Hollander and Associates, LLC. represents clients facing foreclosure proceedings. In many cases, it is possible to work out new financing arrangements, and otherwise manage a foreclosure in a manner most advantageous to the homeowner without litigation.
A foreclosure may be worth defending if you have equity in your home.
If your lender has not received their monthly payments when due, you have defaulted on the mortgage and note.
A default on a mortgage gives the lender a right to seek the judicial sale of your Florida residence by bringing a foreclosure action under Chapter 702 of the Florida Statutes.
Florida's foreclosure laws protect your home when you face foreclosure. "Non-Lawyer assistance" programs and companies cannot represent you and protect you in a court of law against a foreclosure lawsuit.
You must act quickly to avoid foreclosure on your home. In most cases you only have 20 days to respond to the summons and complaint.
Defenses that may be raised even if you have fallen behind on your mortgage payments.
1. Due Process:
Pursuant to procedural due process, you are entitled to full discovery and may demand the production by your lender of all documents and information in their possession and control which may affect your rights.
You may have legal rights pursuant to the Real Estate Settlement and Procedures Act. If you refinanced your home and your current mortgage was executed less than three years ago, you may still have the right to rescind the loan and cancel finance charges if your lender failed to provide your with timely disclosures.
3. Lost Notes:
Most foreclosure complaints allege that the lender lost the note. Often the lenders attorney fails to attach a copy of the mortgage note that you signed. The Florida Rules of Civil procedure require that "All ..., notes, ... or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading." The proper assertion of this defense may stop the foreclosure until the lender can supply a copy of your mortgage note.
4. Mortgage Electronic Registration Systems Inc.:
Often the foreclosure against you is brought in the name of MERS. Generally you have never heard of MERS, had contact with them and although MERS is seeking to foreclose your mortgage and alleges it is the owner of the note and mortgage, MERS in fact generally holds the mortgage as a nominee (whatever that is) for the true Lender who in fact holds and owns the Mortgage Note which you signed. The relationship of these entities may materially affect your rights and may be asserted by a foreclosure defense attorney.
5. Force-placed Insurance:
Where lenders purchase insurance in the mistaken belief that the homeowners have let their policy lapse. If the homeowners have their own homeowner’s insurance policy, they should not be paying for the lenders insurance.
6. Lost Payments:
Sometimes payments are not correctly applied to a buyer’s account.
7. Failure to Accelerate the Note:
The loan cannot be foreclosed until the loan is accelerated, if required, and notice must be sent to the buyer.
8. FHA-Insured Loans:
FHA loans have special servicing requirements, including a counseling notice mailed to the mortgagor within 45 days of default, a face-to-face meeting with the borrower within 90 days of default, and a notice of available counseling. Failure to comply with these rules is an affirmative defense.
9. Accepting Payments After Foreclosure:
There may be a defense to the foreclosure if the lender accepts payments after filing foreclosure, and the mortgagor is not in bankruptcy.
10. Truth-in-Lending and HOEPA Violations:
Truth-in-Lending and HOEPA violations may be raised as a defense. However, the most powerful remedy available -- i.e. voiding the mortgage is only available within three years of execution of the mortgage (if its non-purchase mortgage and required disclosures were not delivered to you). An attorney must review the original disclosure documents to determine if there was a violation, but failure to disclose material terms in writing, or high interest rates on a non-purchase mortgage, almost always warrant careful investigation.
11. Fraud, Abuse, Collusion:
Where the loan displays fraud, abuse or collusion, these may be possible defenses to foreclosure.
12. Fair Debt Collection Practices Act:
Attorneys who file foreclosure papers are debt collectors and must comply with the FDCPA. While not a defense per se to the foreclosure action, it does give rise to a statutory and actual damages claim.
13. Failure to Attach Note and Mortgage to Complaint:
The complaint is subject to a motion to dismiss if the note and mortgage are not attached to the complaint.
14. Incorrect Notice or Service:
Service by publication is only valid after an attempt at personal service. In order to be legally valid all information in the notice must be accurate.
Options We Explore for You:
1. Loan Modification
2. Deed in Lieu of Foreclosure
3. Waive Rights of Redemption
4. Refinance Options with a Short Payoff
5. Short Sales (outsourced to realtors)
6. Bankruptcy Protection (outsourced to attorneys)
If you are facing foreclosure, don't resign yourself to having your credit ruined or having a Deficiency Judgment follow you. I understand that sometimes life brings unexpected, unwanted surprises. Illness, lay-offs, divorce, loss in a law-suit or even just a cut-back in hours can suddenly make owning a home unfeasible. The most natural instinct is to hide from the bank and hope it will all just sort of work itself out.. but that approach is not the best one to take.
What you need: someone on your side accustomed to speaking with loan institutions to work out a win-win situation that lets you get a clean start while keeping your credit history intact for when you're finances improve.
Lenders can sue homeowners even after the house is foreclosed on or sold, to recover for any remaining deficiency. A deficiency occurs when the amount you owe on the home loan is more than the proceeds from the sale (or auction) -- the difference between these two amounts is the amount of the deficiency.
What if you have more than one loan? If you have a second or third mortgage (or home equity loan or line of credit), those lenders must also agree to the short sale. Unfortunately, this is often impossible since those lenders won't stand to gain anything from the short sale.
Deed in Lieu of Foreclosure
With a deed in lieu of foreclosure, you give your home to the lender (the "deed") in exchange for the lender canceling the loan. The lender promises not to initiate foreclosure proceedings, and to terminate any existing foreclosure proceedings. Be sure that the lender agrees, in writing, to forgive any deficiency (the amount of the loan that isn't covered by the sale proceeds) that remains after the house is sold.
Benefits to a deed in lieu. Many believe that a deed in lieu of foreclosure looks better on your credit report than does a foreclosure or bankruptcy. You simply hand over title and then let the lender sell the house.
Disadvantages to a deed in lieu. There are several downfalls to a deed in lieu. As with short sales, you probably cannot get a deed in lieu if you have second or third mortgages, home equity loans, or tax liens against your property.
In addition, getting a lender to accept a deed in lieu of foreclosure is difficult these days. Many lenders want cash, not real estate -- especially if they own hundreds of other foreclosed properties. On the other hand, the bank might think it better to accept a deed in lieu rather than incur foreclosure expenses.
For a Free consultation, and legal assistance, call (305) 373-9999 for an appointment orcall toll free 1 (800) 966-4041 for a free out-of-town telephone consultation.
Served with a Lawsuit - What should you do if you have been sued?
No one likes that feeling in the pit of the stomach when served with court papers. You may be wondering what to do when you receive the court papers.
A lawsuit begins when someone, called the "plaintiff" files a document in court, known as a "complaint." The next step is to give you, the "defendant" a copy of the court papers and a copy of a document called a "summons." This is called "service of process," and you may "be served" the papers through the mail, or by personal delivery (such as by a deputy sheriff or other certified process server). The summons tells you how many days you have in which to file your answer or response or what you must do to protect your rights. If you do not file a written answer or response within that time limit or follow the other instructions given, the plaintiff may proceed with the lawsuit anyway. Your failure to respond may be treated by the Court as if the claims in the complaint are correct, and you would be considered in "default." This may mean you have lost your right to defend the lawsuit. You may even have lost any right to be informed of the date and time of later court hearings against you in that case. The usual time limit for responding to a lawsuit complaint is 20 days. The court may extend this time if before the end of the 20 days you ask for and are granted an extension of time, based on a valid reason. The time limit within which to respond to a lawsuit to recover possession of land or a home is 5 days. A response to that kind of lawsuit must, of course, be very prompt. Any response or answer you file must be carefully worded so that all of your defenses may be presented in court. If you have a defense which you do not state in your answer, the court may refuse to allow you to present that defense later at the trial. At the same time that you file your answer, you may wish to file a "counterclaim." A counterclaim is just like a complaint, but it is filed by the defendant against the plaintiff. The same rules for complaints must generally be followed for a counterclaim. The counterclaim will state your reasons why you should recover damages or other relief from the plaintiff. Certain defenses may be good ones but you may not know about them. For example, the plaintiff may have waited too long to file the complaint. The failure to sue within the proper time limit is a valid defense. There may be many other defenses which apply to your case. The best way to make sure that all of your rights are protected is to contact an attorney/lawyer.
Before meeting with your lawyer:
- Gather all information together in a logical order;
- Be sure you have current correct telephone numbers and addresses of interested parties and witnesses, if applicable;
- Prepare a written statement of your problems and what you want done;
- Make photocopies of everything and offer originals or photocopies to your lawyer. Let your lawyer decide if originals or the copies are needed.
During your initial consultation:
- Present an overall view of your position.
- Share all relevant information, let your lawyer decide what is not in your favor. It is much better for your lawyer to know, rather than be surprised later.
For a free consultation, and legal assistance, call (305) 373-9999 for an appointment orcalltoll free 1 (800) 966-4041 for a free out-of-town telephone consultation.
At Hollander and Associates, LLC. established in 1988, we have litigated, arbitrated, and mediated a wide range of corporate, commercial, and other business disputes, including:
- Business and Commercial Litigation
- Contract Disputes
- Corporate Law
- Covenants not to Compete
- Insurance Litigation
For a free consultation, and legal assistance, call (305) 373-9999 for an appointment orcalltoll free 1 (800) 966-4041 for a free out-of-town telephone consultation.
Transfers of structured settlement payment rights.
What is a structured settlement?
When a plaintiff brings a personal injury action against a defendant for damages and the parties decide to settle the case, they may enter into a structured settlement to compensate the plaintiff for his injury. Structured settlements are monetary awards for damages that are paid in installments over a period of time. They are frequently used to settle tort cases involving severe injuries in which large damages are sought (e.g., products liability, medical malpractice, and wrongful death cases) because of the defendant's inability to pay the amount in one lump sum. Astructured settlement is a completely voluntary agreement between the injured victim and the defendant. Under a structured settlement, an injured victim doesn't receive compensation for his or her injuries in one lump sum. They will receive a stream of payments tailored to meet future medical expenses and basic living needs. A structured settlement may be agreed to privately (for example, in a pre-trial settlement) or it may be required by a court order, which often happens in judgments involving minors and incapacitated adults.
Why do a Structured Settlement?
A structured settlement’s most important advantage is security. The structured settlement provides long term payments that are guaranteed by a life insurance company.
The structured settlement allows the injured party to tailor payments over his or her life. There is no need to meet periodically with an investment or tax advisor. Payments are decided during the initial settlement and then are directed to the injured victim. It gives peace of mind, security, and confidence over the long term.
How a structured settlement works
Typically, in a structured settlement, a defendant pays one premium to purchase a life insurance contract. The life insurance company then disburses a lump sum and periodic payments to the plaintiff for a certain number of years. An annuity is generally used to fund the structured settlement award.
The settlement usually contains a lump-sum cash payment for past expenses incurred by the plaintiff, including lost earnings and medical expenses arising from the plaintiff's injury. It also provides funds for the plaintiff's current treatment. Annuities are then designed to provide future payments for items such as ongoing medical care, diminished earning capacity, educational needs of the plaintiff's children, and loss of a decedent's support. In determining the amounts for the future payments, both present value and inflation must be considered.
Converting a structured settlement to a lump sum cash payment
Before you may convert a structured settlement into a lump sum cash payment, you will have to have an attorney petition the Court where you reside under the Florida Structured Settlement Act. Either you must hire an attorney to provide you with an independent professional advice letter, called an "IPA" for independent legal representation and advice or the annuity-for-cash, or structured settlement-for-cash purchase companies will provide you with a written waiver form to allow you to waive the IPA requirement, as allowed by the Florida Structured Settlement Statute, 626.99296, subsection(3)(a)(4). The attorney also should advise you and investigate the possibility, feasibility and parameters of attempting to convert the structured settlement annuity into a lump sum payment. A consultation to ascertain whether it is possible to sell not only the guaranteed payments but also the annual life contingency payments will be needed and also to investigate a variety of structured settlement companies to obtain the best result, most importantly to negotiate the highest pay-out to you. We strive for 89% of the disclosed present value.
A General Guide about selling a structured settlement:
1) First you should determine your current and future cash needs and financial condition. It is recommended that you consult a lawyer.
2) Contact your payment provider, usually an insurance company, to determine the amount, number payments remaining , and terms of your structured settlement. It is a good idea to get all contract information from your provider. You will need this information to give to your lawyer.
3) The information gathering process can include:
-Settlement Agreement/Court Judgment/Release
-Annuity policy/contract - from the insurance company
4) When the underwriting is complete, the settlement will be submitted to the court for approval. A judge will review the settlement and determine if it is in the your best interest to sell the settlement. You are under no obligation to appear in court.
Please note: these are general guidelines, all situations are unique and vary by state and company.
A structured settlement is a method of paying damages to an injured party over a period of time when a lawsuit is settled. It usually results from personal injury cases such as automobile accidents, medical malpractice, wrongful death or product liability. In those cases, the parties involved often agree to have damages paid monthly or annually over a period of years rather than with one lump-sum. The damages are usually funded in the form of an annuity contract issued by an insurance company.
The annuity itself is not assignable by the annuitant because he or she does not own it. It is typically owned by a subsidiary of the life insurance company that issued the annuity. What the annuitant has is the "right to receive the payments" under the settlement. That right is personal property which can be assigned.
Most states have enacted transfer statutes requiring either a court order and/or certain disclosures before a structured settlement recipient can sell their annuity payments.
For a free consultation, and legal assistance, call (305) 373-9999 for an appointment or call toll free 1 (800) 966-4041 for a free out-of-town telephone consultation.
Berkshire Hathaway Life Insurance of Nebraska