008 article on TBO.com titled “Law Firms Cash In On Foreclosures” listed the following firms as most popular for some 1,700 lis pendens filed in Hillsborough County Florida in the month of February 2008:

Florida Default Law Group — Tampa…….415

David J. Stern — Plantation………………..263

Marshall C. Watson — Fort Lauderdale…..182

Shapiro & Fishman — Tampa………………133

Smith, Hiatt & Diaz — Fort Lauderdale……75

Albertelli Law — Tampa………………………61

Daniel C. Consuegra — Tampa…………….47

Adorno & Yoss — Miami………………………41

Ben-Ezra & Katz — Fort Lauderdale……….33

Spear and Hoffman — Miami………………33

Attorney fees for these foreclosure mill attorneys by statute permit 3% of the principal balance as a “reasonable” fee in a foreclosure lawsuit; however, it seems that the foreclosing plaintiff/lenders have found law offices throughout the state that are willing to do the job for a flat fee of 1200 bucks and from what I’ve seen this doesn’t vary by loan amount.  Specifically, F.S. 702.065(2) reads (emphasis added):

“In a mortgage foreclosure proceeding, when a default judgment has been entered against the mortgagor and the note or mortgage provides for the award of reasonable attorney’s fees, it is not necessary for the court to hold a hearing or adjudge the requested attorney’s fees to be reasonable if the fees do not exceed 3 percent of the principal amount owed at the time of filing the complaint, even if the note or mortgage does not specify the percentage of the original amount that would be paid as liquidated damages. Such fees constitute liquidated damages in any proceeding to enforce the note or mortgage. This section does not preclude a challenge to the reasonableness of the attorney’s fees.”

So, the term “foreclosure mills” seems to be an accurate depiction and in my opinion, the reason these law offices are able to charge this nominal fee is because the vast majority of homeowners do not answer the complaint.  In Florida, you have twenty days to respond from date of in-hand service (thirty if by publication) and not filing a response is exactly what these law offices would prefer the homeowner did – nothing, ignore it, that’s it, game over. 

Foreclosure is a big deal and there’s a lot at stake.  Per FNMA guidelines a foreclosure takes the borrower out of the housing market for five-years whereas a completed short sale permits the borrower to purchase again in as few as two-years.  Additionally, Florida foreclosure permits deficiency judgments either at time of foreclosure or a deficiency judgment can be sought at a later date.  Specifically, F.S. 702.06 reads (emphasis added):

“Deficiency decree; common-law suit to recover deficiency.–In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor.”

So what to do when going up against Goliath the lender and the experienced foreclosure mills?  Once again, let me share with you my opinion that they do not want to have to deal with a homeowner who has filed an answer. 

Here’s a Florida foreclosure complaint and here’s an answer (and affirmative defenses, motion to dismiss, counterclaims, and demand for jury trial).  Here are Florida foreclosure pleadings in a case where the homeowner is defended by “the foreclosure killer” one of the Country’s leading foreclosure defense attorneys.

But I digress.  Don’t think that these foreclosure mills are perfect.  Take a look at the complaint in an affirmative action in Dongen v. Florida Default Law Group, P.L. et al (8:2007cv01568, M.D. Fla.) and the case was settled.  Florida has a double whammy for the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA) and yes they award attorney fees.

The foreclosure mills of Florida.  Sometimes stopping that wheel is as simple as filing an answer – which is mysteriously followed by your accepted loan modification or short sale.  Go figure.

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

My husband died 6 years ago and I have used every resource to stay in our home since it didn’t sell. I’m about $1,000.00 short every month now. I’m looking at foreclosure. I just refinanced in Dec 2009 and have a FHA mortgage.  Will I be responsible for the difference of what the house eventually sells for and the balance on the mortgage?

Madison (more…)

There was an article yesterday on MSNBC.com titled: “ ‘Angel’ of foreclosure defense bedevils lenders” highlighting highly acclaimed foreclosure defense lawyer April Charney of Jacksonville Legal Aid.  First, let’s take a look at what MSNBC.com noted: (more…)

Before you read this article, you should read: Reestablishment of Lost Note 

A couple of weeks ago I found this answer to this foreclosure complaint which pleading states: “Verified Answer, Affirmative Defenses, Motion to Dismiss Count I, Counterclaims, Third Party Complaint, And Demand For A Jury Trial”.

Now I don’t know how you feel about the subject and I don’t know this attorney, but I can already tell that I like his style – as a consumer advocate I’m a personal fan of anyone that requests a jury trial to defend a foreclosure.  The fact is that too many homeowners get served in a foreclosure action and don’t respond.  Then, the lender goes right to default judgment.  IMO that’s a real problem because fighting back – even by doing as little as answering the complaint – throws a wrench in the fast spinning foreclosure mill wheel and by so doing may either provide the homeowner the opportunity to rework the loan through a fair and equitable loan modification or permit them to sell the property as a short sale and avoid foreclosure (remember: a short sale permits the homeowner/seller to buy again in two years whereas a foreclosure knocks them out for five-years and in Florida can result in a deficiency judgment and continued collection).

Before I get sidetracked again (sorry I’m longwinded), I want to highlight a section of this answer and with the footnote that at present I do not have an opinion as to whether this highlighted portion of the defense has any merit.  Keep in mind, the general rule in defending a foreclosure is to challenge everything, so I’m still researching the following defense.  From page four through six of the Pinkston answer:   

27. Failure to state a claim for which relief may be granted.

i. Plaintiff filed a claim to re-establish a lost note.

ii. Plaintiff claims the right to re-establish such note under Fla. Stat. §673.3091

iii. Fla. Stat. §673.3091 provides only for re-establishment of negotiable instruments as defined under Fla. Stat. §673.1041

iv. The note at issue is not a negotiable instrument as defined under §673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument.

v. Therefore Fla. Stat. §673.3091 does not apply to transfer or enforce the promissory note at issue in this foreclosure action.

vi. Therefore, Plaintiff has failed to state a claim for which relief may be granted.

MOTION TO DISMISS COUNT I.

Defendant moves to dismiss count I of Plaintiff’s complaint to re-establish a lost promissory note for failure to state a cause of action.

29. Florida Statutes Chapter 673 “applies to negotiable instruments.”

30. F.S. 673.1041(1)(c) defines the term “negotiable instrument” as an unconditional promise or order to pay a fixed amount of money, if the instrument does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. (emphasis added)

31. F.S. 673.1041(2) provides that “instrument” means a “negotiable instrument”.

32. The official comment to F.S. 673.1041 states that the definition of “negotiable instrument” delineates the scope of Article 3 of the Uniform Commercial Code.

33. The promissory note that the plaintiff seeks to foreclose is not a negotiable instrument under Florida law because the note is not just a promise to pay as it requires additional undertakings by the owner and holder of the note imposed pursuant to the special default loan servicing obligations that apply to this loan.  These special and highly detailed loan servicing requirements are incorporated into the subject note and serve to create uncertainty in the amount due.  As a result, the promissory note is not a negotiable instrument and not subject to reestablishment under the Uniform Commercial Code.

34. A promissory note to be negotiable, must contain an unconditional promise and there must be a specific ascertainable sum.  The uncertainty presented by the terms of the note at issue in this foreclosure defeat negotiability of the note and eliminates the possibility of the application of F.S. Chapter 673 in an action to enforce the note.  Nagel v. Cronebaugh, 782 So. 2d 436 (Fla. 5th DCA 2001), citing United Nat’l Bank of Miami v. Airport Plaza Ltd. P’ship, 537 So. 2d 608,609 (Fla. 3d DCA 1988); Thompson v. First Union, 643 So. 2d 1179 (Fla. 5th DCA 1994); See also, Bankers Trust v. 236 Beltway Investment, 865 F. Supp. 1186 (E.D. Va. 1994).

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

CHAPTER 702

FORECLOSURE OF MORTGAGES, AGREEMENTS FOR DEEDS,
AND STATUTORY LIENS

702.01  Equity.

702.03  Certain foreclosures validated.

702.035  Legal notice concerning foreclosure proceedings.

702.04  Mortgaged lands in different counties.

702.05  Mortgaged lands sold for taxes.

702.06  Deficiency decree; common-law suit to recover deficiency.

702.065  Final judgment in uncontested proceedings where deficiency judgment waived; attorney’s fees when default judgment entered.

702.07  Power of courts and judges to set aside foreclosure decrees at any time before sale.

702.08  Effect of setting aside foreclosure decree.

702.09  Definitions.

702.10  Order to show cause; entry of final judgment of foreclosure; payment during foreclosure. (more…)