Florida Foreclosure Case- Homeowners Win in Appeal
A Florida appeals court sided with homeowners Cesar and Ruth Vidal in Broward County in south Florida. They have a home in North Lauderdale. The bank foreclosed on their home.
The homeowners took their case to the County Circuit Court where they lost and that court favored in behalf of the lender.
Then the homeowners appealed their case in the Fourth District Court of Appeals who ruled that the foreclosure must be overturned.
This is not the first homeowner that has won a case in Florida courts regarding their foreclosure.
Florida is a judicial state. We are also a deed state. This means that the banks must go through a judicial process of sueing the homeowner in court, called a lis pendens filing, and then the homeowner becomes the defendent. As the defendent the homeowner gets to bring forth a defense and a case to the judge about why the bank should not foreclose on them.
Now the fact is that it is not easy for the homeowner to win a case. If you are not making your mortgage payments you have defaulted on your promise to pay back the money you borrowed from your bank to buy your home. At the end of the day, the piper must be paid.
But this is why the judicial process is so important for us who own property in Florida. Be mindful of that and do what you can to keep supporting us to have a judicial foreclosure system. There are times when banks err and in non recourse states you don’t have a prayer.
The judge in the appeals court in this case also rules that the Vidals could continue to seek damages and try to have their mortgage canceled on the grounds that their lender, Liquidation Properties Inc allegedly violated the Truth in Lending Act.
We know of a couple other cases where judges have canceled the homeowners mortgage because of harrassment and violations of the Fair Credit Act. These cases are rare though so don’t go starting to make a case like this without good evidence in your favor.
Some people use the judicial process to delay the ultimate end reality that they are going to have to move out of their home. Again, this is better than not having a judicial process.
The banks complain that the judicial process takes too long here in Florida, the average time is over 800 days now. Some people want this to hurry up to stop the bleeding however we must always be careful of the unintended consequences of quick solutions. Stay vigilant in our rights to keep our judicial process.
The Vidal case though, could set a precedent and could affect thousands of homeowners which is a win for homeowners.
We are not attorneys and we are NOT giving any legal advice, we are just reporting the news.
Home Affordable Foreclosure Alternatives HAFA Program
The U.S. government created the HAFA program for homeowners in danger of losing their homes to foreclosure.
The HAFA program is known as the Home Affordable Foreclosure Alternatives Program. HAFA is the acronym for this program.
If you can no longer afford to make the mortgage payments on your home this program might help you. The good part about the HAFA program is that IF your mortgage lender participates in the HAFA program you MAY be eligible for up to $3,000 in relocation money given to you at the closing of your short sale or deed in lieu.
Please note that NOT all lenders participate in HAFA nor do they have to. It is a voluntary program for lenders. All the major big lenders to participate as part of an agreement they made with the government when they got their bail out money.
If you have more than one mortgage on your home both of your lenders must agree to participate in HAFA. Many times your second lien holder is not going to be so amiable but that depends on how much you owe them.
Doing a Florida short sale is a way to participate in the HAFA program. Another benefit of the HAFA program is that you will no longer be responsible for the remaining amount that you would owe your lender. When you do a short sale you still owe the difference between what your mortgage amount is and what you sell the house for. HAFA terms require your lender to release you from any obligation to repay that amount of money and also relieves you of them coming after you later for a judgment.
Doing a short sale has less impact on your credit score than a foreclosure. Very seldom is a foreclosure a better option than a short sale.
The bad part is there is government red tape involved which can drag out the process. If you do not turn in one document within their time frame they can and do many times turn down your HAFA eligibility. This is very important to understand. This is also why it is very important for you to choose a Realtor® who is experienced in listing and negotiating short sales.
You can learn more about the HAFA program on the Making Homes Affordable .gov website.
Contact Nestor Gasset and Katerina Gasset for further information about the HAFA program and if it the right fit for you at 561-753-0135. This is a free confidential call. The call is not recorded. We will go over your foreclosure options so you can decide the best course of action to take for your own individual situation.
Florida Foreclosure Attorney is Disbarred – Another One Bites The Dust
This time it is Fort Lauderdale attorney William Timothy O’Toole. The Florida Attorney General sued the Foreclosure Defense and Loan Modification operation that O’Toole ran.
The Florida State Supreme court disbarred him this week. The disbarrment must last at least 5 years.
In April he was suspended in what is called an “emergency suspension” on the allegation that his business was causing “great public harm”. This is what the court order said.
The name of his company is “O’Toole’s Summit Legal Group” and is in Boca Raton Florida. This company employed sales people who would make calls to homeowners all over the country not just here in Florida. He worked with at least 3,000 clients according to the court order.
These salespeople would charge up front fees of $2,000 to $3,000 and promised to save struggling homeowners from foreclosure. But the law suit says, that this attorney and his company did little to nothing to work on the cases. There are dozens of complaints by homeowners who paid this money and got nothing in return. These complaints went to the Florida Attorney General.
O’Toole has been a member of the Florida Bar since 1992. He has been involved in 20 bar complaints.
In October the Florida Attorney General got a court order to shut down his operation.
The disbarment order also says that O’Toole became partners with a non-attorney named Randy Baker and split his fees with him which is against bar rules.
The order also says that O’Toole led clients to believe that he was handling their cases when in fact, people he hired who had NO legal training were the ones taking care of his clients.
This happens alot where the attorney becomes partners with someone who is not an attorney since the law passed here in Florida stating that only attorneys can accept upfront fees from a client for a loan modification. But attorneys can only charge those fees if they are a part of a bigger case.
We know attorneys who are approached often with these sorts of scenarios. The attorneys we know say this is unethical and they run away from those people who are trying to circumvent the law.
The Florida Bar came out to warn attorneys about joining forces with non-legal businesses who are trying to skirt the law forbidding taking the upfront fees.