United States and Florida law is much different from laws around the rest of the world.  Specifically with the advent of so many bank owned properties, foreclosures, liens, judgments and other crucial instruments that may cloud title. The single most important thing a real estate investor can do is hire the services of an attorney to protect their interests and make sure all is clear at the time of closing.

Title insurance can only protect the buyer so much.  Inspections, as well as surveys can reveal items unknown to the buyer and perhaps not revealed by the seller until its too late.   Moreover, many mortgages have switched hands and been transferred and the buyer must make absolutely sure that title is free and clear of any mortgages.

Whether you need assistance buying or selling, review of a contract, researching any title issues, title insurance, title services, escrow services,  or any other real estate service, the first consultation is always free of charge.

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The transfer of a property by virtue of a Quit Claim Deed removes the person from title, however does not relieve the person from a mortgage debt or obligation under the terms of the Promissory Note.  Often times, borrowers believe that by filing a Chapter 7 bankruptcy or Chapter 13 to include the mortgage debt, that they have in fact delivered the property or title to the bank that holds the mortgage. However, this is not the case.

The bank must still go through the foreclosure procedure in order to obtain a judgment to sell it at auction, and have the certificate of title transferred to it.

Moreover, a quit claim deed while removing one or several persons from title, does not remove any other lien nor relieve the borrower from any other debt against the property.

Anyone interested in finding out about the consequences, requirements and effect of a quit claim deed should speak to an attorney prior to signing, to make sure the final desire is addressed by a quit claim deed.

The first consultation is always free of charge.

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On June 7,2013 HB87, also referred to as the “Speedy Foreclosure Law” went into effect.  HB87 greatly reduces the bank’s requirements, in filing a foreclosure lawsuit, to prove the mortgage agreement.  More importantly, it shortens the timeline for having a foreclosure complaint or action to reach the end of the case and be put up for foreclosure sale and auction.

HB87, Section §702.10 also turns due process laws afforded homeowners and parties to a foreclosure action upside down!

The Plaintiff, or lender, can request what is referred to as an “Order to Show Cause for the entry of Final Judgment in Foreclosure”.  The court is then put on notice to immediately review the case without a hearing.  That means, a Judge is going to review the bank’s request to end the case and sell the home, without affording the Defendant homeowner an opportunity to argue their case on the merits.  Justice is now sacrificed since, as history dictates, many lenders are not completely honest in their dealings, and have both forged or prepared instruments, assignments and other pertinent documents and filed them with the courts.  A Judge would not have any way of knowing whether the documents are valid or not.

Section §702.10(1)(a)(1) also allows a Judge to review the complaint without a hearing and issue an order to show cause to the homeowner. The homeowner  must then show cause why the house should not be sold.  The timelines for this is 20 to 45 days after starting the complaint.  This results in a very short timeline to discover evidence and find any defenses in the case that could win the case at trial for a homeowner.

This also violates the Florida Rules of Civil Procedure in that if any depositions of bank witnesses or interrogatories want to be requested by the Defendant, they would not be allowed to do so.  Discovery rules almost always implement a 30 day response window. By mandating a response within 20 to 45 days after service, discovery is not possible.

By hiring an attorney to review the foreclosure complaint, the moment you are served, and raise defenses as early as possible, the Order to Show Cause can be cancelled and the case move through the necessary steps to protect the homeowner.  The best advice then is to make sure the homeowner has an attorney on their side to review and stop the speedy foreclosure, and protect the homeowners rights.

At the Law Offices of Jacqueline A. Salcines, PA, we have been assisting homeowners and borrowers for almost 14 years now. We can help you save your home too.  Call today for a free consultation and to see what we can do for you.

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On June 17, 2013, Governor Rick Scott signed into law House Bill 87, known as Chapter 2013-137, which changes the procedure for the filing and processing of foreclosures by lenders in Florida.  In the advent of so much foreclosure fraud committed by Plaintiff banks, and bank’s attorneys, the bill favors the homeowners and requires additional safeguards by the lenders and their counsel when filing foreclosure lawsuits against homeowners.

The law creates Florida Statutes §702.015 that in essence requires additional checks and balance by the lender by their counsel filing suit, in order to move the foreclosure through the court.  While once complete, the foreclosure will go through more rapidly than previously, to get it through requires more work and diligence on the part of the lender.

The following is just some of the key changes made with this bill:

1. Lender must affirmatively allege in the body of its foreclosure complaint that it is the holder of the original note secured by the mortgage.  If not, then they must include paragraphs alleging how it is that it is entitled to enforce the terms of the note (owner, holder, servicer)
2. If the party bringing suit has been given authority by the holder to bring the action against the borrower, the complaint must detail the exact authority granted and identify the specific document that grants this servicer the authority.
3. When the Plaintiff is the holder of the note, the Note must be attached to the complaint AND there must be a certificate or verification stating that “under penalties of perjury” it possesses the original note and provide specific details as to where it is, the exact physical location of it and Plaintiff’s verification of it.
4. If the note has been lost, the Plaintiff must execute an affidavit that “under penalties of perjury” it has been lost or stolen, and include (a) a chain of all endorsements, assignments or transfers of the note; (2) facts showing the Plaintiff is entitled to enforce it; and (3) enclose copies of the note, allonge or other physical receipt of the original note evidencing ownership and possession.

If any of this is missing, the Defendant homeowner is in a great position to file a Motion to Dismiss and have the complaint in foreclosure dismissed for Plaintiff’s failure to comply with law.

Your best defense against foreclosure is to have a knowledgeable attorney review your documents and protect your rights and defenses against the lender before its too late.

We are a phone call away.

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LAW OFFICES OF JACQUELINE A. SALCINES, P.A.