IL App Ct Vacates Foreclosure Due to Alleged HAMP Violation, But Rejects Borrower’s Challenge to Notice of Sale

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The Illinois Appellate Court, First District,  vacated an order confirming a foreclosure sale and remanded the matter for an evidentiary hearing, where the mortgagee allegedly moved forward with a foreclosure sale despite an allegedly pending FHA-HAMP application. http://ow.ly/IHcjh

This dual tracking is common throughout the country and many times the foreclosure attorney and the loss mitigation  office of the lender are not in communication

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney #ClearwaterEstatePlanning #ClearwaterProbate

FL App Ct (4th DCA) Reverses Dismissal of Foreclosure Based on Missing Original Note

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The District Court of Appeals of the State of Florida, Fourth District, reversed the involuntary dismissal of a bank’s mortgage foreclosure action.

The bank filed the original promissory note prior to trial, but at trial the parties discovered that it was missing from the court file. The bank tried to introduce a copy into evidence, but the borrowers objected on the basis of the “best evidence” rule. The clerk of court later found the original note and mailed it back to the bank, which then moved for rehearing or a new trial. The trial court denied the motion and entered final judgment for the borrowers.

On appeal, the Appellate Court analyzed the text of Florida Rule of Civil Procedure 1.420(b), which governs involuntary dismissal in bench trials, pointing out that Florida courts have interpreted the rule as preventing a trial court from involuntarily dismissing a case before the plaintiff rests the case which is what was done by the lower court.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-3654.op.pdf   

Florida Trial Court Rules Mortgagee’s Notice Including Info as to Overdue Payments, Amount of Arrears Was Not an Attempt to Collect a Debt

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Robinson v Wells Fargo (FCCPA, Brevard County FL)

A Florida trial court  held that a mortgagee’s direct communication to a borrower regarding funds applied to the loan (which included information as to overdue payments, amount of arrears, and the status of loss mitigation) did not constitute a debt collection communication, and therefore did not violate the Florida Consumer Collection Practices Act’s prohibition on communicating directly with a consumer with knowledge that the consumer is represented by an attorney. 

The Florida Consumer Collection Practices Act (hereinafter FCCPA) defines communication as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  See §559.55(5).

Under the FCCPA, in collecting consumer debts, no person shall “[c]ommunicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.”  See §559.72(18).

The Florida trial court held that the correspondence at issue was “informational and not an attempt to collect a debt,” and was not a prohibited communication in violation of §559.72(18).

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

Fair Debt Collection Act and Offer of Setttlement

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The U.S. Court of Appeals for the Eleventh Circuit held that a settlement offer for alleged violations of the federal Fair Debt Collection Practices Act does not deprive the district court of subject matter jurisdiction due to mootness, if the settlement offer does not also include an offer of judgment.    
 

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: [email protected]

U.S. Supreme Court Agrees to Review Florida Chapter 7 Lien Strip Cases

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The U.S. Supreme Court agreed earlier this week that it would hear the cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona following the bank’s appeal in both cases, which were both decided in favor of the homeowners by the 11th Circuit U.S. Court of Appeals back in May. The Supreme Court said in granting the petition on Monday that it would consolidate the two cases and allot one hour for oral arguments.

This is not good for chapter 7 debtors in Alabama, Georgia, or Florida because the Supreme Court might disagree with Eleventh Circuit decisions that currently allow lien strips in chapter 7 cases. An unfavorable decision could potentially invalidate numerous previous lien strips in chapter 7 cases in these states.

The 1992 case of Dewsnup will be clarified. Is there a distinction between strip offs and strip downs in Ch. 7 as the 11th Circuit believes, or not?  Stay Tuned.