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We won another foreclosure trial against NationstarFor those of you who read our blogs often, you know that we often call a foreclosure trial  victory sweet but this one is really sweet.  This foreclosure client came to Loan Lawyers about 3 years ago after being sued by Nationstar.  They had another foreclosure defense attorney in Broward who really botched the case.   Their house was due to be sold in 2 weeks, that is until we got involved.  We busted the bank with an obvious fraudulent affidavit.  How the previous attorney did not see it is beyond me.  We immediately filed a motion to vacate the final judgment and to cancel the sale which was granted.  The bank had 30 days to amend their foreclosure complaint.   They waited about one year.  As it turns out, this was the client’s saving grace, as I will explain.

I have never seen a case where a bank flaunts the rules and court orders like this one and I’ve seen some pretty crazy stuff.  The bank never provided any documents to us despite our sending a Request for Production.  They never responded to interrogatories nor did they respond to our Request for Admissions.  A Request for Admissions is when we send a document to the bank requiring them to admit or deny certain factual allegations.  If a party does not respond within 30 days, they are automatically admitted and the bank is prohibited from introducing testimony or witnesses that contradict the admissions.    More on that soon.

So, not only did the bank not comply with the discovery rules and respond to our discovery requests, they jerked us around for 3 years on modifying the loan.  This family was not looking for a free house or a free ride.  The hit a temporary rough patch and got back on their feet.  All they needed was a little cooperation from the bank and they could have began paying their mortgage.  The bank played 3 years worth of modification games with us.  They would take so long to review the modification that the documents would get a month or two old, so the bank made us update documents constantly.  Finally, we had enough and we schedule a mediation so we could sit face to face with the bank and try to get things done.  Guess what?  The bank never showed up! (They finally showed up at the second one, but were unprepared).  After three years, we finally get a response weeks before trial that we did not get documents in on time so they denied the mortgage loan modification.  This was infuriating because we had proof they had the documents in time.  This is a typical modification nightmare.  That was the final straw, it was time for the gloves to come off.  I have never seen a bank act this bad time and time again.

So, we were set for trial this week.  Pursuant to the trial order, the bank had to produce its exhibits that they intend to introduce at trial.  We send a request several weeks before trial, but the bank never responded.  We followed up several times, again without a response.  Finally, the afternoon before trial the bank started sending documents over.  So after three years of foreclosure litigation, the bank first sent its evidence to us less than 24 hours before trial in violation of the trial order and the rules of civil procedure.  To make matters worse, they even had the chutzpah to send more documents as I was literally driving on the way to trial.  So much for giving a homeowner time to prepare.  So, I get to court and ask the court to strike all of their evidence due to late notice.  I really thought the judge would agree with me, but I thought wrong.  The judge did not want to take such harsh action against the bank and told me I could have a continuance to get more time to prepare.  I did not want the continuance because I felt I had the bank right where I wanted them even despite not having proper time to prepare.

Ok, back to the Request for Admissions. As we were walking up to court, the bank handed me their responses to the admissions.  Remember, if the bank did not answer within 30 days, then by default they admit everything.  So, the bank’s responses were 1 1/2 years late.  Thus, their responses are a nullity unless the court allows the bank to file late responses, which I objected to.  Fortunately, the judge had enough and although she did not strike their evidence, she did not allow the late response to the request for admissions.  So, by default  the bank admitted it did not have standing.  Game over folks.  The bank still wanted to go to trial for some reason.  The judge looked at them and asked how in the world they plan on proving their foreclosure  case.  It was impossible now.  After a brief recess and the bank lawyer and witness speaking about the case, Nationstar finally came to its senses and dismissed its foreclosure case.  What’s great about this case is that it appears to be past the statute of limitations, thus the bank may NEVER be able to file another foreclosure action against our clients.  After everything the bank put this poor family through, the bank deserves what they got.  At the end, the bank is the victim of its own delay tactics and I could not be happier for our clients!

Ladies and gentlemen, if you are staring down the barrel of foreclosure, please do not go at it alone. At Loan Lawyers, we are a team of experienced litigators with all of the tools and knowledge necessary to properly defend you.  Call our foreclosure defense attorneys today to schedule your free consultation.  1-888-FIGHT-13.

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In yet another case, we beat the bank.   We had a foreclosure trial in Palm Beach county this morning against Bank of America and we obtained another great result.  The banks and their lawyers are so disorganized that they just fall apart so often in these cases. A competent foreclosure defense trial attorney will know how to capitalize on their mistakes.

In this morning’s case, the client has was originally served with the foreclosure in 2008.  The original plaintiff was Countrywide and then Bank of America substituted in.   These foreclosure cases can be great to go to trial on because these old cases have the worst paperwork.  The bank originally said they lost the note but then dismissed their lost note count and brought the original note to the trial.  The problem or the bank was that the indorsements on the note had been altered after the lawsuit was filed.  When the bank attempted to introduce the note into evidence at trial, I objected because it was not the same note that was attached to the complaint.   Oooops.

The court agreed with me and sustained my objection.  Guess what?  No note in evidence = no foreclosure.  The bank was forced at that point to conceded and they dismissed their case in mid-trial.  Issues like this come up all of the time and you need to make sure that you have a quality foreclosure defense attorney representing you if you want to have any chance of beating the bank at your foreclosure trial.  I have been litigating cases now for about 14 years, so needless to say, I am no rookie when it comes to trials and evidence.

If you have a foreclosure case pending or a foreclosure trial coming up, we would appreciate the opportunity to meet you in Broward, Miami-Dade, or Palm Beach county to discuss your case and how we may be able to help you.  Call our office to get an appointment one of our foreclosure defense attorneys today.  We handle cases throughout the state of Florida and have office in Broward, Miami-Dade, and Palm Beach.  Put the firm with the proven track record to work for you!

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It just doesn’t get much better than this. (Don’t flame me about a free house being better please). This foreclosure client had a total amount due of approximately $241,000 on her mortgage. She was put into foreclosure in 2009. Our foreclosure lawyers have been working on her file since the beginning of 2010. The bank finally relented and the principle balance on her mortgage was reduced to $50,000! That is almost an 80% reduction in the client principle.

The new mortgage payment on this property is $228.12! Not too shabby and kudos to our litigation team and modification teams. Results like this can never be guaranteed and every case has different facts, but if you want to have a chance of getting a modification like this, you need to fins a foreclosure defense lawyer who knows how to litigate a case.

Read the loan modification for yourself here.

At Loan Lawyers, we have decades of combined legal experience and we are ready to fight the bank for you. You need to to take the first step and call us.  We offer free consultations with our foreclosure and modification lawyers in Broward, Miami-Dade, and Palm Beach counties.  Put our foreclosure defense and loan modification experience to work for you.

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Foreclosure deniedFirst off, I want to apologize for not blogging for the last couple of months.  It been crazy fighting for homeowner rights in this pro-bank client.

On to the good stuff.  I went to trial last week against Select Portfolio Servicing, Inc.  with the best result possible for our client in foreclosure.  The foreclosure trial was in Palm Beach in front of the Honorable Edward Fine.  I have never tried a case with Judge Fine before.  I found him to be thorough and deliberate and fair to both sides.  One of the elements of the trial is whether the bank properly accelerated the mortgage.   Paragraph 22 of this mortgage requires the bank to send notice to the borrower that they are in default before they can file a foreclosure action.  The notice must meet certain requirements.

Now, its one thing to have the notice, but its another to introduce it into evidence.   A notice of acceleration is hearsay, however, the business records exception to the hearsay rules allows the introduction of business records if the bank lays the appropriate foundation.   In this trial, the bank’s witness could not testify who sent the notice.  He said that it could have been Select Portfolio Servicing, or it could have been one of two vendors they use.  The court did not allow the notice into evidence because the witness could not state that it was the bank’s record.  It could have the vendor’s business record.  Being that the witness could not state either way what happened, the court would not allow the notice of acceleration into evidence.

This was huge because without the notice of acceleration in evidence, the bank could not overcome our affirmative defense that the bank failed to meet this condition precedent.   Thus, the bank was denied the foreclosure and they can not take our foreclosure client’s home.  An excellent foreclosure attorney will be well versed in the rules of evidence.  This is where foreclosure trials are won and lost.  Our lawyers represent foreclosure clients throughout the state of Florida.  The foreclosure lawyers at Loan Lawyers are all well versed in the rules of evidence and are ready to fight the bank for you.

This result would not have happened if we did not know what we are doing.  I have personally been doing trials for 14 years now. I know the rules of evidence cold.  If this case was being handled by a foreclosure lawyer that does not know how to try a case, its a safe bet that this would have been a very different result.   I think its also worth noting that of all the trial set in the courtroom that day, I was the only foreclosure lawyer who actually fought for their client.  My client was also the only one who did not lose their house that day.

Read the trial order here for yourself.

When you are looking for a lawyer to handle your foreclosure case, ask to see results like this.  Ask about the lawyer’s trial experience, how long she/he have been practicing, and how many cases they have actually taken to trial.  Most lawyers simply agree to the foreclosure when push come to shove and the trial has been set.  I love trials, it is what I was born to do.  I would also love to be the lawyer handling your foreclosure.  Call us today for a free consultation at 1-888-FIGHT-13.

Free consultations for foreclosure defense are available in our Broward, Miami-Dade and Palm Beach county offices.

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Another great score by the Loan Lawyers team.  This client’s principle went from $340,749.75 to $91,389.  That’s huge. While no one is guaranteed a result like this, if you don’t have a foreclosure defense lawyer that knows what they are doing, you have little chance of a result like this.

Read the modification agreement for yourself here.

At Loan Lawyers, we handle bankruptcy, short sale, foreclosure defense, loan modification, and suing the bank.  We meet with clients in Broward, Miami-Dade, and Palm Beach.  All of our lawyers are trained to properly advise clients on how to best achieve their goals.

If you go to a foreclosure lawyer that does not practice in all of these areas, that lawyer may not be well versed enough to properly advise you on all of the solutions to your foreclosure.

We offer free foreclosure defense consultations and we also handle our plaintiff’s consumer cases on a contingency fee basis, which means no fees or costs unless we obtain a recovery for you on that case.

 

 

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The Palm Beach Post ran a story today on the foreclosure backlog that exists in Florida.  The banks are crying foul that foreclosure are taking so long, but the reality is that the banks themselves are dragging things out.  Their paperwork is a disaster but they have not one to blame but themselves.  Second. if they end up owning the property, then they have to start paying the homeowners’ associations’ fees and they have to start maintaining the property.  They don’t want that either.

What the banks want is to push foreclosures through without anyone putting them under a microscope.  Well, I have news for you, that’s the American way.  In this country, no one shall be deprived of life, liberty, or property without due process of law.  No one I know thinks that homeowners should get a free ride, and most homeowners are not asking for that.   Almost all of our clients simply want a mortgage payment they can afford.  The banks however are unwilling to work with hundreds of thousands of homeowners in this country.

House Bill 87 is the perfect solution for banks.   They can obtain a foreclosure so fast that the homeowner will not have time to mount what may otherwise be a valid defense.  This is a travesty of justice and very un-American.  We could simply say that since the homeowner is not paying, we should just push them out into the streets with their kids without giving them their day in court.  If you are not behind on your mortgage that may be a solution you can live with.  How about next we move onto traffic tickets.  Since the officer gave a ticket, the person must be guilty, so why give them their day in court.  I’ll best most people reading this blog have received a ticket that they did not agree with.  Maybe next, we’ll move onto more serious crimes.  Since so-and-so got arrested, they must be guilty, so let’s just punish them and save the money on prosecution.  This argument is a slippery slope.

The article in the post states “Banks are the biggest barriers to speeding the foreclosure process in Florida because they let cases linger in the courts and continue to present flawed documents, the state courts administrator told a Senate subcommittee this week.”  So, the problem is not the homeowners, its the banks.  That’s straight from the court administrator’s mouth.  So, why the push in Florida to punish the homeowners? I guess its lobbyists and campaign contributions.  My message to all Florida state senators and representatives is that you are there to represent the people and defend the constitution, please do the right thing and not do the bidding of the banks.

What can you do?  Contact your elected state officials today and tell them to vote no on HB87 and stand up for the rights of struggling Florida citizens.  You can look up your representative here.

If you are facing foreclosure in Florida, HB87 may allow the courts to throw your family on the street without due process of law, especially if you have no attorney.  Contact a qualified foreclosure defense attorney today.  We offer free consultations for foreclosure defense in Broward, Miami-Dade, and Palm Beach.

 

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Invalid notice of acceleration or notice of defaultIn most mortgages, paragraph 22 requires the bank to send you a notice of acceleration or notice of default prior to filing a foreclosure action against you.  Unfortunately, there are some mortgages that do not require this, such as some old World Savings mortgages.  However, the vast majority of mortgages contain this requirement.  Many foreclosure summary judgments have been reversed because the bank has failed to prove that the sent the notice.  Now, the bank only needs to prove this if the homeowner has raised the failure to send a proper notice as an affirmative defense.  If this defense is not properly raised, it will be waived and the bank will no longer need to prove that they sent the required notice.  This is why you should not represent yourself in your foreclosure proceedings.  A trained and competent lawyer is simply going to do a better job.

Sending a notice that is titled “Notice of Acceleration” or “Notice of Default” is not enough.  There are requirements that the letter must contain and the bank’s failure to meet any of these requirements may render the notice defective, which would also render the foreclosure void.  Again, failure to properly raise this foreclosure defense properly will waive this defense.  Most mortgages in paragraph 22 require the following:

 

  • Specify the default
  • Specify the action required to cure the default
  • Give the borrower at least 30 days to cure the default
  • State the failure to timely cure the default may result in acceleration, foreclosure by judicial proceedings and sale of the property
  • Inform the borrower of right to reinstate after acceleration
  • Inform the borrower of the right to assert in the judicial proceedings the non-existence of default or ant other defense to acceleration and foreclosure

We have seen MANY defective acceleration notices and some judges around the state are taking notice and finding in favor of the homeowner.  For example, Bank of America many times uses an acceleration notice that is meant for non-judicial foreclosure states.  The problem is that Florida is a judicial foreclosure state, meaning the foreclosure must go through the court system.  The Bank of America notice many times states that the borrower has the right to file an action against the bank to assert defenses.  The problem with this notice is that the borrower does not have to file an action to assert defenses, they may do so in the foreclosure proceedings.  The bank’s notice is thus misleading and there is a great argument that the notice is not compliant.

Courts around the state are starting to take notice, especially on the west coast of Florida.  It is so important for all foreclosure attorneys in Florida to properly raise this defense so that we can solidify this issue.  Unfortunately, too many lawyers are not making substantive arguments like this.  This will take a concerted effort.

If you believe that your Notice of Acceleration or Notice of Default is defective, whether its from Bank of America, Chase, Wells Fargo, Saxon, Ocwen, Deutsche Bank, One West, IndyMac, Bank United, BB&T, Suntrust, Wachovia, or any other lender, call Loan Lawyers today to schedule a free consultation with our foreclosure lawyers in Broward, Miami-Dade, or Palm Beach county.  You may meet with our attorneys in Fort Lauderdale, North Miami Beach, Plantation, Coral Gables, or Delray Beach.

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Defenses to Florida foreclosure

There are a number of great defenses to foreclosures in Florida.

It is best to have an foreclosure attorney who knows what the heck they are doing to properly present these foreclosure defenses.  I will go through a few of the common ones and give my 2 cents on each.  Many defenses are waived if not presented timely and properly.  This is why it is so important to hire a competent foreclosure lawyer in Florida.

1. Defective or Lack of Notice of Acceleration -  Paragraph 22 of most standard mortgages have a notice of acceleration clause.  This clause requires the bank to provide the borrower with notice of intent to accelerate.  There are about 7 items that must be listed in that letter.  This is a powerful foreclosure defense in Florida right now.  Foreclosure after foreclosure has been reversed by the appellate courts for the bank’s failure to prove this condition precedent (see example).  Banks are allowed to generally plead that all conditions precedent to the filing of the foreclosure have been met.  Its is then up to the homeowner to raise the lack of the notice pursuant to paragraph 22 of the mortgage as an affirmative defense.  Failure to do so will waive this defense, so it is important to get this right.  Another great reason to hire a foreclosure attorney who knows what they are doing.  The bank must then prove at trial or summary judgment that a notice that meets the requirements of paragraph 22 was sent.  If they can’t prove it, then the homeowner wins.

2. Lack of Standing – This is a common, but often misunderstood, defense to foreclosure cases.  Standing is the legally ability for a party to bring a claim in court.  In a foreclosure case, the bank must prove that they are the owner or holder of the note in order to foreclose.  Florida law has not been too kind to homeowners in this area.  The law as it stands now is that if the bank has the original note and it is either (a) payable to them, (b) indorsed to them, or (3) it has a blank indorsement, then that is all the bank needs to prove standing.  There is a lot of bad information out there on the internet, mostly put out there bu non-lawyers who don’t have a clue what they are talking about.  Here are some common misconceptions.

The bank needs an assignment of mortgage in order to foreclose – Not true, the law in Florida is that the mortgage follows the note.

The bank must prove that they paid for the loan – Not true, as long as they have a blank indorsement or a specific indorsement to them, the banks will be able to prove standing.

The bank must prove all signatures on the note are valid – Not true, it is presumed that they are valid.  The homeowner must raise this as an affirmative defense and raise the issue of authenticity of the signatures as a negative averment.

This defense is best left to the professionals. The foreclosure attorneys at Loan Lawyers know these issues cold and are available for free consultations in Broward, Miami-Dade, and Palm Beach if you are ready to really fight your foreclosure.

3.  The Bank Did Not Comply With the Pooling and Servicing Agreement – Much has been made of this defense over the last few years.    I previously wrote an article on this issue.  While I think that the arguments are sound, they simply have not been gaining traction.  The Third District Court of appeals in Castillo v. Deutsche Bank Nat. Trust Co. said “Because the [homeowner] is neither a party to nor a third-party beneficiary of the trust, we  find  the  [homeowner] lacks  standing  to  raise  this  issue  and  affirm  the  final judgment of foreclosure in favor of the [bank], as the holder of the original note and mortgage.”  While I believe that this is an issue to raise, I would not want to put all of my eggs in this basket.  Most cases around the country are against the homeowner on this issue.

4.  The Blank Indorsement Post-Dated The Filing of the Complaint – This is an interesting defense that not too many lawyers have zeroed in on yet.  Three cases from the Second District Court of Appeals have held this year that when the bank is trying to prove standing by introducing a note with a blank indorsement, they must prove that they obtained possession of the indorsement prior to the filing of the complaint.  I just argued this issue in my trial last week against Wells Fargo.  We will see what the judge does with this.  This is really a standing argument but I believe that it deserves special treatment as its own defense in this article.  The idea behind this defense is that the Florida UCC states that anyone in physical possession of a note with a blank indorsement can foreclose.  The law also states that a party must have standing before filing the lawsuit.  So, if the bank did not have physical possession of the note with a blank indorsement when they filed the lawsuit, then they did not have standing at the time the lawsuit was filed, and the homeowner wins.

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Chase Home Finance dismisses foreclosure case rather than go to trial todayWe had many people following our foreclosure trial against Chase Home Finance LLC today, so i wanted to give the final update on my blog.   Here’s what went down in Miami-Dade Circuit Court this morning.  Actually, I’ll back up to yesterday.  The bank called us up yesterday afternoon to see if we would simply agree to a final judgment of foreclosure if they let the client stay in for another 90 – 120 days.  Yeah right,  offer rejected.

So trial was set for 8:45 this morning.   The courtroom was a zoo.  There were about 90 foreclosure trials set for this morning.  In the vast majority of cases, the foreclosure defense attorneys agreed to the foreclosure in exchange for a 90 – 120 day sale date.  In my humble opinion, defense attorneys need to push more of these cases to trial.   I think many of these cases can be one.  (My hat’s off to a young attorney who actually did her first trial ever this morning for a foreclosure client.  She lost, but put up a good fight).

So, the bank’s attorney came up to me this morning and asked again if I would agree to the foreclosure and my response was the same, a resounding – NO!  We actually has a really good defense and I believe we would have prevailed.   The case was called and the bank asked for a continuance to postpone the trial.  The judge denied that request and put us at the end of the docket for trial.  The end of the docket finally came after a couple of hours.  The case was called for trial and the bank again requested to postpone the trial and the judge again denied that request.  So, the bank took a dismissal rather than go to trial and prove its case.

I guess I wasn’t the only one who thought I had a good case.  ;)

Our foreclosure lawyers are available for free consultations in our offices located in Broward, Miami-Dade, and Palm Beach.

Order dismissing foreclosure case

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Principle reduction and interest rate reductionThis was not an easy one to accomplish (then again, are there any easy solutions for homeowners?).  What made this one so hard is this poor client lost her husband and he was the only borrower on the loan.  It was difficult to do anything because the widow was not on the loan.  In the end, we were able to work it out, but it was tough.  This is one of the best modifications I have ever seen.

The client did not make a payment for over 5 years.  The bank paid $33,120.46 in taxes and insurance for the borrower.  The total amount due as on March 1, 2012 was $266,296.36.  This amount was reduced to $84,000! The interest rate was variable from between 6.3% to 13.3%.  The new rate is 3.36 fixed! The principle and interest payment went from $1,104.87 to $439.47. What makes this even more incredible is that the client did not make a payment for over 5 years and the bank laid out over $33,000 in taxes.  Even after all of that, the payment was reduced by about 70%.

No one can ever guarantee results like this, but if you want a chance to save your home, you need a lawyer that litigates and that does bankruptcy, short sale, foreclosure defense, loan modification, and sues the bank.  You have almost no chance of getting these results by hiring someone who will do nothing but delay your case.  This is what many law firm do, unfortunately.

We offer free consultations with our foreclosure attorneys in Broward, Miami-Dade, and Palm Beach with appointments available in Plantation / Fort Lauderdale, Delray Beach, North Miami Beach, and Coral Gables.

Read the loan modification agreement for yourself here.

1-888-FIGHT-13

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