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A foreclosure lawyer in your own state is your best bet

October 25, 2014 1 comment

So many times I have potential clients tell me that they have hired an out of state law firm to help them get a modification and end their foreclosure case.  What is worse is that these out of state law firms appear to be recommended by some agencies or groups within the State that the homeowner is facing foreclosure.

First, Florida is a judicial foreclosure state.  That means you have to have an attorney representing you in the state you are facing foreclosure.  If you are counting on the out of state law firm to file anything on your behalf in a case think again.  Most often they will not, and then the homeowner is drug along believing they will get a modification.  Meanwhile, the court case is moving forward, and since no answer has been filed to the bank’s complaint, the bank will ask the Court for a default – meaning they win, case over.

Second, banks have been slammed with their antics regarding offering modifications (see my previous blogs).  When it comes to modifications they do not have your best interest at heart.  How many clients are told to resubmit documentation time and again that the bank says is now old (so they can collect another HAMP fee), and are strung along for years while bank employees are fulfilling quotas given to them to actually TURN HAMP FILES DOWN THAT ARE ELIGIBLE.  It is disgusting.

The bank often has no desire to work with the homeowner.  As the BOA employees stated in Massachusetts they want the foreclosure instead.  What incentive do they have to have a 2% loan on their books?  Even if they took federal money to do just that.

Be very careful.  And make sure that the Court case filed against you is answered.

http://www.stayinmyhome.com/state-lawyers-help/?utm_source=rss&utm_medium=rss&utm_campaign=state-lawyers-help

Categories: Uncategorized

Our Nightmare on Tape

September 2, 2014 Leave a comment

There it is!! WELCOME to our world!! “Bahrani said that while writing the film, he went to foreclosure hearings in Florida (where the movie is set, though it was shot in New Orleans for tax purposes). “With realtors I went on evictions, with wildly rich hedge fund managers and crooks and thieves and hoodlums and swindlers. I remember I would go to foreclosure court with Lynn Szymoniak, who is a fraud attorney, and they tried to foreclose on her home and then she ended up leading a lawsuit against the banks to the tune of $90 million and won. Now she uses the money for charity work. They would call these courts the ‘rocket dockets’ because the cases happen in 60 seconds flat,” he said.

“If you don’t speak English and you are Hispanic, the judge would say, ‘I’m sorry, we don’t have time for that,’” he continued. “After a while, the people started winning, and I turned to Lynn and asked, ‘What is going on?’ and she said, ‘The judge is seeing you with a yellow legal pad taking notes, and he thinks that because you are with me you are a reporter for the New York Times, so as long as you sit here people will win.’ After about an hour, I had to go to the next place to continue doing research, but I couldn’t go because I continued seeing another homeowner coming in, and I knew they would lose if I left. So I ended up being stuck there the whole day, conning the judge into thinking I was going to write a story.” As he points out , he did write a story, and it’s all up there onscreen now.”

http://deadline.com/2014/09/telluride-foreclosure-crisis-drama-99-homes-electrifies-fest-and-sparks-strong-distribution-and-oscar-buzz-827524/

The Judicial Foreclosure – Due Process? Not in Foreclosure. And in the Future in a Lot Less Areas as a Result.

January 12, 2014 Leave a comment

Not much to say except that I have seen a great deal of this first hand. As someone who has had doubts in the two governmental branches where officials are truly elected (with the exception of local judicial elections), I have always trusted the judiciary was the true “check” on our government. The branch that was “for the people”, who made the hard decisions such as Brown v. Board. Truly the admirable branch. Not anymore (with the exception of the Judges I have seen that truly try to remember there are two parties to a case). People are now sold for expediency, and the settlements and promises from the other two branches helped to make it happen. Disgusted. The future backlash on our notion of due process will create a backlog where “expediency” over human rights is the rule of the day. Can you imagine that in ALL areas of law? Be concerned. And no backlog problem is solved through expediency. Reversals coming down from appellate judges who truly believe in the American ideal of due process will remind us once again that no amount of legislative funding can buy due process.

“Despite the seemingly favorable stories about the economy and real estate, Florida homeowners are now worse off than ever before. Banks continue their culture of mortgage fraud, and foreclosure litigation has become the legal “wild west.”

For example, on a single day more than 90 foreclosure trials were set to occur before one trial judge. But general magistrates have now become empowered to take the homes of Floridians, despite the fact they were not summoned by any electorate.

In yet another judicial circuit, court staff unilaterally communicates with the bank’s counsel, prompting them on what to file in order to advance the case along.

In yet another circuit, homeowners are being denied routine depositions and discovery.

Banks that ignored the court’s rules for years are not being sanctioned. As if that was not bad enough, courts statewide have been bullied into clearing the backlog of foreclosure cases by the Legislature in order to receive funding. Forget your Pollyanna notions of separation of powers among the state’s branches of government.

The foreclosure crisis is not over; it’s not even close to being over. It’s getting worse. Issue saturation has led to apathy among leaders, the media and the populace. But the due process rights of homeowners continue to be further marginalized on a daily basis across our state.”

http://tbo.com/list/news-opinion-letterday/foreclosure-crisis-getting-worse-in-florida-20140109/

Homeowners Fighting Back, and when the Judicial System actually lets them show their Evidence…Winning

December 12, 2013 1 comment

A Judge in Florida, whom I have a tremendous amount of respect for, made quite a ruling in November.  For years now homeowners have complained of rising payments on fixed-rate notes that were not explained to them by the banks other than an “escrow shortage” that couldn’t be accounted for.  For years now homeowners have claimed they were told to stop paying, by that very bank, to get a modification to fix the “escrow shortage” problem.   A modification the bank had no intention on giving, and developed internal controls to prevent.  Homeowners who claimed they tried to make the payments they contracted for and had payments sent back, all while the banksters convinced the legislative and judicial branches that those homeowners were just wanting to live “rent free” and not paying anything.  They didn’t bother to hold their returned checks in their hands like some of us have had to. 

When your payment rises over $1,000 a month and there really is no explanation for “mystery fees” or forced place insurance policies that are completely insane price-wise, then it’s time to speak up.  I’ve even seen earthquake insurance being force-placed on a North Florida panhandle resident (the USGS disagrees with that possibility however).  Finally a Judge who seems to understand that BOA deliberately inflated payments with no explanation and that force placed insurance and “mystery” fees are deliberate.  If you are in foreclosure because your payment “mysteriously” grew to where you couldn’t afford it, and then perhaps told to stop paying so a modification that would never happen would “fix” it, maybe it wasn’t a mistake.  Maybe it was a scheme to get those overpriced loans off the books that the banks should have never made in the first place and later realized such.  It’s a different world when a court of law actually allows you to present your evidence isn’t it?  When you, as a homeowner, are actually allowed due process?  Wow.  I can only imagine how much paperwork the bank threw at the homeowner to fight that in court.  Glad to see justice prevailed.  2013-11-21-085932-3

“We need you to show a hardship. However, we see you are current on your mortgage, and that shows you do not need a modification”

October 3, 2013 1 comment

Now in 2013, it is safe to look back and realize that when Bank of America took over Countrywide’s loans (allegedly) that they inherited a mess.  We realized that years later when we learned of Countrywide schemes that are now the subject of litigation.  Schemes such as the “hustle” would drown homeowners in a matter of years, while the bank made sure enough time had gone by to present a statute of limitations argument against homeowner claims.

Sickening.  We know there was fraud at the inception of these loans, and borrowers were not getting the deal they thought they were, and we know there is clearly fraud at the end, as over and over we see the wrong bank in court.  What about in between?  Have we stopped to think about what Bank of America did when they realized what they had purchased (allegedly)?

What did they do?  They had a systematic plan from the beginning. They knew that adjustable rate mortgages would go up to the point where the homeowner would need help and call to inquire about a modification.  They knew Countrywide had given plenty of those type of loans at the height of the market.

The conventional loans were a bigger problem however.  If the payment remained the same then this underwater loan with a high risk of default would stay on their books, and no one wanted that.  Too high of a risk.  So the conventional loans began to see an “escrow shortage”.  Now granted escrow accounts fluctuate, and payments go up if taxes go up or if insurance does.  How does Bank of America explain an escrow shortage of $12,000 in a little over a year?  Would taxes and insurance have risen to the point of an extra $900 a month?

We’ve seen forced placed insurance that is egregious.  I’ve personally seen earthquake insurance being escrowed against a homeowner in North Florida.  A check of the USGS will show you there are no fault lines here, however.  We’ve seen escrow shortages that truly don’t add up.  Is that how Bank of America and the other big four banks decided to get rid of the conventional loans that they really didn’t want?

They knew the adjustable rate borrowers would call, and a conventional borrower would too if escrow caused their payment to act like an adjustable rate.  And that is where both types of borrowers were given the same line:  “We need you to show a hardship.  However, we see you are current on your mortgage, and that shows you do not need a modification”.  And both borrowers would fall for it understandably.  The person who alleges in court they are the holder of the contract (mortgage) just changed the terms in a big way.  Fannie Mae’s new guidelines for servicers even show they are now aware of this.

Now take the Bank of America affidavits and do the math.  1) No intention of qualifying the majority of applications for HAMP; 2) giving incentives to employees for putting homes into foreclosure or “in-house” modifications because they were more profitable and “in-house” modifications had a higher interest rate than HAMP; 3) HAMP didn’t require a borrower to stop payment for a modification but ironically a borrower is required to be 60-days behind for the “in-house” modification that Bank of America preferred as stated by their employees.

Thus, the borrower is lured into default and into Bank of America’s trap.  The never-ending modification cycle with no intention of giving one.  To the homeowner, it is losing a home when they truly did nothing but follow the bank’s instructions, To the bank, it is an improved portfolio.  Which should our justice system protect?

BOA Defeats Class Certification in HAMP Case…is it Over for Homeowners? Or Just Beginning?

September 5, 2013 3 comments

It’s no secret that eyes watching the foreclosure crisis have been watching the class action against Bank of America (BOA) in Massachusetts for some time now.  Today, the Court declined to certify the class, and what that means to us is not what many may think.

It does not mean that the Court ruled the homeowners claims are without merit.  It means that the Court said the homeowners claims do not meet the class action criteria.  Long story short the claims have to contain numerosity, commonality, typicality, and adequacy.  I used to practice in class actions and I can tell you the courts have gotten extremely stringent on what they allow to become certified class-wise.  Do I agree that the HAMP class didn’t meet the criteria?  No.  But these days it would take 22 sets of identical twins, all suffering the same injury at the same time by the same person under the same weather conditions to potentially meet it.  If one-half the sets of twins are under partly cloudy skies and the others under mostly cloudy skies then forget it.  That is how bad it has gotten.  And the famous Walmart case didn’t help things.

Class actions have their pros and cons always.  The upside is usually that people who cannot afford representation can be represented, the cases are massive and we obtain lots of information that we normally would not get from the other side.  The down side is if you are just part of a class you can end up with a lot less than you think.  I’ve been the associate calling people to tell them all they were getting was a magazine subscription for a year after they sued the company.  Not pretty.

But all hope is not lost.  What BOA has been relying on is that there is no private right of action for a homeowner to sue under HAMP, that HAMP was between them and the government, and the homeowner is not a third party beneficiary entitled to sue under it.  But that isn’t what the Court said, and basically we are left with a ruling that says the claims cannot be resolved as a class but can be resolved individually.

The Judge in the HAMP stated that the “Plaintiffs have plausibly alleged that Bank of America utterly failed to administer its HAMP modifications in a timely and efficient way; that in many cases it lost documents, or pretended it had not received them, or arbitrarily denied permanent modifications…Plaintiffs’ claims may well be meritorious….”

So before BOA gets too excited, I’d think long and hard about that.  Individual cases before juries?  Some with punitive damage claims?  Ouch.  Jurors are often more than ready to teach a big corporation a lesson.  Imagine tens of thousands of those cases.  I’m seeing more and more every day.

I think it is safe to say we have all learned a lot from this case.  From the BOA whistleblower affidavits to the Court’s ruling, the information will be used in courtrooms nationwide.  We’ve already seen Judges forcing modifications.  After how much money BOA took from the government and what their own employees state they did with that money while homeowners were suffering damages as a result, there is little doubt this has only just begun.

http://finance.yahoo.com/news/bank-america-defeats-class-certification-140828605.html

Modification Mess…and the Government’s Inaction

July 6, 2013 2 comments

It is common knowledge that now Bank of America’s own employees have stated the bank would have rather foreclosed or offered higher interest rate “in house” alternatives instead of modifying the loans under the Home Affordable Modification Program and directed them to make sure that goal was achieved.  Given that, would there be a light at the end of the tunnel?  Are the Congressional demands for investigation worth anything?

No.  The government knew that the servicers were engaged in egregious behavior.   As reported over and over again on March of 2013, before the Senate Judiciary Committee, Attorney General Holder stated “I am concerned that the size of some of these institutions becomes so large that it does become difficult to prosecute them … When we are hit with indications that if you do prosecute, if you do bring a criminal charge it will have a negative impact on the national economy, perhaps world economy, that is a function of the fact that some of these institutions have become too large. It has an inhibiting impact on our ability to bring resolutions that I think would be more appropriate.”  The Home Affordable Modification Program (HAMP)’s own page administered by Fannie Mae, acknowledges that servicers told homeowners to stop payment.

When HAMP, once sold to homeowners as a promise of help was revamped, they had procedures in place to deal with homeowners who were told to stop making mortgage payments by the banks in order to qualify for a modification.  Combine that with the BOA affidavits which say there was never an intent to modify and the end result is thousands of foreclosure cases pending, with homeowners willing to pay their mortgages, who were prevented from doing so by the banks.  And to make it worse, they have been drug through years and years of modification attempts where their payments were not accepted, and the bank now has the audacity to come to court and ask for all the back payments they would not accept and attorney’s fees for the bank bringing a foreclosure.  That is the judgment the bank is asking for.  It is extortion at an extreme that is incredible.

One would think this is so horrific – “homeowners told to stop payment for a modification?” that even given the legislative and executive stance (or lack thereof) on the issue, that the judiciary would right this wrong.

Wrong.  The judiciary has consistently held that homeowners are not “third-party beneficiaries” under any of these agreements, new legislation, consent orders, judgments, etc.  Therefore, they have no right to raise the argument, and they have no right to a loan modification (although tort and contract law are still alive and well – just make sure you aren’t suing to get a modification).  So what was HAMP passed for exactly?

Given that when the program was revamped, the government knew of bank errors that were as huge as the “stop paying” deal, it appears HAMP was passed to do absolutely nothing.  The government will shell out billions – if not trillions – to banks pretending to consider files for HAMP, but they will do nothing when a bank accepts that money and doesn’t follow the rules.  The only thing the program managed to do is lure people into default, give them false hope, and make sure the foreclosure goes through.  Why would they not correct the errors of the banks already affected when they revamped the program?  Why wouldn’t they have made it known that thousands of homeowners were sitting in limbo on their home in Court all because a bank caused a default?

Go back to Holder’s comments.  The end result is too big, the end result is too much, the end result hurts the economy.  To truly prosecute them runs way beyond the HAMP scandal.  Were the banks considering loans that they even had authority to consider?  That they had the authority to modify?  Did the loan really belong to someone else?  Why are multiple lenders suing a single homeowner for foreclosure over the same loan?  How many foreclosure mediations were successful?  Mediation rules about the person being there required to have the authority to settle?  How often is Fannie or Freddie at a mediation?

The banks cutting corners all these years has created a mess that the government will not clean up, any willingness to do so stops every time they hear the word “Wall Street”.  So for everyone who has seen “A Civil Action” that remembers the fight John Travolta (playing Jan Schlichtmann) had on his hands that was ultimately lost, until the very end when the Environmental Protection Agency packet is delivered to Robert Duvall (as the Defense attorney for the corporation) and had that “ooooooooooohhhhh” moment.  That the “the government is going to help so it is not over” moment.  Don’t hold your breath this time.