Foreclosure – Page 3 – Fleysher Law

South Florida Had An Increase Of Foreclosure Activity In March

Posted on April 23, 2015February 22, 2023 by Emil Fleysher

According to a study by RealtyTrac, March had an increase of foreclosure activity, reversing months of declines. February had 4,577 filings in the tri-county area. But, during March the foreclosure activity, that is, filings went up to 6,329 for the tri-county area. The filing counts as a repossession, a judgment, or a new foreclosure lawsuit. Broward County was at the top of the tri-county area with 3,169 foreclosure filings during March. This is a 58 percent increase from February and a 68 percent increase from March of 2014. Miami-Dade County followed with 1,872 foreclosure filings in March; which is a 29 percent increase from February but a 49 percent decrease for March of last year.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

February Shows Major Improvements for Foreclosures

Posted on March 20, 2015February 22, 2023 by Emil Fleysher

A 35 percent decrease in new foreclosure filings notable in Broward and Palm Beach counties. This shows how the improving economy and higher home prices are benefiting homeowners. In February 2014 Palm Beach County had 342 new filings, in February 2015 only 223. Last year Broward County had 690 new filings in February but in 2015 there have only been 448 new filings. However, Florida still has the third-highest foreclosure rate across the country; one in every 570 properties faces some kind of foreclosure process. RealtyTrac reports that although Palm Beach and Broward counties are still seeing some adversity, the overall foreclosure numbers are expected to drop below pre-crisis levels. They include bank repossessions and scheduled auctions.

New foreclosure filings have declined substantially during this past year. This is mostly due to the improving economy, job advancement, and the increase in home prices. The majority of the foreclosures in the court system right now are leftover from the height of the housing collapse. South Florida attorneys agree that judges are working tirelessly through the backlog. And, they are aggressively setting dates for trials and auctions. A Boca Raton attorney stated that homeowners could respond to a foreclosure lawsuit. And, they could put a series of delays that would leave the case sitting for two or three years. But, that is no longer happening as judges are pushing those cases forward. Data provided by RealtyTrac also shows that February’s figures were the lowest since the housing collapse in July 2006.

If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020. Or, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.

Reset of Loans Causes Increase in Home-Equity Payments

Posted on March 18, 2015February 22, 2023 by Emil Fleysher

As interest-only periods expire on loans begun during the housing bubble era, 3.3 million homeowners will be facing higher payments during the next four years on home-equity lines of credit, according to RealtyTrac. The Heloc loans that totaled $158 billion are requiring principal paydowns beginning this 2015 through 2018. There is a rising threat over the number of new defaults. This is due to the new monthly bills increasing an average of $146. This is especially concerning to those homeowners who already have properties underwater.

According to S&P/Case-Shiller index of property values, home prices have gone up 4.5 percent in the last year in 20 major cities. The threat is magnified because slowing price appreciation gives homeowners less hope of gaining equity. Home prices are 16 percent below their July 2006 high. This is after recovering 29 percent from the post-bubble low in March 2012, the index shows.

Homeowners back nearly $88 billion of the Heloc debt that began during the last house bubble. That is those who owe more the 125 percent of the resale value of the property. And, therefore have less incentive to keep up with payments. Although the reset that took place in 2014 didn’t increase the default, the expectancy for defaults is high due to the increase of payments whose loans are already underwater. RealtyTrac estimates the peak will be 62 percent in 2016.

Home-equity in Other States

There are several states that have a high amount of properties that are seriously underwater. And, that will have borrowers facing a payment increase. RealtyTrac reports that Nevada is at 84 percent, Arizona at 74 percent, and Illinois and Florida match at 71 percent. However, the state of California has the largest amount of loans that will be scheduled for reset- 645,872 to be exact. Out of those properties, two-thirds of them are seriously underwater with an average Heloc payment increase of $215.

No Foreclosure If No Default Notice Received

Posted on March 11, 2015February 22, 2023 by Emil Fleysher

The Fourth District Court of Appeal ruled in favor of the homeowner over Deutsche Bank in a foreclosure case over the notice of default. In fact, the property that the bank was trying to recover is in Port St. Lucie, one of the cities hit the hardest by the housing bubble. However, the hay that broke the camel’s back came from the mailing address to which the notice of default was sent to. The homeowner’s attorney argued back. They said that the bank did not send the notice of default to the property address as stated on the terms of the mortgage, thus violating it. But, instead sent the notice of default to a PO Box.

Although the property was unoccupied at the time, the appeals court agreed that there was a violation of the contract. And, has asked for the moving of the case to the trial court; for dismissal for prejudice for noncompliance with the mortgage’s acceleration. Furthermore, fourth District Judges Carole Taylor, Robert Gross, and Spencer Levine all sided with the homeowner in an unsigned opinion. Also, the homeowner’s other defense was not addressed. In fact, the argument was that the bank presented a backdated mortgage assignment and did not prove standing to foreclose.

When Mortgage Transfers Go Awry

Posted on March 9, 2015February 22, 2023 by Emil Fleysher

The Fourth District Court of Appeal ruled against HSBC Bank USA in a foreclosure case for lack of standing. The defendants, Donna and Marc Murray, appealed a final foreclosure judgment against the bank with the argument that they failed to validate that the mortgage originator transferred its rights. Judge Melanie May wrote on behalf of the unanimous panel “In this foreclosure puzzle, one of the pieces is missing”.

In fact, the Murrays had their original mortgage note with Option One Mortgage Corp., who did business as Sand Canyon Corp. HSBC filed for foreclosure in February 2009. This is when the homeowner became delinquent on their loan claiming they own and hold the mortgage. However, the mortgage from Option One was not assigned to HSBC Bank USA until April of the following year. And even after that, the note itself was still payable to the servicer.

When Sand Canyon completed the mortgage assignment the following year, they backdated it to 2007; providing HSBC all the back-up they needed to claim its entitlement to enforce the mortgage terms as a “non-holder in possession with the rights of a holder”. Furthermore, Palm Beach Circuit Senior Judge Howard Harrison presided over the bench trial. “They got the mortgage. They got the records. They got the servicing. They got the whole thing. They just don’t have the endorsement, and is that fatal?” Harrison asked. “In other words do you have to go and get, and then start over again? That’s the question. I don’t know the answer.”

Conclusion

Ultimately, Judge Howard Harrison ruled in favor of HSBC. The homeowners argued that HSBC did not connect the dots as Option Once changed names, ownership, and branding in the in-between years with several other companies servicing as depositors and servicers. What the court could not ignore is the fact that the mortgage note still remained payable to Option One. Even without a legal transfer to the bank. Moreover, the court went one step above and created a one-page diagram as an appendix. They were listing all the corporate hands on the mortgage. And, they left a dotted line representing “the missing piece in the chain of transfers.”

Landlords Gain As Demand For Rental Properties Increase

Posted on March 5, 2015February 22, 2023 by Emil Fleysher

In a report provided by the U.S. Census Bureau in Washington, D.C. the number of rental properties that are inhabited by renters grew by 2 million last year. The number of available rental properties has fallen 7 percent in the fourth quarter; the lowest it has been since 1993. Since the job market has picked up more young people are about to leave their parent’s homes and start their lives. But the parents aren’t the only ones benefitting from their kids leaving the nest. Single-family homes and apartment landlords are now able to increase rents as demand rises and supply is slow to meet it.

According to the Census date, the rate of homeownership has dropped to the lowest point since 1994. Owner-occupied households have dropped by 354,000 a year earlier. The rate of ownership by people 35 and under is at the lowest it has been since 1982. The rate has fallen 35.3 percent, 1.5 percent just in the last year. The number of total households – 1.66 million – is the largest since 2005, according to Jed Kolko, the chief economist for Trulia Inc.

The vacancy rate for owner-occupied properties declined 0.2 percentage points to 1.9 percent. There was a $20.6 billion increase in 2014 as U.S. renters paid over $441 billion for houses and apartments. This is because fewer and fewer Americans owned their homes. And, landlords with limited inventory increased their prices, states the data provided by Zillow Inc.

Florida “Zombie” Foreclosures Are The Highest Throughout The Nation

Posted on February 12, 2015February 22, 2023 by Emil Fleysher

Throughout the U.S., Florida has the highest number of “zombie” foreclosures. “Zombie” foreclosure is a term for properties that are under foreclosure but have been abandoned. There are only 36,000 pending “zombie” foreclosures, which is a 35 percent decline from this time last year. However, other states are also experiencing the same; such as California, Illinois, Indiana, New Jersey, New York, North Carolina, Maryland, Ohio, and Pennsylvania. This kind of foreclosure accounts for about one-fourth of all foreclosures in Florida.

In fact, “zombie” foreclosures pose a great problem for the banks that have ownership of the property. Moreover, the banks are trying to put them back on the market. However, many of these homes have an overgrown lawn and many damages. Also, the utilities might not have been working for months or perhaps even years. Although these foreclosures have been down since a year ago, they still represent a large share of foreclosures nationwide. There are more than 142,000 properties that are under foreclosure and that went through abandonment nationwide, reported RealtyTrac.

Daren Blomquist, the vice president of RealtyTrac, stated that “zombie” foreclosure is normally the problem cases still “stuck in the pipeline”. Moreover, he also stated that they are more common in the states with a longer foreclosure process. Mr. Blomquist also stated, “The increase in zombie foreclosures is actually a good sign that banks and courts are finally moving forward with a resolution on these properties that may have been sitting in foreclosure limbo for years”.

Zombie Foreclosures in Other states

In fact, New York had the most of these at the end of last month with more than 19,000. This is at the metropolitan level. Moreover, others metro areas near the top of the list were, Tampa, South Florida, Orlando, Jacksonville, Baltimore, Philadelphia, Jacksonville, Las Vegas, and Los Angeles.

Clerical Error Costs Bank Foreclosure Case

Posted on February 3, 2015February 22, 2023 by Emil Fleysher

A clerical error cost Bank of America a four-year foreclosure case when it should have been something clear-cut. In 2009 the plaintiff was granted a final judgment against the defendant Heather Epstein. She moved out of the property the following year. And, Bank of America took over the property with a new certificate of title. However, problems soon arose when the mortgage and all subsequent documents had an incorrect legal description of the property.

The Bank Knew of the Error

Court documentation points towards the bank having knowledge of the clerical error; after the Broward County property appraiser’s office rebuffed the certificate of title and negated to transfer the title due to not being able to match the legal description. It took the bank two years to start taking action in order to fix the problem. This left Epstein as the documented owner while facing the condo association bills.

The trial court denied, without prejudice, a motion filed by Bank of America in 2012 to decimate the foreclosure judgment. Also, they denied the certificate of title in order to have the legal description discrepancy corrected. But, because of Florida’s rule of civil procedure which only allows a one-year period to annul judgments due to errors. However, in 2013 when the Bank made a second attempt stating that the incorrect legal description could affect the rights of a neighboring property, the trial court allowed it urging Epstein to appeal.

Judge Cory Ciklin and Judge Alan Forst both agreed with Fourth DCA Judge Burton Conner. He stated that Bank of America would need to start the foreclosure action against Epstein. This was because the court could have corrected the legal description issue before the foreclosure judgment but not after. This is both good news and bad news for Epstein. The reason is that although she will regain control over the property, she will need to battle it out in court to figure out who is liable for the past due upkeep and maintenance after she vacated the property.

Yet Another Slipup

Another case of clerical slipups, this time by the court and not the bank, cost Wachovia Mortgage FSB its foreclosure case against Jose Montes and Catalina Solano of Courtyard Homes at the Grove in Weston. Wachovia filed the original promissory note before the trial. However, when the note could not be found in the court file, the defendants challenged the bank’s evidence. And, as a result, they won the involuntary dismissal. Adding insult to injury, a week later a court clerk found the note and mailed it back to the bank. It took over a year to resolve the appeal.

Defective Paperwork Should Win You The Case, But That’s Not Necessarily True

Posted on January 28, 2015February 22, 2023 by Emil Fleysher

One could assume that defective paperwork would cost the lender their case. But, it doesn’t necessarily mean that because it depends on which judge is handling it. For BAC Home Loans Servicing LP, mishandled documentation during the height of the robo-signing cost them a foreclosure judgment against homeowner Rosanie Joseph. This was because they failed to prove standing to sue. The foreclosure judgment passed by Palm Beach Circuit Judge Diana Lewis was reversed. The reason is due to the lack of evidence proving that Taylor Bean & Whitaker Mortgage Corp was the owner of the mortgage when the foreclosure was filed against Joseph.

The lawsuit had the 2008 mortgage, provided by Key Mortgage Associates, attached. However, there was no assignment or note with the filing by Taylor Bean which they reported as lost or stolen. Taylor Bean later assigned the note to BAC, who then picked up the foreclosure and ran with it. However, during the trial, BAC was able to present the mortgage and note. The same person from Key Mortgage and Taylor Bean endorsed the note twice, but neither had a date. Judge Martha Warner wrote on behalf of the unanimous panel “A party must establish its standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint.”

The Jaffers’ Case of Defective Paperwork

In the Gafoor and Nina Jaffer v. Chase Home Finance case, the panel had split litigation. The Jaffers declared that Chase provided the mortgage note payable to a third party without providing proof of the transfer. And, he used an amended complaint that declined to state a cause of action. However, due to failure to respond to the lawsuit prior to a default being entered, the Jaffers waived the question of Chase’s standing. Chase acknowledged that some of their employees signed affidavits about loan documents without first inspecting the loan file. But the Fourth DCA upheld summary judgment issued by Broward Circuit Judge Sandra Perlman. In the 2-1 unsigned decision, Judges Spencer Levine and Klingensmith concurred. Judge Burton Conner dissented, citing Chase’s failure to file an accurate copy of the mortgage note.

Boglioli Case

Broward Circuit Judge Kathleen Ireland ruled in favor of homeowner Theresa Boglioli against Deutsche Bank National Trust Co. This was after the lender executed the mortgage transfer post-filing its foreclosure complaint against Ms. Boglioli and provided a blank, undated endorsement in the midst of other documents. Judges Jonathan Gerber, Cory Ciklin, and Levine issued the unsigned opinion. With this many discrepancies and inconsistent rules within the same District, some speculate that there will be a rise in requests for full-court review.

How Late Is Too Late To Foreclose?

Posted on January 12, 2015February 22, 2023 by Emil Fleysher

Florida has a five-year statute of limitations for mortgage foreclosures. This means that the lender can file a foreclosure lawsuit within five years. This is possible if a borrower defaults on his or her payments. But this leaves the question of whether the clock restarts if there is a case dismissal. Or, if the time is still running from the original default. These questions have yet to have an answer. However, they are getting closer to a definitive response; the Florida Supreme Court should be providing an answer during this upcoming year.

˝Continuing default˝ Theory

During one case where the court dismissed the foreclosure, it was stated that they could refile establishing a new default date; even if the original default happened more than five years ago. Under the “continuing default” theory, the dismissal canceled the acceleration of the loan so that the payments would continue to be due every month. And, the loan could get re-acceleration following a new default. In another case that was filed a short time after the first one, the court went further. They stated that this “continuing default” theory also expanded to those lenders who have moved for voluntary dismissal.

Not The Same Result for Every Case in Florida Supreme Court

However, the latest case that took place in December 2014, had a completely different result. The court sharply disagreed. They stated that although the court dismissed the case, it “did not by itself negate, invalidate or otherwise decelerate the lender’s acceleration of the debt in the initial action.” After the dismissal, the bank made no attempts to collect the unpaid mortgage. Therefore, when they went back to file for second foreclosure action, the court denied them the foreclosure baring them by the statute of limitations. Due to the conflict of the difference of opinion by each of these cases, the Florida Supreme Court received a call to revise the law. And, to come up with a unanimous decision.