Florida Mortgage Modification Lawyer Blog

Foreclosure filings remain steady in Southwest Florida. Many foreclosure defendants who try to fight these foreclosure actions are no doubt becoming frustrated with the process – and who can blame them?

Nobody wants to be dragged into a lawsuit, especially when one’s home is on the line. But aside from the stakes, what makes recent mortgage foreclosure lawsuits particularly daunting is the fact that almost every mortgage currently being foreclosed on has been transferred so many times that it becomes difficult – if not downright impossible – to figure out who owns the mortgage!

Continue reading "Discovery In Foreclosure Cases: Is The Bank Hiding The Ball? Part I" »

I keep a very close eye on the Southwest Florida Real Estate Market. Why?, because my clients have roots here, and they plan on staying here in Southwest Florida. Many people want to purchase real estate, but I have been hesitant to recommend that they get back into the real estate market right away.

I recently read a story on Bloomberg about the nationwide real estate market, and things are looking bleak. I'm sorry, I never want to be a downer, but, this is actually good news for buyers.

Continue reading "No Light At The End Of The Southwest Florida Housing Market" »

In Gennifer Gee v. U.S. Bank National Association, 36 Fla. L. Weekly D 2159 (Fla. 5th DCA 2011), a recent case decided by the Fifth District Court of Appeals, the Court reiterates the standard and burdens the Bank must meet when it argues a Motion for Summary Judgment. In an excerpt from the decision, the Court states:

A motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matter of law to be argued….”Fla. R. Civ. P. 1.510(c). The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966): Bloch v. Berkshire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the non moving party to be prepared for the issues that will be argued at the summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). “It is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093 (Fla. 4th DCA 2006).

Continue reading "The Constraints on Bank at a Motion for Summary Judgment" »

As the number of foreclosure filings in the first half of 2011 dropped by twenty-nine percent from the same period last year, several problems still loom for those caught up in the foreclosure crisis. An unknowing person would think this reduction in filings means a better economy and more stability. But we know that’s not true. Unfortunately, the lower number of filings is likely the result of investigations into bank procedures during the foreclosure process. The unemployment rate is still high, and many people have nowhere to go. Once the “document review” is completed, the number of default notices being sent out is going to increase at a rapid speed.

Continue reading "Foreclosures – More than Just a Problem for Homeowners " »

There may be some help out there for homeowners who were financially harmed during the foreclosure process in recent years. The Board of Governors of the Federal Reserve System and the Office of the Comptroller of the Currency, the federal bank regulators, announced that independent foreclosure reviews will take place for certain borrowers whose primary residence was part of the foreclosure process between January 1, 2009 and December 31, 2010.

Continue reading "Help for Homeowners: Independent Foreclosure Review" »

The White House announced a modification to the HARP program today that may help home owners. The new program will eliminate the Loan to Value cap of 125% and allow servicers to refinance loans regardless of the “underwater” status of the loan. This new program will also encourage the elimination of fees and other costs typically associated with refinancing. Additionally this new program will allow mortgage holders to take advantage of lower interest rates. HARP has now been extended until 2013. Sounds like a great program and a great idea to help homeowners, right?

Continue reading "HAMP PROGRAM GETTING A REVAMP, ONCE AGAIN TOO LITTLE TOO LATE?" »

Anyone who has been suffering through these dismal economic times may have been anxiously waiting for something, anything, to happen with their home. Most people involved in the foreclosure mess that is Southwest Florida have been waiting for the banks to pick up where they left off. For a few months, it seemed as if we had a reprieve from default notices being sent and foreclosures being filed. Each month, for the past eight months, the total number of homes in foreclosure decreased rather dramatically. Unfortunately, that trend is over.

Continue reading "Florida Foreclosures Back On The Rise" »

In a decision that has most of the Southwest Florida foreclosure world buzzing, the Fourth District Court of Appeals reversed the entry of summary judgment in part in Glarum v. LaSalle Bank National Association. What was the basis for the reversal? The Court correctly applied the requirements of Florida Statute 90.803(6)(a), which generally allows otherwise inadmissible evidence to be admitted under a business record exception to the hearsay rule.

In order to be admitted into evidence as business records, the party trying to introduce the evidence under Florida Statute 90.803(6)(a) must show, through a record’s custodian, that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. If the witness, i.e., the record’s custodian, cannot demonstrate that he or she has knowledge of these items, the documents would be inadmissible hearsay evidence and would not be admitted into the record.

Continue reading "Courts Are Supposed To Apply The Business Records Exception To The Hearsay Rule In Foreclosure Cases" »

As the number of foreclosure filings in the first half of 2011 dropped by twenty-nine percent from the same period last year, several problems still loom for those caught up in the foreclosure crisis. An unknowing person would think this reduction in filings means a better economy and more stability. But we know that’s not true. Unfortunately, the lower number of filings is likely the result of investigations into bank procedures during the foreclosure process. The unemployment rate is still high, and many people have nowhere to go. Once the “document review” is completed, the number of default notices being sent out is going to increase at a rapid speed.

Continue reading "Foreclosures- More Than Just A Problem For Homeowners" »

We have received many questions in regards to Short Sales at The Dellutri Law Group this past week. To clarify the answers to some of these questions please view this video. This video explains the length of time it takes to complete a successful Short Sale. It could take as little as 10 weeks to over a year to complete.

Continue reading "The Short Sale Process" »

My short answer is: Absolutely Not. There is an endless list of factors and circumstances which have caused homeowners to no longer be able to afford their homes. When people find themselves in this situation, they expect and fear foreclosure. They feel helpless and uneasy when they realize they can no longer meet their financial obligations. However, some don’t accept foreclosure as inevitable and begin searching for assistance and other options. The alternatives to foreclosure are the following loss mitigation options: Loan Modification, Short Sale, Deed-In-Lieu of Foreclosure and Foreclosure Settlement.

Continue reading "Is A Short Sale A Bad Idea?" »

If you are a homeowner who has been trying to modify your home mortgage, you know that the only way to get a modification is to stop making your payments. After making your trial period payments, you will be sent modification papers for your permanent modification, then that final paperwork never comes or has different terms than were set forth on the phone.

"We didn’t receive your paperwork in time to finish the paperwork" or "parts of the paperwork were missing so we can no longer consider you for modification." These statements or statements with only slight variations are all too familiar to the thousands of Southwest Floridians currently experiencing the frustration of dealing with their lender or servicing company while trying to obtain a loan modification.

Continue reading "Are Banks And Servicing Companies Trying To Insulate Themselves Again For More Problems?" »

What is the “Best Result” of a Short Sale?

Mitigating the Borrower(s)’ damages is the ultimate objective of a Short Sale.

Each individual that signed the Promissory Note is responsible for the entire financial obligation. Actively pursuing and successfully closing a Short Sale does not mean the financial obligation has been canceled or the Borrower(s) is released from the obligation. An improperly facilitated Short Sale has the potential to create additional and continuing financial obligations for the Borrower(s) which is contrary to the intentions of participating and pursuing the loss mitigation option.

Continue reading "What Should Happen During My Short Sale? Part I " »

Attorneys Annette Haber and Carmen Dellutri discuss the Deed In Lieu process.

Continue reading "What Is A Deed In Lieu Of Foreclosure In Florida?" »

Attorneys Annette Giardina Haber and Carmen Dellutri of The Dellutri Law Group, P.A. discuss the pros and cons of the Deed In Lieu of Foreclosure process and whether your mortgage company will accept the Deed.

Continue reading "Should I Do A Deed In Lieu Of Foreclosure With My Mortgage Company?" »

You’ve heard the term “Short Sale”, have read the previous blogs which explain what a Short Sale is and whether it is better to pursue a Short Sale or let the property go through foreclosure. Now you may be wondering how to get started and if there are certain individuals who may be able to assist with the process; or whether having their involvement in the short sale process might be beneficial.

It is important to understand there are three different licensed professionals who should be enlisted to assist with the Short Sale process: Real Estate Agent, Real Estate Attorney, and Tax Professional.

Continue reading "What Professionals Should Assist In The Short Sale Process? Part I" »

It appears courts are getting tougher on foreclosure mills in Sarasota and Manatee County, Florida. Recently, according to the Miami Herald, a Manatee County Circuit Court Judge sanctioned the law firm of Smith Hiatt & Diaz $49,000 for “deliberate, willful, and flagrant” contempt for setting, then missing two foreclosure hearings. Apparently this was not a one-time event but similar incidents of not showing or cancelling hearings at the last minute had occurred in the past.

Continue reading "Courts In Sarasota and Manatee County Are Getting Tougher On Foreclosure Mills" »

To counteract the sloppy and at times false allegations plead in foreclosure complaints across the state, on February 11, 2010, the Supreme Court of Florida amended rule 1.030(b) of Florida’s rules of civil procedure to state:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

Continue reading "Issues Arising From the Verification of Foreclosure Complaints" »

For all intents and purposes, MERS is Dead. Recently, I heard that MERS was making changes to its business model. To that statement, I must respond: "What business model?" The only thing that MERS did in my opinion is put the screws to the entire mortgage industry. In six months to a year, MERS will be gone, and then we will begin to see the bigger picture. The questions that we will be asking are: Do I really have to pay my mortgage? Who do I owe the money to? How many credit reports need to be cleaned up because they are wrong? It's going to get ugly.

In a year, I will look back on past blogs to see if my predictions were right or wrong. This story is going to get interesting.

Continue reading "The Death Of MERS " »

The King of Foreclosures, that is. Since you all probably read my last blog about the trouble in Southwest Florida foreclosure courts caused by the demise of David Stern’s office, it won’t surprise you to hear that the craziness may have only just begun.

After removing Stern’s office from thousands of cases, mortgage giant Fannie Mae (another interesting topic to be discussed soon) had to retain other Florida law firms. It seems several of these firms may be keeping the Florida Attorney General’s office busy.

Continue reading "Is The King Alive In Southwest Florida ?" »

How many have seen the recent articles about David Stern? The rise and fall of a foreclosure king, they say. For those of you not familiar with Mr. Stern and his status as the king of the foreclosure mills, his empire included giant clients like Bank of America, Goldman Sachs, GMAC, Citibank and Wells Fargo. During the housing crash of 2008, Stern’s foreclosure caseload grew to over 70,000 in 2009.

Continue reading "The King’s Effect on Lee County Foreclosure Trials: Return of the Rocket Docket" »

While foreclosure cases continue to flood the court dockets, the courts are not alone in being stretched to their limits. The banks and mortgage companies have also struggled to keep pace.

The rush to keep up is particularly evident in the shoddy paperwork the bank's often present to the court. Whether it is outright fraud or simply sloppy documentation, documents that post-date the lawsuit, or show that another entity owns the note will often lead to the court dismissing the complaint.

Continue reading "Foreclosure Cases Dismissed Because Of Bad Paperwork" »

The answer to the Question: Have Foreclosures Stopped in Florida? is No, they have not. But, it is easy to see why people are thinking that foreclosures have stopped. While reading the newspaper last week, I came across an interesting article addressing a topic that has, over the last few weeks, caused a bit of confusion amongst the residents of Southwest Florida I meet with on a daily basis.

The article was titled “BofA Restarts 16,000 Foreclosures.” I say that it has caused confusion because, while there have been numerous articles speaking to the banks’ claims that they have “stopped” foreclosures due to improper document filing, “robosigners,” and other potential improprieties during the court foreclosure process, foreclosures have been continuing and the process has not halted.

Continue reading "Have Foreclosures Stopped In Florida?" »

This is Part II of this Article. Click here to read Part I.

While the clearance rate of foreclosure cases improved from 40% to 78% in 2009 based on the policies implemented in Lee County, at what expense were these cases resolved? With so many lenders coming out admitting their wrongdoing in foreclosure filings, I’m curious to know how many people wrongfully lost their homes in the blink of an eye. How many of these homeowners, who may have suffered temporary financial setbacks, could have been able to work something out with the banks if they were just given a little more time? I think we would all be surprised at the number.

Continue reading "The Foreclosure Case Is Set For Trial ? Part II" »

We all know about the thousands of foreclosure cases that are being pushed through the courts at record speed these days in Southwest Florida.

But what is actually happening to all of these homes? What we would like to think is that the homes are being sold either at the foreclosure sales or very shortly thereafter, to deserving homeowners who need an affordable place to live in this down economy. We’d like to think that this whole process, although tough on those that are losing their homes, is still in the overall best interests of our community’s economy in general. It is getting people back on their feet, improving the economy, and ultimately creating more jobs so that our beautiful slice of paradise can recover, right? I’m not so sure about that.

Continue reading "What Are Banks Thinking About Foreclosures?" »

In part one of this blog I discussed why a short sale is better than a foreclosure. What can one do to try to avoid having to experience this nightmare? Short Sale the property! A successful Short Sale can result in a win-win scenario for all parties involved. A Short Sale is an opportunity for the Mortgagor to try to prevent any version of the foreclosure nightmare while trying to actively mitigate the losses for all involved. A successful Short Sale handled by a Real Estate Attorney may result in the Bank or Lender releasing the lien of the Mortgage and also canceling (forgiving or writing off) the Promissory Note and providing a full release of their deficiency judgment rights. The best outcome of a Short Sale is the issuance of a 1099C which will be discussed in future blogs.

Continue reading "Is A Short Sale Better Than A Foreclosure Part II?" »

Southwest Florida Courts are cramming more time into the day in order to speed cases along the rocket docket. A quick look at the schedule for just one judge on February 3, 2010 reveals that it will be the longest day of the year, never mind the summer solstice. Currently there are 100 non-jury trials set for 15 minute hearings starting at 8:30 am. Additionally starting at 1:00pm there are an additional 99 non-jury trials set for 15 minute hearings.

Continue reading "Lee County Florida Judge Crams Fifty Hours Of Non-Jury Trials Into One Day" »

A recent prediction is that mortgage foreclosures will continue to rise in 2011. It is estimated that 1.2 million homes will be foreclosed upon. That is quite a few homes after several years of outrageous numbers of homes in foreclosure already. It makes you wonder:

Why hasn't Congress done anything to Stop Foreclosures?
Why haven't the States done anything to protect it's citizens?
Why haven't more homeowners fought to save their homes in foreclosure?

The biggest concern for me is: The whole mortgage modification disaster could be solved very simply by allowing homeowners to cram down their first mortgages on their homesteads.

Yes, more people would have to file for bankruptcy, but so what, we would be saving homes, clearing up debt problems and putting everyone, including this Country back onto the road to recovery.

There are some things in life that I will never understand.

Continue reading "Foreclosures Are Expected To Rise in 2011" »

The question: Is a Short Sale better than a Foreclosure? has been getting quite a bit of attention lately. I continue to be amazed at the number of potential clients, with whom I have the privilege of meeting, who tell me their accountant advised them to just let the house go. Others tell me they know somebody, have a good friend, or a coworker who has provided their opinion (gained through naive experience I guess) on this topic.

The consistent theme of the opinions are “just leave the house; walk away from it; why would you want to stay in the home when you owe almost twice as much as it is worth and you may die before you’ll ever make a profit on what you thought was a smart way to spend/invest your money”.

Continue reading "Is A Short Sale Better Than A Foreclosure Part 1?" »

On a beautiful sunny morning in Southwest Florida, one particular courtroom in the Lee County Justice Center was buzzing with the chatter from attorneys preparing for the 74 non-jury foreclosure trials set for that morning. Each trial was set for 15 minutes.

Have you ever met an attorney who could say anything in 15 minutes? How about 148 attorneys talking for about 7 ½ minutes each? That is what our judicial system has allotted for the plaintiff to attempt to prove their case and the defense to put on their case, should they decide to do so. As an attorney that likes to try cases, the thought of 74 trials is quite stimulating! However, I also know it takes a little bit longer than 15 minutes to present a case to a judge. So, what is getting done in these 15 minutes? And why the rush? What else can happen to your foreclosure case?

Continue reading "The Foreclosure Case Is Set For Trial ? Part I" »

Foreclosure trials are becoming a more common phenomenon in Lee County. A Bench Trial (before a Judge - Not a Jury) are the direct by-product of Lee County’s docket soundings system. In order to move foreclosure cases through the courts at a swifter pace, Lee County implemented a system using docket soundings, whereby any property in foreclosure is placed in the system and a docket sounding is held about every two months.

Continue reading "Foreclosure Case Set For Trial?" »

Attorney Annette Giardina Haber joined The Dellutri Law Group, P.A. as a Real Estate Attorney several months ago. She will be preparing a series of Blogs dealing with the following topics:

1. Is a Short Sale better than a Foreclosure and why?
2. What professionals should help through the Short Sale Process?
3. What is the best result of a Short Sale?
4. Is a Short Sale a bad thing?
5. Are there any Banks or Lenders that are worse, better, easier or more difficult than others?
6. What are the statistics on Short Sales?
7. Why should a Short Sale be pursued?
8. Is a Real Estate Agent necessary in a Short Sale?
9. Four categories of Loss Mitigation Options.
10. How long does the Short Sale Process take?
11. DO NOT just “hand over the keys” to the Bank!
12. Where else can literature or authority on Short Sales be found?
13. I have a great plan, I am going to walk away from my house and move to another state! NOT!
14. Do I need to call a Real Estate Agent or can I consult with a Real Estate Attorney first?
15. Why should I use a Real Estate Attorney in my Short Sale?
16. What happens if the Bank or Lender starts the foreclosure process while proceeding through the Short Sale process?
17. There are so many advertisements about loss mitigation options, why should I consider the Dellutri Law Group?

If you have any questions that you would like to see addressed, please feel free to contact me at 239-549-0900 or via email: aghaber@dellutrilawgroup.com

This Blog was written by Annette Giardina Haber, Esquire, of the Dellutri Law Group, P.A. Ms. Haber runs the Firm’s Real Estate Department and concentrates her practice as a real estate transaction attorney. She represents clients through loss mitigation options, drafts contracts, issues title insurance and handles residential and commercial closings.

Have you tried to modify your mortgage? Are you tired and frustrated of the process? For those of you wondering why your lender/servicer is not working with on your mortgage, don’t worry, it’s not you, it’s them. The sad fact of the matter is lender/servicers are not doing much for anyone. Nothing proved this point to me more until I read an article about a foreclosure in Ohio by JPMorgan Chase Bank against a Cuyahoga County court judge.

Continue reading "Mortgage Modifications – Helpful Hints To Help You Succeed" »

The term Short Sale has become increasingly too familiar in today’s modern vocabulary due to the down turn in the real estate market. You most likely will not find a definition of Short Sale as it is used today in the latest printed editions of the Merriam-Webster, Oxford English, American Heritage or Webster Dictionaries. The reading of the online Webster Dictionary definition, origin 1865 - 1870: “sale of securities or commodity futures not owned by the seller (who hopes to buy them back at a lower price) provides insight as to the traditional meaning of the term. Dictionary.com defines Short Sale as a noun: “an act or instance of selling short”. Although Banks and Lenders understood and rarely utilized the concept, this definition is more in line with the term’s relevance in society today as it relates to real estate.

Continue reading "What Is A Short Sale? How Do Short Sales Work?" »

The generosity of Fannie Mae, Freddie Mac, and Bank of America is astounding as they announce they will not seek foreclosure evictions or sales during the holiday season, from December 20th to January 3rd. [Sense the sarcasm?] Unfortunately, Citimortgage has not been so kind, as it apparently has befriended Mr. Scrooge during the holiday season. Citimortgage announced that although it stopped foreclosure notifications last year during the holidays, it will not do that in 2010.

Please be aware that Fannie Mae made it clear that the halt will not include court proceedings involving foreclosures; they just won’t evict families from their homes during the holiday season and cold, winter months. But rest assured, banks will be back at it come January 3rd, processing those foreclosure actions at record numbers.

Continue reading "Christmas Cheer in Foreclosure Land ?" »

With the 2010 elections upon us, some federal lawmakers headed by House Speaker Nancy Pelosi are calling for a federal investigation into how banks are handling foreclosures stemming from reports of “robo-signatures” and other practices. The call for the probe also considers a statement by the U.S. Attorney General saying banks “have repeatedly misled and obstructed homeowners from receiving help Congress and the administration have sought to provide.”

Continue reading "Federal Investigation Into Mortgage Foreclosures?" »

State Court Judges are tired of big foreclosure dockets, and they are tired of foreclosure law firms who fail to appear for hearings. It appears the courts are getting tougher on foreclosure mills in Sarasota and Manatee County, Florida.

Recently, according to the Miami Herald, a Manatee County Circuit Court Judge sanctioned the law firm of Smith Hiatt & Diaz $49,000 for “deliberate, willful, and flagrant” contempt for setting, then missing two foreclosure hearings. Apparently this was not a one-time event but similar incidents of not showing or cancelling hearings at the last minute had occurred in the past.

Continue reading "Judges In Sarasota And Manatee County Are Getting Tougher On Foreclosure Law Firms" »

Recently, the Florida Attorney General began investigating several law firms handling large numbers foreclosure cases which have been described as “foreclosure mills” for filing fraudulent documents with the court.

Unfortunately, investigation hit a bit of a snag on October 4, 2010; hopefully it will just be temporary. In a hearing on a motion to quash a subpoena against one of the firms, the Judge ruled the Florida Attorney General’s subpoena was overbroad and unduly burdensome. Normally, that issue can be resolved by fine-tuning the subpoena more narrowly and then building upon what you discover later. However, the Judge went further and called into question the Florida Attorney General’s constitutional authority to even investigate law firms as they are regulated by the Florida Supreme Court and the Florida Bar.

Continue reading "Florida Attorney General's Investigation Hits A Snag" »

Recently, we wrote about the GMAC foreclosure mess. Then came the JP Morgan and Bank of America disasters, and we are not done yet. The recent actions taken by some of the largest lenders of home loans in suspending foreclosures threatens to further hamper an already fragile housing market. As many people search for relief in a housing market that has left many homeowners underwater or not being able to meet their mortgage payments, the actions of these lenders in failing to properly document and/or in falsifying foreclosure documents, is placing another hurdle on the road to recovery. With distressed sales account for almost a third of all sales, the potential consequences are alarming.

Continue reading "Can I Get Title Insurance On A Foreclosed Home?" »

Amidst investigations by state attorney generals into several law firms over alleged falsified foreclosure documents, GMAC is the first but may not be the only lender/servicer to take steps to look deeper into issues concerning illegal foreclosures. The Associated Press has reported that GMAC is going to cease foreclosures and evictions in numerous states amongst allegations and investigations into falsified documents in the foreclosure. Researching further into GMAC decision, it appears GMAC has decided to cease actions in 23 states, including Florida. In addition to ceasing foreclosures and evictions, GMAC is freezing closings on all REO closings.

Continue reading "GMAC Stops Foreclosures In Florida" »

Yesterday, the Florida Attorney General's Office announced that it is going to begin looking into allegations of foreclosure law firm's use of fraudulent or fake documents. If you recall, I wrote about this very topic in previous blog in April of 2010. I don't know if any of this is true or if it is just a political stunt, so, everything written here is purely my opinion.

Here is the gist of the investigation. Sometimes it appears that law firm's are using very creative means to pursue a foreclosure. After the loan closes and the homeowner moves in, many loans were transferred on the open market. Of course, the homeowner knows nothing of this unless and until they receive a letter directing them to send their mortgage payments to a different company and address.

Continue reading "Florida Attorney General Finally Looking Into Fraudulent Documents" »

Are you a homeowner in Fort Myers who has lost a job or lost some of your household income? Have you been unable to make your mortgage payment this month? If so, you may be facing the very difficult decision that so many homeowners in Florida are facing: should I keep this home? At Dellutri Law Group, we are seeing homeowners coming in the doors daily agonizing over this decision.

Trying to decide whether to try to keep a home through modification when you owe 2-3 times its value is a very personal one; and in order to make the best decision for yourself and your family, it’s important to consider many different factors:

- Recent studies are showing that foreclosures are on the rise again, and a report on Dow Jones newswire shows analysts predicting that home prices will continue to decline again this year. “Home prices are expected to decline again with risk of another 50% down to get house prices back to levels of 1999 / 2000”, says Richard Henry Suttmeier on Forbes.com. This is a very startling and scary prediction, but if it comes true, this could very well mean additional declines in home prices in Lee County in the near future.

Continue reading "Should I Keep My Home Or Surrender It?" »

Well, I knew it would get bad, but not this bad. It is predicted that 1 million homeowners in the United States will lose their homes to foreclosure this year. Are you kidding me, that is just insanity. And nothing is being done to stop the insanity. Next, the Federal Government is going to go back to these people whose homes were lost and say to them, well we know you lost your home, but, now we have to raise your taxes because of x, y or z. This is mind-boggling. In my opinion, many of these loses could have been prevented had our elected officials in Washington done the right thing, rather than the popular thing.

I cannot justify under any circumstances the wasteful spending of money. Our Federal Government has wasted and continues to waste taxpayer dollars with no accountability. Our American Dream has been leveraged, and we cannot afford to pay the bill. It makes me sick thinking that I am going to educate my children and they will be working their entire lives to pay for the hypocrites that we elected into office. I will stop the rant before I go off the deep end.

Continue reading "One Million Americans May Lose Their Homes to Foreclosure in 2010" »

A Florida homeowner can walk away from a home, but will face foreclosure. This decision should be considered very carefully. Why?

Florida Foreclosures are starting to take a turn for the worst. In Florida, once a home is sold on the Courthouse steps, the lender must apply the monies received from the purchase to the balance of the loan. When I first started practicing law, deficiencies were unheard of, as home prices consistently went up; however, as we all know, those days are memories.

Now, it seems that all the homes being sold on the Courthouse steps are for less than the outstanding balance. Once the lender applies the proceeds of the sale to the outstanding balance, the borrower could be responsible for the remaining deficiency.

In the last two weeks, I've seen several lenders, mortgage companies and banks starting to pursue deficiencies against the former homeowners.

More on this later.....

Continue reading "Florida Foreclosure - Can I Walk Away From My Home?" »

Recently, the Honorable Anthony Rondolino, a Circuit Court Judge in Pinellas County, Florida stated at a hearing in a mortgage foreclosure case:

"I don't have any confidence that any of the documents the Court's receiving on these mass foreclosures are valid."

Judge Rondolino's comments were made while considering whether to reverse his prior decision on granting a summary judgment on behalf of the mortgage company and against the homeowner.

This comment and the recent case law coming out of the Florida's Second District Court of Appeal makes this writer extremely happy.

At the end of last year, the Florida Supreme Court entered an Administrative Order on Mediation in an attempt to help homeowners save their homes.

Judge Rondolino also commented:

"You know what I'd really like to see? I'd like to see in one of these cases where a defense lawyer cross-examines, take a deposition of these people, and we can see whether they ought to be charged with perjury for all of these affidavits. I would just love to see that, ..."

What the Judge was getting at was the mass production of affidavits not based on personal knowledge and submitted to the Court by the lenders in support of the foreclosure.

We recently had a similar case where GMAC Mortgage pursued a foreclosure case only to find out later that they never owned or held the note. Shocking!

There will be more to come on this as the Court System is Fed Up with Fraudulent Documents. Hopefully, the next time I will write with a case about Sanctions against a lender for producing fraudulent documents.

Continue reading "The Judges Are Getting Ticked Off At Fraudulent Documents" »

Once again the Government fumbles the ball when it comes to Southwest Florida Homeowners.

It started with trying to keep people in their homes with HAMP and HARP. Now, after realizing how poorly planned and executed the programs are, the government is no longer trying to help homeowners stay in their homes. Now, the government is trying to force homeowners out, but not without letting the Banks get their pound of flesh.

Under a government plan announced in November, 2009, but not set to go into effect until April, 2010, homeowners who are able to short sale their house will receive $1500.00, banks and servicers on the other hand will receive at least $2000.00.

It doesn’t seem that the banks are willing to let you have the government’s money in the same easy way that they received it. As reported in the New York Post, Wells Fargo vice president had the following quote, “If someone doesn’t come to us saying, ‘I’ve done everything I can, I used all my savings, I borrowed money and, by the way losing my job and moving to another city, and have all the documentation,’ then we’re not going to do a short sale.”

Once again the fix to the housing crisis amounts to little more than a Public Relations attempt to make it look like help is coming for Main Street while Wall Street continues to make big profits.

I will remember that when I vote.

Continue reading "Mortgage Modification in Lee County, Florida " »

Recently, a new bill has been introduced in Florida. The Bill is called: Florida Consumer Protection and Homeowner Credit Rehabilitation Act. This is one of the most Anti Consumer Bills that I can recall.

The Florida Bankers Association presented this bill to Florida legislators. This bill is designed to kill the due process rights of Florida homeowners by changing us from a judicial foreclosure state to a non-judicial foreclosure state.

The act, titled The Florida Consumer Protection and Homeowner Credit Rehabilitation Act, really needs to be read by all 18 million Florida residents. If passed into law, foreclosure lawsuits would be a thing of the past.

Continue reading "Florida Consumer Protection and Homeowner Credit Rehabilitation Act" »

Non-judicial foreclosure is not the answer to the Florida foreclosure problem. The answer to the foreclosure problem is open communication between a lender and a homeowner. The Florida Supreme Court recently addressed a problem that the Florida Governor and the Florida Legislature have been ignoring for several years.

The Florida Supreme Court established a task force to study the foreclosure problem, and the number one problem the task force found was a communication problem. It seems that the foreclosure task force ignored the people dealing with those lenders associated with the Florida Bankers Association. Lenders with the Florida Bankers Association work for months and months with its borrowers.

Continue reading "Non-Judicial Foreclosure Is Ridiculous Part II" »

Thirdly, Mr. Sanchez states that the current judicial process in Florida takes one to two years. Where is the factual basis for this statement? Sure, some foreclosures last a year or two but that is not the result of the homeowner. Usually, it is because the lender cannot prove its case to the Judge. Yes, there are unopposed cases where the lender cannot prove its own case, and the case has to be delayed. How pitiful is that? A lender files a foreclosure action to take someone’s home away, is unopposed in Court, and still cannot prove its case.

Another problem in the Florida Court’s right now is lenders that are cancelling the foreclosure sale because they do not want the property back in their name. So, rather than conduct the foreclosure sale, the attorneys for the lender are instructed to cancel the foreclosure sale, thereby leaving the homeowner as owner of record, and therefore, liable for the taxes and maintenance of the property.

Continue reading "Non-Judicial Foreclosure Is Ridiculous Part III" »

It is ultimately the lenders decision whether to deny a modification. It is the lenders who decide not to allow a principal reduction. It is the lender who decides not to lower the interest rate. It is the lender who shuts off communication with the homeowner. It is the lender who decides at what price a short sale will be allowed.

Mr. Sanchez then switches his argument to investors and flippers, and his argument is vague and ends with a flippant comment. He attempts to bolster his argument by alluding to the amount of homes in foreclosure that were purchased by speculators. Yet his argument fails to gain strength, and in fact becomes fractured.

If his argument is that speculators are not entitled to their day in Court, then, wouldn’t the same hold true for other types of cases. Maybe there are too many small claims cases, in his opinion, or maybe he feels there are too many criminal cases in the Court system. Why do they have to be in Court? My only comment to Mr. Sanchez on this point is that I think investors and flippers are still entitled to their day in Court, and the law in the State of Florida guarantees this proposition.

Continue reading "Non-Judicial Foreclosure Is Ridiculous Part IV" »

Ladies and Gentlemen:

A bill was introduced by Florida Senator, Dave Aronberg, which would make mediation an option in mortgage foreclosure cases where the foreclosure is against a homestead.

Here is the story:

Continue reading "Mediation of Foreclosures One Step Closer" »

Well it's 2010, and I am wondering what the Federal Government is going to do about the failing Home Affordable Modification Program. (HAMP). When the President ran for office, one of his rallying cries was that he was going to help homeowners stay in their homes by modifying mortgages. The Making Homes Affordable Program was supposed to help 7 - 9 million families avoid foreclosure.

Well if you have ever read anything that I have written, you will know that I am deeply disappointed in the results with the President's Making Homes Affordable Program. On the surface, it seemed too good to be true, and you know what they say about things too good to be true: It usually is too good to be true. Kinda like that mortgage we were promised in 2005 and 2006, that we could easily refinance in two years when the property was worth twice what we paid for it. Hmmm, yea that was too good to be true as well.

Continue reading "Home Affordable Modification Program - A Waste Of Time " »

Government officials are telling us that the recession is over, but the foreclosure crisis is still increasing in Florida and nationwide. Realty Trac released its US Foreclosure Market Report for the third quarter of 2009, which shows that foreclosure filings [including auction sales, default notices and bank repossessions] were reported on 937,840 properties in the third quarter - a 5% increase from from the second quarter of 2009. Significantly, this is almost 23% higher than last year at this time. Estimates are coming in that 1 in 136 US homes are experiencing some type of foreclosure issue. This is the highest that this rate has been since the foreclosure crisis began. The rate for Lee County is said to be 1 in 76 homes – and in some areas is significantly higher.

Florida is in the top 10 states for the highest foreclosure rate during this quarter, and is one of the 6 states [Florida, Ohio, Utah, Georgia, Michigan, Colorado and Illinois] which constitute 62% of the nation’s total foreclosure activity. Many reports have Florida at 4th in overall foreclosure activity in the nation. So even if you’re hearing that the recession is over, unfortunately for us, the foreclosure rates are most definitely not!

Posted by Shannon Houk

If you are wondering if your lender has to modify your loan if they took government funds, the long and short answer is NO. At our offices in Ft. Myers, Naples, and Sarasota, Florida, this is one of the questions we get asked most. Unfortunately, there is no legislation today or government guideline which requires any servicer or lender to modify your loan or reduce principal. CNN recently did a story on"> this issue.

Continue reading "Does My Lender Have To Modify My Loan If They Took Money From The Government?" »

The News-Press published a little article on page B-10 this morning about the amount of bank debt among local banks. It appears that some local banks have significant debt problems. The article compared local banks, and their non-accruing real estate debt, from the second quarter of 2008 to the second quarter of 2009. It's not pretty.

Lee County Banks

First Community Bank of Southwest Florida From: $3 mill To: $14.7 mill
Commerce Bank of Southwest Florida From: $1.6 mill To: $12.7 mill
Busey Bank, N.A. From: $ 14 mill To: $ 33.7 mill

Collier County Banks Highlights:

Hillcrest Bank of Florida From: $1.1 mill To: $21.7 mill
Liberty Bank From: $5.5 mill To: $15.5 mill
Bank of Naples From: $2.5 mill To: $7.5 mill
Royal Palm Bank of Florida From: $6.9 mill To: $19.7 mill
Bank of Florida Southwest From: $17.5 mil To: $ 83.7 mill
TIB Bank From: $19.5 mill To: $57.7 mill
Orion Bank From: $106.8 mill To: $210.4 mill
Florida Community Bank From: $102 mill To: $175.4 mill

These numbers are scary in and of themselves. Just imagine the lost revenue for the banks. How do they continue lending when they are not making ends meet themselves? It's not like there are companies beating down their doors to buy these loans at this time?

Even more interesting is the disparity between Lee and Collier Counties. Is it that more loans in Collier County are going into default? Or, are there less loans in Collier County with higher amounts defaulting?

Continue reading "As Bank Debt Grows Modifications Slow !" »

I live in Southwest Florida. I represent people who live in Fort Myers, Lehigh Acres, Cape Coral, Naples, Port Charlotte and Sarasota in Bankruptcy and Foreclosure Defense. Today I read an article that made me sick. The article stated that nearly 1 out of 4 homeowners were under water on their homes. In October of 2008, I wrote a blog for our bankruptcy blog entitled: How many Southwest Florida Residents' Homes are Underwater?

Additionally, I wrote for the Mortgage Law Network about how many homeowners were underwater nationwide.

Continue reading "Fort Myers, Cape Coral and Lehigh Real Estate: Where Are We Going?" »

The Federal Government wants to pay the mortgage companies to help consumers complete Short Sales and Deeds in Lieu of Foreclosure. Recently, the Obama Administration has set more taxpayer money aside to provide an incentive to banks and mortgage companies to help consumers. Call me silly, but didn't the Federal Government pass legislation which asked the banks and mortgage companies to do this over the past several years. I guess when the Federal Government asks you to do something, you don't really have to do it until they pay you to do it.

So now mortgage lenders like Wells Fargo and Bank of Americawill be paid to help consumers. Is anyone else seeing through the bologna here. This is just another stimulus to help the banks and mortgage companies on the backs of the American Consumer (i.e. you and me). Where are the guidelines on these plans? Did the Federal Government just give a blank check to the mortgage companies and banks?

Continue reading "Government Wants To Pay Banks To Do Short Sales and Deeds In Lieu" »

Recently, Carmen Dellutri, a Board Certified Consumer Bankruptcy Attorney, was asked by the News Press to answer some questions about the mortgage modification bill. His answers appear at this link. I will admit that there is no editing and at one time I nearly broke the microphone. I also made a few errors. The Housing bill passed the House on March 5, 2009, not the first. Second, Senator Nelson's first name is Bill, not Tom. Although one could say he looks like a Tom.

I hope this helps.

Continue reading "Carmen Dellutri on News-Press.com about Mortgage Bill" »

The first three months of 2009 in Fort Myers and Cape Coral, Florida seemed pretty normal, if your idea of normal is a horrible economy, excessive foreclosure filings and outrageous jobless numbers. Let's talk about the 24% increase in foreclosures in Lee County. This number will continue to rise until our elected officials do something about it. The housing bill would be a great start if the politicians would stop playing politics with the bill. During this time of crisis, the politicians are still debating the best way to handle this crisis. The House of Representatives passed a bill on March 1, 2209, and our Senators are, well, thinking about it. It seems to me that the housing issue would be important enough for our Senators to push this issue just a little.

Continue reading "Mortgage Foreclosures Up 24% In First Three Months of 2009" »

The President's Housing Bill is about to be destroyed in the Senate. The most important provision is about to be deleted because it is not in the best interests of the banks. Shockingly, the Housing Bill is about to become a spending bill. This housing bill contained a provision which would allow bankruptcy judges to strip down first mortgages on personal residences. Out of all the noise contained with this bill, the one group of individual who should be complaining is the Bankruptcy Judges in Florida, Nevada, California, Ohio, and the other states where foreclosures are through the roof.

Continue reading "Senate Decision To Remove Bankruptcy Modification From Housing Bill Will Kill All Modifications" »

The Dellutri Law Group recently updated the website by adding a mortgage modification video to the website. Actually, it is a commercial that we shot but never ran because we did not need to run the commercial. We are being referred cases from clients, attorneys and people in the industry.

Additionally, there are 5 new bankruptcy videos as well in our media section. Please feel free to review them as well.

The video can be found in the media section of the website. The media section is found on the lower right hand section of the homepage.

Continue reading "Dellutri Law Group Adds Mortgage Foreclosure Defense Video to Website" »

Sarasota, Port Charlotte, Fort Myers, Cape Coral and Naples residents are being misled by the Obama Administration's Homeowners Assistance Program.

“Those that forget history are doomed to repeat it.”- Aristotle

-The government's new program to help homeowners creates an adjustable rate modification that starts with a low interest rate and then raises at the end of the modification period. Didn't adjustable rate mortgages help create this mess.

-Servicers who have constantly told homeowners that they have to be behind on their mortgage before they can help them and then ignore homeowners requests for help for weeks or months, get paid by the government to modify a loan despite the fact that they have not spent any money funding the loans .

Continue reading "Quick Thoughts About The New Homeowners Assistance Program" »

As a Consumer Bankruptcy Attorney in Naples and Fort Myers, I see things happening which make no sense. While reviewing the various articles written about the "new" program announced to help homeowners, I came across the following hypothetical situation in the Wall Street Journal. The hypothetical sets forth the following scenario of how the bill would help the homeowner. If your loan is $225,000 at a 6.5% interest rate, the homeowner's payment would drop about $495, by lowering the interest rate to 2.73%. At the end of a 5 year period, after the lender receives federal subsidies, the principal balance would be $193,000. This sounds like a great deal until you apply the hypothetical to the Lee County housing market.

The problem facing Lee County homeowners is that the $225,000 dollar loan is for a house that is currently worth less and in most cases significantly less. For example if the house were worth $150,000, at the end of the five year period the house would still be worth less than what is owed on the loan, by perhaps as much as $40,000. (Even if housing prices stop their steep decline and start to recover the homeowner is still facing a deficit of about $20,000). Leaving the homeowner still unable to sell their home for what it is worth, while at the same time increasing the interest rate at the expiration of the five year period.

This new program allows the suffering homeowners the right to rent their own home while paying the costs for property taxes and insurance, only to be left with the same predicament of owning a home they cannot sell for what it is worth. Is this really homeowner relief or assistance?

This post was submitted by David Lampley, Esq. attorney for The Dellutri Law Group, P.A. Currently, the firm has offices in Port Charlotte, Fort Myers, Naples and Sarasota. Mr. Lampley is currently serving as co-chair of the Lee County Foreclosure Relief Task Force. Mr. Lampley also writes for the firm's bankruptcy blog.

President Obama released his plan to help the mortgage foreclosure crises. He calls it a housing plan. At the Dellutri Law Group, our team of consumer attorneys are analyzing this plan. Our initial evaluation is that it will NOT be adequate to help Southwest Florida in any meaningful manner. The News-press is reporting that the plan will help 34,000 residents in Southwest Florida.

The only meaningful modification will be if President Obama signs into law the Helping Families Save Their Homes in Bankruptcy Act 2009. This legislation will allow individuals to not only lower their mortgages, but also, reduce all of their debts.

Continue reading "Obama's Housing Plan Puts Band Aid on Lee County's Broken Arm" »

The citizens of Lee County, Florida and the rest of Southwest Florida whose home values have nose-dived may have relief coming in the near future. The Mortgage Modification provisions contained in "The Helping Families Save Their Homes in Bankruptcy Act" is very likely to be voted on Wednesday of this week. That's right in the next two days. So, it is now more important than ever to notify your members of the House of Representative and the Senate. In Florida, click here for links to your Local Representative. It is important that you write, call or e-mail your local congressman and impress upon him or her the facts of this legislation. For More Information, please contact the author.

Continue reading "Mortgage Modification Bill May Be Voted On This Week" »

The other day I wrote a blog for Mortgage Law Network. The blog discussed how I believed the King Amendment, if attached to the bill and passed into law, would change the dynamics of the bill. Litigation will explode as mortgage servicers and companies attempt to create a scenario of fraud.

Continue reading "Helping Families Save Their Homes in Bankrutpcy Act 2009 and The King Amendment" »