BEWARE – FRAUDULENT DEEDS CONVEYING BANK OWNED REO ARE CIRCULATING IN FLORIDA

My underwriter, Old Republic National Title Insurance, Inc, through Attorneys Title Fund, LLC recently notified its agents that they were seeing a large number of claims in Hands - Holding HouseFlorida emerging from forged deeds on foreclosed or bank owned properties.  The deeds were almost always into trust and the transaction that was insured in the one from the trust to the new, innocent buyer.

How it works:

  1. The property is foreclosed on and the bank acquires it.
  2. A special warranty deed is recorded that looks to be from an officer in the lender/bank’s office
  3. The notary is almost always out of South Carolina
  4. The Grantee of the deed is a Trust.  Not a trustee of the trust.
  5. Minimal docs stamps are then paid on the transfer

While there is nothing wrong with this transaction and many legitimate deals occur like this, the red flag or scam is that the grantee is a trust not the trustee of the trust.  Moreover, only nominal stamps are paid for the transfer to the trust.

Lenders who are victimized by this type of fraud need to then file quiet title actions to re-establish and perfect title to the property.

Title agents and real estate attorneys are urged to check, and double check their closing documents and chain of title.  If fraud is suspected, then you may need to contact  your underwriter for the proper course of action.

If you suspect an REO deed in the chain of title is fraudulent, you will also need to check with the actual lender (not the one signing the deed) to confirm the validity of the deed.

This is a major problem for unsuspecting buyers and investors and lends itself to the importance of hiring a knowledgeable real estate attorney to be in your corner to protect you from this type of fraud.

At the Law Offices of Jacqueline A. Salcines, PA, the attorney Jacqueline A. Salcines, Esq., as an agent for Old Republic National Title Insurance, is keenly aware of this fraud and knows how to search for it and discover it.  It makes sense to hire a knowledgeable real estate attorney to stand in your corner and protect you.

The consultation is always free of charge.  Call us today to discuss your future investments.

Jacqueline A. Salcines, Esq.

Law Offices of Jacqueline A. Salcines, PA

706 S. Dixie Highway 2nd Floor

Coral Gables, FL 33146

Tel:  305  |  669  | 5280

 

TRUST   |   COMMITMENT  |   RESULTS

 

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SHORT SALE AND THE 1099 C

House and lawMany homeowners that want to short sale their properties are misinformed, thinking that they can not escape the 1099-C tax, and must pay the Internal Revenue Service a capital gains tax on the forgiven debt, under a 1099-C (C stands for  cancellation of  debt).  The 1099-C is a form required  by the Internal Revenue Services and prepared  by the lender or creditor who forgives a portion of debt, be it under a mortgage, credit card or other type of loan.   Borrowers receive the 1099 C and must report them in the tax return the following year.

In a short sale, the very essence of a short sale entails a short payoff, or cancellation of debt.  Since the mortgage lender agrees to accept a sum less than what is owed on the mortgage, it is agreeing to cancel a portion of its debt.  Therefore, it is required to file a 1099-C with the Internal Revenue Service, and copy to Borrower, to advise that a portion of debt has been cancelled.  The borrower is then obligated to file that 1099 C with their income tax the following year and report the cancellation.

The Confusion and misinformation that most homeowners have is that the 1099 C is inescapable and a necessary part of the short sale. They are under the mistaken belief that each and every short sale comes with a catch.  The debt is forgiven, but monies are owed the Internal Revenue Service.

THIS IS FALSE.  LET ME REPEAT THAT.  THIS IS FALSE AND INACCURATE

Borrowers whose short sales are primary residences (and that also is open for interpretation) are not required to pay any tax to the Internal Revenue Service.  While they will receive a 1099-C, under the Mortgage Debt Relief Act of 2007, they are exempt from having to pay any tax to the Internal Revenue Service.  The Mortgage Debt Relief Act of 2007, which extended relief on short sales through December 31, 2013, states that homeowners whose balances are written off in a short sale do not have to pay any taxes to the IRS due to the cancellation of debt.

And this is not a guessing game.  The law is very clear and on the Mortgage Debt Relief Act website, on the Internal Revenue website and many times, the short sale approval letter will state so.

My best advice when venturing into a short sale, is to hire the services of a qualified and knowledgeable attorney/accountant to negotiate the short sale for you in order to make sure, prior to entering into the short sale, that you will be exempt from having to pay anything.  Moreover, you may be eligible to receive up to $30,000.00 from your lender, as a short sale incentive and for moving expenses.”  Jacqueline A. Salcines, Esq., Attorney and Accountant.

At the Law Offices of Jacqueline A. Salcines, PA, we have an entire team of short sale negotiators, headed by attorney Salcines herself, who is both an accountant and a real estate lawyer.  We work day in and day out to get the short sale approved on the best terms possible for the homeowner borrower.

Hiring a realtor or negotiator that is not familiar with IRS rules or regulations, is not familiar with the law and most importantly can not charge you to negotiate your short sale up front, therefore reducing incentives to work on it, makes no sense when so much is at stake.  Particularly, since the 1099 protection is set to expire on December 31, 2013 unless extended by Congress.

Call me for a free, no obligation consultation to see whether a short sale is right for you.

We find the best possible solution to your loan problems, including loan modifications, short sale, deed in lieu, or perhaps even a settlement of the loan.

The Law Offices of Jacqueline A. Salcines, PA

305  |   669  | 5280

 TRUST   |   COMMITMENT   |    RESULTS

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IS A REVERSE MORTGAGE RIGHT FOR YOU

For homeowners who are lucky enough to have equity, and no longer wish to make mortgage payments, a Reverse Mortgage may be the answer.  A reverse mortgage is a special type of home loan that allows homeowners to convert the equity that they have acquired in their home over the years and turn it into cash.  The great thing about reverse mortgages is that you receive money AND are no longer required to make any mortgage payments.  You do not ever have to repay the loan unless the borrower no longer uses the home as their principal residence or they fail to meet the obligations of the mortgage.

Reverse mortgages were started to help people in or near retirement with limited income, so they could use the income they had to pay off debts and for living expenses, never having to worry about another mortgage payment.  The loan is called a reverse mortgage because instead of having the balance reduced, as in conventional mortgages, in a reverse mortgage, the monthly payments to the lender are added to the balance, thus increasing the principal instead of reducing it.

The borrower is not ever required to pay back the loan unless the home is sold or as stated above, the property stops being used as a primary residence.  The borrower must however make the required tax and insurance payments.

QUALIFICATIONS.

In order to qualify, the borrower must be at least 62 years old. A husband and wife or wife with spouse younger than 62 may obtain one, but the name of the younger spouse must come off title.

OTHER REQUIREMENTS

The loan must act as the primary loan on the property. It can not be secondary to any other loan.

The borrower must remain current on all tax and insurance payments.

The borrower must maintain the property in good condition.

FEES AND COSTS

Reverse mortgages are relatively inexpensive.  The regular Origination fee, mortgage insurance premium, appraisal fee and closing fees apply, as with a regular closing. And if there is enough equity, the closing costs can be added to the loan so you do not have to pay anything at closing.

PRUDENT TO USE AN ATTORNEY

A reverse mortgage is a Closing.  That is, you will be required to have title examined for the lender, a policy written and a mortgage, note and other lender documents signed, as with a regular closing. Therefore, it is prudent to hire the services of a real estate attorney that is a title agent such as Jacqueline A. Salcines, PA, in order to examine title, issue the title policy, review the Good Faith Estimate with charges from the lender, and most important, explain each and every document that you will be required to sign at closing.

Call us today for a no-fee consultation. We can explore whether a Reverse Mortgage is right for you and put you in contact with lenders that will find the best possible solution for you, while we represent you every step of the way. It is a small price to pay for peace of mind.

Law Offices of Jacqueline A. Salcines, PA

305 |  669  | 5280

706 S. Dixie Highway

Second Floor

Coral Gables, FL  33146

 

TRUST   |    COMMITMENT    | RESULTS

 

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OBTAINING THE RIGHT FORECLOSURE ATTORNEY CAN SAVE YOUR HOME

Hands - Holding HouseGovernor Rick Scott signed a bill that aims to move foreclosure through the court system more quickly, but some homeowners are weary that this will strip them of crucial rights they have as homeowners and mortgagors.  House Bill 87 places on the Plaintiff/Bank, the responsibility of filing cases with a clear “chain of ownership” of the mortgage and note as well a clear chain of how the delinquency occurred. This translates into a more time consuming task for the lender prior to filing suit, but less defenses and time for the borrower once the suit is commenced.

If the lender has filed all the required documents and the file is in order, the Plaintiff/lender seeks what is called a “show cause” order asking the Judge to aware it a final judgment, and ultimately the sale of the home.  Resulting in the home owner losing their home and the bank retaining a judgment against them.

More and more judges have also been appointed to cover the backlog.  Judges that are either retired senior judges or other, which neither face re-election or re-appointment, as required by the Florida Constitution.  So this opens up a whole other can of worms as to accountability, qualifications and credibility.

Florida attorneys, specially in the Miami-Dade, Broward and Palm Beach counties, have done a huge disservice to their clients by merely charging a monthly fee to keep their homes in foreclosure, but pulling the plug when the cases are set for trial or sale.  This is when, after $15,000 or $20,000.00 in legal fees, the attorneys usually withdraw or disappear.  Miami Dade County Judges have started the practice of reporting many of these no-show attorneys to The Florida Bar.  Clients show up to court for either a Final Judgment hearing or trial, and the attorney, who claims monies are owed, fails to show.  Even after such sums were paid.  The Judge may enter a summary final judgment against the borrower and now they are left with a balance owed and no home.

The proper foreclosure defense must, in my opinion, entail the finding of a viable solution for the homeowner/borrower.  To merely buy time (which in some cases may work), leaves the borrowers free and clear of a mortgage payment, but with a judgment and no home.  When clients come in to defend a foreclosure, it makes more sense to review their files for either a loan modification or a short sale, whichever the numbers support.  And then start the loss mitigation procedure immediately.

Some short sale homeowners want to continue to live for free for as many months as possible. And while the proper foreclosure defense will certainly offer them this, the property can be listed for sale with a realtor, the package initiated with the lender and a short sale, without contract approved.  Afterwards, once the price is determined, a buyer is sought at their leisure that will come in at the approved price.  It is never advisable to just sit back and ride out the foreclosure without a solution in sight. While this may pad the pockets of attorneys charging monthly, many of which have already been disbarred or cited for their behavior, mitigating damages for the borrower and lender alike is the far better alternative.

In my firm, when a client is losing a home to foreclosure, we offer sound, clear and knowledgeable defense in court. But also run the numbers to either advise on a loan modification or a short sale.  Perhaps the borrower can qualify for a loan modification with a reduction of some expenses, or just recently started working and does not have bank statements to prove income.  By counseling them at the time the foreclosure is started, they have time to get their act together, their statements and incomes/expenses in order and then can apply 4 or 5 months afterwards.

At the Law Offices of Jacqueline A. Salcines, PA, our knowledgeable attorney and staff will review your information and enter it into our loss mitigation programs to determine what you qualify for.  We have been defending homeowners in foreclosures for many years and offer sound legal advise and protection. And the best news of all, we DO NOT CHARGE A MONTHLY FEE. But rather a flat fee paid once for the duration of your foreclosure.

Call us today for a free, no obligation consultation.

JACQUELINE A. SALCINES, ESQ.

305  |   669  | 5280

TRUST   |  COMMITMENT  | RESULTS

 

 

 

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WHY TIME IS RUNNING OUT TO SHORT SALE YOUR PROPERTY

Home floating on a life preserver.At the end of last year,  with homeowners on pins and needles, the government extended the Home Affordable Foreclosure Alternatives (“HAFA“) program through December 31, 2013.  This was great news for homeowners that had pending short sales or who were looking to get into a short sale at the beginning of the year. Now, as we approach the middle of 2013, this looming deadline is NOT what is threatening the end of short sales.  It is the rise in property values and the shortage of inventory. 

While many homeowners are still underwater with their mortgages, and owe more than the properties are worth, this is estimated to be less than 50% nowadays.  That means, many homeowners that believe that the home is worth less, are coming to realize once a BPO (appraisal by the short sale lender holding the mortgage) is completed, the value is higher than the homeowner believed, or the price of the contract.  This is fine if there is only one mortgage, but if there are two, now the short sale option is no longer a possibility, because the loan with the first lender is not underwater.

Certainly, costs that the short sale lender pays at closing, such as realtor commissions, documentary stamp taxes and other closings costs come into play and reduce the net the lender is receiving, but the short sale is no longer guaranteed. Second mortgages usually always accept ten percent (10%) of the unpaid principal balance and will agree to erase their loan.  Specially if the property is owner occupied, the majority of the second mortgages will write off their balance and cancel the deficiency, so the homeowner walks away not owing a penny after closing. The borrower must make sure the short sale approval terms are carefully reviewed and negotiated before signing any document that ties them into a bad deal.

It is now common practice for second lenders to file suits coming after the borrowers post closing for deficiency balances that should have been negotiated and cancelled at closing. This is where the services of a savvy  real estate attorney, with significant short sale and negotiation experience comes in.

short_saleWhen values become an issue, the appraisal must be reviewed along with any other mitigating factors such as repairs to the home, insurance issues, permitting, liens, etc. to drive the price down.  Then there is the legally binding short sale approval letter with legal terms and consequences, including IRS tax penalties, which again, makes sense to only have a real estate lawyer review and advise.

We are seeing more and more lenders rapidly approve short sales, but one must make sure that the negotiator doing the leg work knows exactly how to submit the package and negotiate the deal through closing. Another important factor on these short sales, is negotiating the incentives.  Many borrowers are not aware that even if they have not paid their mortgage in years; even if they are delinquent on their loans; even if they have not paid the association, even if it is not their primary residence, they are entitled to numerous Short Sale Incentives in the form of cash from the lender.

Bank of America, for instance, offers between $2,500.00 and $30,000.00 in relocation and moving assistance to eligible short sellers.  They even offer the tenants money to help with relocation when it is not owner occupied.

Chase has offered sellers up to $35,000.00 at closing.  This is available on certain loans not only held and owned by Chase but serviced by them as well.  Sellers with Fannie Mae or Freddie Mac backed loans are not eligible.

Despite all these numerous incentives, many lenders simply do not give them.  It is up to the real estate attorney handling the negotiation on behalf of the seller/borrower to request them and fight for the bank to pay them.

The VA Department of Veterans Affairs also offers a Compromise Sale program that provides up to $1,500.00 in incentives to its veteran borrowers with VA-guaranteed loans. Whether you are a homeowner that is losing your home in foreclosure, or a realtor that has a client that is in the same predicament, we are here to help.

At The Law Offices of Jacqueline A. Salcines, PA, I, Jacqueline A. Salcines, Esq., a real estate attorney and accountant, welcome the opportunity to sit down with you, analyze your situation and provide sound advice. Call us for a free, no obligation consultation.  305  |  669  |  5280

TRUST    |     COMMITMENT    | RESULTS

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HARP 2.0 ALLOWS UNDERWATER HOMEOWNERS TO REFINANCE

Loan Modification Green Road Sign with dramatic clouds and sky. THE EXPANDED HOME AFFORDABLE REFINANCE PROGRAM, NICKNAMED HARP, HAS BEEN USED BY MORE HOMEOWNERS IN THE PAST 6 MONTHS THAN IN ALL OF 2011.

The Obama Administration and the housing regulator, FHFA, revamped HARP to allow homeowners with loans backed by both Fannie Mae and Freddie Mac, and who are current on their mortgages to refinance their properties, no matter how much their home values have dropped, and regardless of what is owed.

A typical refinance requires the following:

  1. Borrower have a good credit score
  2. Borrower have a good credit history with paying mortgages
  3. Home have equity (value of home is higher than the mortgage balance)

In this day and age, when many homeowner/borrowers owe more on their mortgages than the property is worth, a typical refinance is out of the question.  As there is no equity to tap into. Enter the HARP Program.

The program was invented and designed to assist homeowners who have maintained their good credit rating and history but simply can not refinance because the property value is so below the mortgage balance.

On HARP refinances, the principal mortgage balance can be drastically reduced as well as the interest rate, with principal forgiveness so that once the loan balance is forgiven, it never has to be repaid by the borrower.

In order to qualify for HARP, the loan must be as follows:

  1. Must be owned or guaranteed by Fannie Mae or Freddie Mac.  You can call us to see if your loan is.
  2. The mortgage cannot be refinanced under HARP previously
  3. The loan to value ratio must be greater than 80%.
  4. The borrower mortgage must be current.
  5. The borrower must have reasonable ability to pay the new mortgage

These are only a few of the qualifications.

The program expires on December 31, 2013 so don’t wait. Call us today for a free, no obligation consultation.

The Law Offices of Jacqueline A. Salcines, PA, 706 S. Dixie Highway, 2nd Floor, Coral Gables, FL  33146

Telephone:  305 | 669 | 5280  or visit our website at www.salcineslaw.com

TRUST  |   COMMITMENT   | RESULTS

 

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WHY HIRE AN ATTORNEY WHEN SELLING PROPERTY

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Hand with a house key. This is the first of an informational series to provide Seller and Buyers alike with the necessary tools and know-how to make their sale or purchase of real estate a smooth transaction.  I hear it often from clients.  This real estate business is so stressful. Should you sell now with property values rising?  Should the Contract for Sale and Purchase be reviewed by a real estate attorney before or after it is signed?  What if you sign and then something needs to be changed? Are you bound by the terms?  Is there a three day recission period?  All valid questions.

And while we know that selling and buying real estate can be a daunting task, we at The Law Offices of Jacqueline A. Salcines dedicate our practice to REAL ESTATE LAW.  We are here to take the stress out of the transaction for you so that you can rest, relax, close and get on with your life.

Sellers for the most part have it easy.  You name your price.  Sign up with a realtor.  Sign a contract. Wait for closing.  Show up.  Sign. Get paid!.

Well…NOT SO FAST!  Many sellers don’t know that they can obtain the services of their own real estate attorney to represent them in the sale.  Although the buyer usually says Oh… don’t worry. My attorney or my title company will prepare your documents,  SELLER BEWARE!  When the buyers title company represents the buyer, it is doing just that, only guarding the buyers interests.  The buyers title company will prepare and examine title for the buyer and though the seller will be charged regardless for their services, they  DO NOT REPRESENT THE SELLER.  Yes. You heard correctly. You will get charged a fee but the DO NOT REPRESENT YOU.  Their interests and loyalty lies with the buyer.  Therefore, I don’t know about you, but when you are selling what may be the largest investment of your life, this is a big deal, I want someone in my corner looking out for and protecting my interests.

Sellers are not aware that while the title company should order a lien search to see whether there are any open code violations, or liens, if the title company does not order one, or orders one but does not review it properly, the transaction may close but the seller is on the hook… even 10 years later.  If the buyers title company does a shoddy job, then the seller may buy itself a lawsuit.  And good luck finding that title company ten years later.

Secondly, many sellers don’t know that under the contract, there are certain costs that the buyer is required to pick up. Many a time, I have seen HUD-1 Settlement Statements on transactions that have closed wherein the seller was charged with a title search or other costs, that the buyer should have paid.  Remember, the title company is looking out for the buyer. And quite frankly, with nobody in the seller’s corner, how do they know the difference.

Usual seller costs as closing consist of the following:

  • Documentary stamp taxes on the deed (.60 cents for every $100.00 sale price in Dade and .70 cents in Broward)
  • Lien Search/Lien Letters
  • Wire Fee
  • Title Search (a discount is usually provided when the prior policy is provided. Again, something that is not told).
  • Estoppel fees for any Homeowner or Condo Assn.
  • Prorated taxes from January 1st to date of closing
  • Past due HOA or Condo Dues

While many Sellers don’t know how to read a HUD, the title company may overcharge or charge items to the seller that do not pertain to the seller.  Or, they may undercharge for taxes. How do you know if the right number was used for the proration.  Any error may result in less money paid to the Seller at the time of closing.

Sellers are also required to provide a payoff statement of their mortgage.  This is something that again, the title company for the buyer may request but WILL NOT review.  So if your lender is overcharging you or not providing adequate credit for payments made, they will not alert you. You are on your own.

For these reasons, and many more, it makes sense to hire the services of a professional real estate lawyer.

A real estate lawyer will protect your interests, make sure that once you close,  you are really done with the transaction. Not leave anything open that may result in the file being reopened or a lawsuit against you.  And will make sure that the figures on the HUD are correct and you get monies that are rightfully yours.

For a small fee, usually less than the title company is charging you to prepare your seller documents, you can have the expertise and experience of a real estate attorney in your corner.  For what is usually the larges purchase or sale one ever makes in their life, it makes no sense to go it alone.

Trust the Law Offices of Jacqueline A. Salcines, PA to protect you and your largest asset.

Visit us on the web:   WWW.SalcinesLAw.com

Offices in Coral Gables.

706 S. Dixie Highway

Second Floor

Coral Gables, FL  33146

Telephone:  (305) 669.5280

TRUST    |    COMMITMENT    |   RESULTS

 

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PREAPPROVED SHORT SALE PROGRAM FOR FHA

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short_saleIf you are like many out there that are struggling to make your mortgage payments and have an FHA loan, there is good news.  The government has rolled out a new program that Pre-Approves Short Sale prices for homes where the loans are backed by FHA.  In order to qualify, you will first need to make sure that your loan is an FHA loan.  This is easily determined by either looking at your mortgage statement or your closing statement.  If you are charged and pay PMI mortgage insurance, then you have an FHA loan.  Otherwise, you can call your lender or servicer and they will indicate whether it is an FHA loan.

ELIGIBITLY

The difference between this Pre-Approved FHA SHORT SALE  and a traditional short sale, is that the borrower is not required to have a contract  for Sale and Purchase in order for the lender to start working the file. Rather, the borrower can contact us to apply for the short sale, we will request from the borrower and submit financial documents to substantiate the financial hardship. Once the  lender has the borrower’s financial information, they will order an appraisal by and FHA certified appraiser that will determine price.  Once the fair market value is determine and the lender further determines what they need to net from the short sale, an approval letter is sent out to us with the listing price, or minimum they will accept.  ITS THAT EASY!

TIMELINE

From beginning to end, the process is taking between 30 to 40 days and is hassle free.  Moreover, it takes the work away from the realtors of having to play with the numbers and comparables, since the bank will advise what number they  need to net from the short sale closing.

MONEY GIVEN TO BORROWER

And even greater news is that the borrowers usually obtain a $1,000.00 incentive check for their own moving expenses.

There are other qualifications that are required of the borrowers.  We invite you to call our office to discuss your options and allow us to negotiate your short sale for you.

The Law Offices of Jacqueline A. Salcines, PA,

706 South Dixie Highway, Second Floor, Coral Gables, FL 33146

Telephone  305 .  669  .  5280       Email:  J.Salcines@Salcineslaw.com

TRUST    |      COMMITMENT    |    RESULTS

 

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INDEPENDENT FORECLOSURE REVIEW AND FORECLOSURE SETTLEMENT CHECKS OFFER LITTLE RELIEF TO AILING BORROWERS

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Way Signs "Bailout - Collapse"As the third round of foreclosure review checks went out Friday, my office is inundated with calls as to what these checks represent, and more importantly, will depositing them waive the borrowers rights to pursue banking and lending violations by the lender?

As of April 25, 2013, 1,150,328 recipients have cashed or deposited $1.1 billion in checks from the settlement reached in January between 13 servicers and federal regulators.  The servicers include Aurora Bank, Bank of America, Citibank, Goldman Sachs, HSBC, JPMorgan Chase, MetLife Bank, Morgan Stanley, PNC, Sovereign, SunTrust, U.S. Bank and Wells Fargo.

This new agreement, which  replaces the poorly structured and obsolete “Independent Foreclosure Review process”, which required consent by the borrower, automatically calculates the amount of funds owed the borrower based on the amount of the loan, and arbitrarily remits checks by mail to the borrower.  Unlike the Independent Foreclosure Review, the new settlement is based on the “unpaid balance of the loan” and not the amount of assistance provided to the borrower.    This shifts the focus to assist higher priced homes with larger unpaid balances.  About 2.3 million borrowers will receive $300.00.

The payments will range between $300.00 and $125,000.00, depending on how much harm a borrower potentially suffered as a result of actions by the mortgage servicer.  The vast majority of the recipients of the $300.00 check, include borrowers who had a loan modification request approved but still ended up in foreclosure.  They also include more than 800,000 borrowers whose servicers did not participate in the loan modification or failed to offer any help, when their loan clearly merited it.

It is estimated that up to 1082 borrowers who lost homes in foreclosure even though they were protected by the military services may get up to $125,000.00 as well as those who lost homes in foreclosure and were not even in default. As crazy as that sounds, it has occurred.

Borrowers who were in an active bankruptcy  and the foreclosure sale went through anyhow, may be eligible to receive between $62,500.00 and $31,250.00 .

Overall, borrowers will only get a fraction of the amount they are truly entitled to based on bad banking practice and violation of law.

The banks that did not join the settlement include OneWest, EverBank and GMAC Mortgage.

The new agreement also does not require banks to fix a borrowers credit, specially if it was reported erroneously.  The borrowers would need to go after the bank independently to get any erroneous information removed or corrected.

The settlement will do little to repair the long standing effects of wrongly filed foreclosures, or sales of properties in foreclosure that should have never been sold. However, it is a start.

The final million dollar question remains …” will depositing the check result in a waiver and release of claims by the borrower against the servicer”.  As with all legal settlements, you are urged to consult with an attorney to review the specific terms of your particular settlement in advance of depositing any check, to see what, if any rights, are being waived.

Call us for a free consultation regarding your eligibility.

Law Offices of Jacqueline A. Salcines, PA

706 S. Dixie Highway

Second Floor

Coral Gables, FL 33146

305  |   669  |   5280

 

 

 

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STATUTE OF LIMITATIONS FOR PROMISSORY NOTES AND DEFICIENCY BALANCES

BankruptcyFrequently in my practice I am asked by borrowers seeking foreclosure defense and mortgage modifications, what the Statute of Limitations is with regard to mortgages and notes entered into by borrowers who have now stopped making mortgage payments.  The new word on the street that is quickly penetrating neighborhoods and water coolers alike is Statute of Limitations, and those that have had the good fortune of being advised by their attorney that their lender or note holder has not sued within the period of time required by law and they  may now own the house free and clear, are spreading the news like wildfire.

If a lender fails to bring suit within the prescribed “statute of limitations,  the borrower may technically keep the house free and clear of any mortgage encumbrance.  Perhaps a word seldom used by many in this community except lawyers or those in banking and business sectors, now the word Statute of Limitations has become  a household word that everyone is curious about.

The Statute of Limitations in Florida, which means the time the bank has to take you to court after nonpayment of your mortgage note, is FIVE YEARS (5) from the time you stopped making mortgage payments and went into default.  For further clarification, if you made your last mortgage payment on January 1, 2008… if the lender has not filed suit against you by January 1, 2013, then the lender may be forever barred from pursuing that debt against you.  This is where the skill and expertise of a knowledgeable real estate attorney is absolutely crucial to analyze every detail of the loan and payments and make sure that the bank is forever barred from pursuing that mortgage debit against you.

Deficiency balances are a separate matter.  A deficiency balance is the amount of mortgage left over (unsatisfied) or unpaid AFTER the property is either sold at the foreclosure auction or in a short sale and property closing.  If a property sells at auction for $150,000.00 but the bank had obtained a judgment against you, the borrower, for $200,000.00, the a $50,000.00 “deficiency balance” remains unsatisfied and collectible.

If your property has been foreclosed, then the Statute of Limitations starts the date of the foreclosure sale.

if your property was sold in short sale or other closing, the Statute of Limitations begins to toll as soon as the lender obtains their money from the proceeds of the sale.

If the property was returned to the lender through a deed in lieu of foreclosure, the Statute of Limitations will start from the date the Quit Claim Deed is recorded.

As with all matters dealing with Florida Statutes and governing law, homeowners are encouraged to seek the advice of a qualified real estate attorney to analyze your mortgage documents and provide the best possible advise for your situation.

Contact the Law Offices of Jacqueline A. Salcines, PA for a thorough review of your mortgage, note and closing documents to see what  you may be eligible for.

                                                              TRUST    |   COMMITMENT    |   RESULTS

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