HOW TO QUASH SERVICE ON A FORECLOSURE SUIT

House and lawOnce a lawsuit in foreclosure is filed, a defendant has 20 days to file an answer.  However, the service must be proper in order to be valid.  Florida Rules of Civil Procedure require a process server, and not the Plaintiff, to serve the Defendant.  Service must be performed by personally finding the defendant and handing them the foreclosure complaint. This can be done at either the residence, place of employment or any other place where the Defendant is found.  If at the residence, it does not need to be served on the named Defendant but can be served on anyone over the age of 16 that opens the door.

If the Defendant is married, the spouse must also be served, and can also accept service on behalf of the other spouse.

After three unsuccessful attempts at service, the Plaintiff can serve by publication. This typically means that the lawsuit notice is published in the Daily Business Review for three consecutive weeks, and then the defendant is considered served.  Often, however, the Defendant does not read this newspaper and therefore does not know that the 20 days has started.

If the above rules were not followed however, for example, someone under 16 accepted, or the notice was published without the proper three days attempt, then the service of process can be dissolved or “quashed” forcing the Plaintiff to reserve the defendant properly.

If you suspect that you have been served by publication, the best way thing to do is speak to an attorney in order to run your docket and advise if an Affidavit of Service and three attempts appears in the docket.  The clerk of court online site, for instance  the Miami Dade Clerk or Broward Clerk, both have online sites where the docket can be reviewed and service or publication verified.

Otherwise, speak to an attorney to assist and guide you.   The first consult is always free of charge.

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HOW TO ANSWER A FORECLOSURE COMPLAINT LAWSUIT

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???? Vol.5 ??????When served with a foreclosure lawsuit, a defendant has 20 calendar days to file their answer with the court and the bank’s attorney.  The 20 day time period starts the day that the defendant is served.  Service by a process server, or pseudo-sheriff is required, and the foreclosure can not merely be mailed or left on your door step.  The process server is only required to serve anyone over 16 that resides at the household, even if it is not the named defendant.  Often, family members of children accept service on the borrowers behalf and leave the papers lying around, which often leads to defendants being defaulted for not timely filing their answer.

Once served, the best thing to do is hire an attorney. Only by having an experienced and knowledgeable ally on your side, that can review the foreclosure and make sure that the bank through their attorney, has followed all of the rules of procedure in serving you and attaching all required documents to the complaint, can you be sure that your rights are 100 percent protected.

The first document filed with the court should be a motion to dismiss, assuming there are grounds for dismissal of the suit.  Often, defendants that appear pro se, file an “Answer” and tell the court that they are attempting to modify the loan or that they have no ability to pay it.  This tactic while great in serving to stop the 20 days and avoid a default, actually is not a great move on the part of the Defendant.  Certain defenses and procedural inaccuracies, such as jurisdiction and service, if not claimed on the first document filed with the court, are considered waived and can not be later brought up before the Judge.

What can be raised on a motion to dismiss:

  • Jurisdiction of the court – is the lawsuit filed in the proper courthouse, in the proper venue where the property is located?
  • Was the defendant properly served with a process server?  Was the recipient over 16 years of age?
  • Was the spouse served if married?
  • Bond – is the Plaintiff a Florida based corporation or authorized to do business in Florida? If no, then they can not file a lawsuit without posting a bond.
  • Acceleration Notice – did the lender send the correct acceleration notice to the borrower and attach it to the complaint?
  • Notice of Default – was the borrower sent the correct notice of default in written correspondence?
  • RESPA – were RESPA rules violated?
  • Is the Plaintiff the proper party to bring the lawsuit?  Is it the named lender in the mortgage documents? If not, are the proper assignments attached?
  • Are the assignments recorded?  Was the borrower placed on notice?
  • Did the lender attach the correct certifications as to the location and holder of the original note?
  • Did the banks attorney attach the note to the complaint?

This is only a sample of the many different issues that an attorney looks for when combing over a complaint in order to draft a proper motion.

Foreclosure defense by an attorney does not have to be expensive and is your best line of defense to protect yourself in order to save your home or short sale it in order to walk away from the balance.

The first consultation with me is free and can provide the much needed guidance in order to protect your rights and provide you the time you need to save your home and obtain the loss mitigation option that is right for you.

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HAVING DIFFICULTY PAYING YOUR MORTGAGE – LOAN MODIFICATIONS AND SHORT SALE SERVICES

Hands - Holding HouseIF YOU ARE EXPERIENCING TROUBLE MAKING YOUR MORTGAGE PAYMENTS, ANTICIPATE A JOB LOSS OR LOSS OF INCOME, OR A MEDICAL CONDITION OR DIVORCE HAS LEFT YOU UNABLE TO MAKE THE MORTGAGE PAYMENT, WE ARE HERE TO HELP!

AT THE LAW OFFICES OF JACQUELINE A. SALCINES, P.A. WE HAVE BEEN ASSISTING BORROWERS WITH THEIR BANKING AND REAL ESTATE NEEDS FOR OVER 14 YEARS.

WHAT SETS US APART, IS THAT I LISTEN TO THE CLIENT.  OFTEN A CLIENT WANTS TO SAVE THEIR HOME AND VISIT THE LAW OFFICES OF AN ATTORNEY WHOSE ULTIMATE GOAL AND BULK OF THEIR PRACTICE IS BANKRUPTCY.  WITH THAT END GOAL IN SITE, THEY MAY STEER THE CLIENT TO JUST “GAIN TIME”, WHILE COLLECTING A MONTHLY ATTORNEY FEE, TO ONLY LOSE THEIR HOME IN THE END, FORCING THE BORROWER TO HAVE TO FILE A BANKRUPTCY.

HOWEVER, AT MY FIRM, FIRST AND FOREMOST, WE EVALUATE THE CLIENT FOR THEIR ULTIMATE WISH. IF THE DESIRE IS TO SAVE THE HOME WITH A LOAN MODIFICATION, THE CLIENT MAY NOT HAVE THE MEANS, THE INCOME OR THE ABILITY TO STAY IN THEIR HOME.  OUR LOAN MODIFICATION PROGRAM ALLOWS US TO EVALUATE THE MORTGAGE BALANCE, WHETHER THE HOMEOWNER IS ENTITLED TO A PRINCIPAL REDUCTION, ELIMINATE FORCE PLACED INSURANCE, TO SEE IF THE  NEW MORTGAGE PAYMENT IS SOMETHING THAT THEY CAN AFFORD.

IF THEY CAN NOT, THEN THERE ARE A MYRIAD OF OTHER OPTIONS AVAILABLE, SUCH AS A DEED IN LIEU OF FORECLOSURE, A SHORT SALE, A FOREBEARANCE OR DEBT SETTLEMENT.

OFTEN A SECOND MORTGAGE MAY BE ASSUMED OWED, HOWEVER IF DISCHARGED OR WRITTEN OFF THEN THE LENDER IS REQUIRED TO FILE A SATISFACTION OF MORTGAGE. ONCE THAT IS DONE, THAT M MORTGAGE CAN BE IGNORED.  OR WE CAN NEGOTIATE WITH THE SECOND MORTGAGE, WHETHER A HELOC OR OTHER LINE OF CREDIT, OFTEN TO ACCEPT PENNIES ON THE DOLLAR AND ISSUE A COMPLETE SATISFACTION OF MORTGAGE. THAT LEAVES MORE INCOME TO SUPPORT A LOAN MODIFICATION.

CALL OR EMAIL ME TODAY TO SEE WHAT OPTIONS ARE AVAILABLE TO YOU

THE FIRST CONSULT IS ALWAYS FREE OF CHARGE.

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REAL ESTATE LAW AND TITLE SERVICES

If you are in the market to buy or sell real estate, looking for a title agent to examine and issue a title commitment, looking for someone to review any liens on the property prior to bidding on an REO, Fannie Mae, HomePath or Freddie Mac property, or need to create a business to purchase and take title to new real estate, contact us.

At the Law Offices of Jacqueline A. Salcines, PA, we have been assisting consumers with the purchase and sale of their real estate for almost 15 years.  Attorney Jacqueline A. Salcines, PA is a title agent, real estate lawyer and accountant, and can assist with a myriad of real estate and business law needs including:

  • Title Insurance
  • Closing Services Drafting of Contracts
  • Negotiating Contracts
  • Commercial Transactions
  • Incorporation of businesses/LLC for deed purposes
  • Powers of Attorney
  • Quit Claim Deeds
  • Escrow Services
  • Suits for returns of Deposits
  • 1031 Exchanges

And a whole lot more.

Before you enter into a contract, contact us. We can, at no charge to you, assist you with contract preparation and review, submit to the seller or buyer, and are there for you the whole way.

Before you enter into a binding application for a loan, at no charge to you, we can review the Good Faith Estimate and advise whether the charges are valid or not, and provide you with an estimated HUD so you can have a pretty close to true estimate of closing costs and closing proceeds.

Call or email us today. The first consult is always free of charge.

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GOOD NEWS FOR BORROWERS WITH LESS THAN STELLAR CREDIT

Hand with a house key. In the market to purchase a new property and think that your derogatory credit, foreclosure, prior short sale, bankruptcy, deed in lieu or mortgage default will prohibit you from obtaining a new loan?  Think again.  Fannie Mae released a report that it intends to revise the waiting period, from seven to four years for borrowers that have less than great credit.  In some cases, with extenuating circumstances, the four year waiting period has been reduced to two years.  Extenuating circumstances are nonrecurring events beyond the borrowers control, such as an unexpected reduction in income or sudden catastrophic event.

If a borrower has a previous foreclosure on their credit report, Fannie Mae would require, in prior years, for them to wait seven years to obtain a new Fannie Mae loan. However, under the new relaxed waiting period, with extenuating circumstances, it is now three.

For those with prior bankruptcies, the waiting period is four years, and shortened to two yeas with extenuating circumstances.

Fannie Mae is making a strong effort to help credit worthy buyers that were heavily affected in the mortgage crisis, to reenter the real estate market as homeowners, and is committed and focused to help lenders make sure they are able to allow such borrowers access to their programs.

The new relaxed policy goes into effect for applications after August 16, 2014.

Further details can be found on the Fannie Mae website or speak to your mortgage broker.

Or call or write us today, to put you in touch with our mortgage partners so that we can work together to find you the home and financing of your dreams.

The first consultation is always free.

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COLLECTION OF DEFICIENCY AFTER FORECLOSURE

The new wave taking over the courthouse these days, is lenders filing suits against the prior homeowner/borrower for the deficiency of the mortgage judgment, after the foreclosure auction or short sale.  A deficiency balance is the short fall, or balance that is left due and owing, after a property either sells on the foreclosure auction or in a short sale.  With relation to a short sale, a deficiency balance can almost always be negotiated to be “waived” or forever forgiven so that the lender does not and can not come after the borrower for any monies owed post closing. That is, the lender agrees to receive a certain NET or proceeds, and call it a day after the borrower.  In this scenario a Satisfaction of Mortgage must be issued, signed and recorded against title to the property to make title marketable to the new owner.

In a foreclosure auction, a judgment is the amount the borrower is left owing after the case ends.  Often times, however, the lender will not recuperate the full judgment amount at the foreclosure bidding site.  The balance is called the deficiency.  The lender then has one year to collect on that deficiency.

New laws and statutes with shortened time periods to collect that deficiency have been recently enacted. Although consumers don’t know it and lenders file suits anyhow, that is the biggest defense a consumer has to defeat the suit.

If you are facing a lawsuit for a deficiency balance, or your short sale lender does not want to negotiate the waiver of deficiency, speak to an attorney today.  At the Law Offices of Jacqueline A. Salcines, PA, we are not only experienced and knowledgeable on how to handle the negotiation of these deficiencies, but we defend borrowers every day against such suits.  Call or write for a free evaluation of your case today. The first consultation is always free of charge.

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ADDITIONAL FORECLOSURE PROTECTION EXPECTED FOR CONSUMERS BY CFPB

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Way Signs "Bailout - Collapse"In an announcement Thursday afternoon, the Consumer Financial Protection Bureau said it will engage in additional foreclosure protection to consumers. The announcement comes on the heals of a recorded $16 Billion record settlement by Bank of America for violations in failing to resolve its claims related to its toxic mortgages leading up to the financial crisis.

Among the proposed rules would be a requirement that servicers actively participate in extending additional loss mitigation options to its borrowers in crisis. Those targeted are consumers that brought their loans current during the mortgage crisis, either through a loss mitigation option or otherwise, but are still struggling.  Those who obtained permanent loan modifications and have made payments as required, but have suffered an unexpected death of a spouse, medical bills or otherwise, will be targeted for assistance.

Mortgage Heirs.  Equally as important, are the excluded class, that has struggled so hard to obtain loss mitigation options, after the death of the mortgagor, but has faced probate hurdles, with lenders excluding them since they did not sign the note or mortgage.  Mortgage heirs, or successors in interest of the properties left behind by mothers, fathers, deceased spouses, or property transferred through a family trust, or through death of a joint tenant, will be afforded additional protection.  The lenders will be required to work with them to identify and communicate about possible loss mitigation options available to ensure the heirs receive foreclosure protection.

Divorced spouses.  Property transferred through a divorce settlement, wherein one spouse wants to keep the house and is unable to due to the loss of income from the other spouse, will also be afforded protection under the proposed measures.

Additional safeguards are also proposed to ensure lenders work with borrowers once the loss mitigation applications are received. Included in such protections, which has been the center of much complaints over the years since the Making Home Affordable Program began are:

Loan Service Transfers during a pending loan modification.  Under the proposed plan, borrowers will need to be timely notified of any service transfer when the loss mitigation applications are in process or complete. If completed and approved, the new servicer would be required to evaluate it within 30 days of receipt.  If incomplete, other safeguards will be put in place.  For involuntary transfers to new servicers, the new servicer would have 15 days to evaluate it from transfer.

Bankrupt Borrowers.  Servicers will be required to provide early intervention notices to let borrowers know of their options prior to filing for bankruptcy.

And perhaps the greatest proposed measure:

Stalling a foreclosure during the pendency of a loan modification application. This seems to be the number one misconception for many borrowers, particularly the elderly, and non-native Americans, or Hispanics, who are under the false impression that applying for a modification will stop or stall the initiation of a foreclosure.  While measures and protections were already in place with prior CFPB regulations, lenders often failed to follow them.  The proposed CFPB measures will more strictly monitor this requirement to make sure lenders take adequate steps to work with borrowers so that wrongful foreclosures are not initiated, costing millions of dollars in attorneys fees, and costs, for wrongfully initiated foreclosures.

A full summary of the proposal can be found on the Consumer Financial Protection Bureau website.  The rules and disclosures are open for public comment for 90 days after publication in the Federal Register.

For additional information, call attorney Jacqueline A. Salcines, Esq.  We are well versed in all the Consumer Financial Protection Bureau rules and regulations as well as hold lenders accountable for their loss mitigation violations.  We work closely with consumers to make sure they are qualified for the type of loss mitigation program they desire,  and then work zealously to obtain those goals on behalf of the consumer client.

Call us today for a free consultation to see if you qualify for a loss mitigation program.

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