Note Worthy Foreclosure Cases March 2016

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I am extremely sad to announce that Hon. Cynthia Cox has transferred from Civil/ Foreclosure to Criminal/Mental Health in the 19th Circuit.   She was extremely helpful and knowledge. The foreclosure attorneys will greatly miss her insight and case law update. Good Luck Judge Cox in your new courtroom.

There are many recent changes to foreclosure case law that effect consumers. In an effort to keep you informed of what you may see in your foreclosure defense case, I have listed some case synopses here.  Many of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis could not be improved upon so I posted hers in tact.

Pinellas, Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your foreclosure defense today.

Note Worthy Foreclosure Cases March 2016 

Ortiz v. PNC, Case No. 4D15-242 (4th DCA 3/30/16 substituted for 3/9/16 opinion) The combination of evidence (original note filed in same condition as attached copy to complaint) is sufficient to establish the Bank had actual possession of note at time of filing and had standing. Substantial compliance with conditions precedent is all that is required in foreclosures (Paragraph 22). 

Knowles v. BNY, Case No. 4D15-630 (4th DCA 3/30/16) No standing where there is no evidence that the Note was transferred into the trust prior to filing and involuntary dismissal ordered.   See also Jelic. 

Alexandre v. Scribner Village HOA, Case No. 4D15-1514 (4th DCA 3/30/16) BK petition automatically stays any further f/c action and error to enforce FJ when stay in place.   Sale should have been set aside.

Catalina v. FNMA, Case No. 15-0271 (3d DCA 3/30/16) Associations are not entitled to interest, late fees, atty fees and costs of collection under the safe harbor protection of 720.3085(2)(c) and only assessments and common HOA expenses.

Alekseyev Shapiro v. US Bank, Case No. 4D14-2668 (4th DCA 3/23/16) Trial court loses jurisdiction to vacate a “voidable” final judgment after 1 year under Rule 1.540.

Firth, Case No. 5D15-3301 (5th DCA 3/21/16) Entry of default FJ without trial when damages are unliquidated (liability only) is error – defaulted party entitled to receive notice of trial on damages. Default as to liability is not a final order.

Cornerstone v. Painted Post, Case No. 4D15-1907 (4th DCA 3/16/16)   Simply failing to make payments in Florida is not sufficient minimum contact with Florida to assert personal jurisdiction.

Geweye v. Ventures Trust, Case No. 2D14-4668 (2nd DCA 3/16/16) Original Note indorsed in blank and Assignment of mortgage (which did not assign interest in Note) did not establish standing on date of filing.   An order of substitution does not create standing.

Lentz v. Community, Case No. 3D14-0726 (3d DCA 3/9/16)   SJ reversed for Court to enforce the parties’ mediation agreement.   Although Courts cannot force banks to offer modifications, Florida’s policy is to promote settlement after the Bank attempted to alter an illusory MSA. 

Chase v. Greenwood, Case No. 5D15-832 (5th DCA 3/2/16) Failing to appear at hearing due to inadvertent secretarial error = excusable neglect and dismissal reversed per Brogdon.

Miller v. BNY, Case No. 4D15-36 (4th DCA 3/2/16)   Failure to send proper notice of acceleration is complete dismissal (as to both acceleration and past due amounts – see Holt v. Calchas substituted opinion @ 155/499).

 

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

Social Security Benefit Payable on Death

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A deceased beneficiary may have been due a Social Security payment at the time of death, this is because Social Security actually pays one month behind. So if you die in September, your family is due the benefit from August.

Amounts due a deceased beneficiary may be paid to a family member or a legal representative of the estate in the following order.

  1. The surviving spouse who was either living in the same household as the deceased at the time of death or who, for the month of death, was entitled to a monthly benefit on the same record as the deceased;
  2. Children who, for the month of death, were entitled to a monthly benefit on the same record as the deceased;
  3. Parents who, for the month of death, were entitled to a monthly benefit on the same record as the deceased;
  4. A surviving spouse not qualified under 1. above;
  5. Children not qualified under 2. above; ****
  6. Parents not qualified under 3. above; or
  7. The legal representative of the deceased person’s estate.

https://www.ssa.gov/forms/ssa-1724.pdf

https://www.ssa.gov/forms/ssa-1724.html

https://secure.ssa.gov/ICON/ic001.do#officeResults

*** Note if  you have more then one adult child and money is not going into an estate account each child will need to fill out their own form.  The Social Security Administration will not release all the money to one child. This is a great safety net since a client’s sister tried to get all the money sent to her along with the  IRS tax refund recently.

 

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

 

Bankruptcy Form Changes April 1, 2016

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Under Section 106 of the Bankruptcy Code Changes are made every three years  based on the change to the consumer price index, and rounded to the nearest $25.  The following forms are pending change: 

  • Official Form 106C, The Property You Claim as Exempt
  • Official Form 107, Your Statement of Financial Affairs for Individuals Filing for Bankruptcy
  • Official Form 201, Voluntary Petition for Non-Individuals
  • Official Form 207, Statement of Your Financial Affairs
  • Official Form 410, Proof of Claim
  • Official Form 122A-2, Chapter 7 Means Test Calculation
  • Official Form 122C-2, Chapter 13 Calculation of Your Disposable Income
  • Director’s Form 2000, Required Lists, Schedules, Statements, and Fees
  • Director’s Form 2500E, Instructions
  • Local Form 97-A, Debtor’s Certificate of Compliance, Motion For Issuance of Discharge and Notice of Deadline to Object
  • Local Form 97-B, Debtor’s Certificate of Compliance, Motion For Issuance of Discharge Before Completion of Plan Payments, and Notice of Deadline to Object
  • Instructions for Individual Debtors
  • Instructions for Non-Individual Debtors

 

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

 

HUD Enhancement Protection

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The U.S. Department of Housing and Urban Development (HUD) on Friday announced significant changes to its Distressed Asset Stabilization (DASP) program meant to offer more protections to borrowers facing foreclosure and increase non-profit participation in purchasing distressed loans.

Under the new rules, loan servicers are required to delay foreclosure on a home for a year and evaluate all borrowers facing foreclosure for participation in the government’s Home Affordable Modification Program (HAMP) or a similar loss mitigation program. Loan servicers could previously foreclose on a home six months after they received the loan and were not required to evaluate borrowers for loss mitigation programs, though they were encouraged to do so.

http://www.dsnews.com/news/04-24-2015/enhancements-to-huds-distressed-asset-program-give-borrowers-more-protection

 

 

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

FHFA Enacts New Rules for Sales of Non-Performing GSE Loans

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When Freddie Mac and Fannie Mae started selling off it’s non-performing GSEs in March 2015 it did it primarily through two sales.    Sales of NPLs by the two Enterprises generally include loans that are seriously delinquent, which are those that are 90 days or more past due. In many cases, the seriously delinquent loans in the GSE portfolios are more than a year overdue.

These loans included ones that were in bankruptcy, have resulted in double reporting on credit reports, multiple claims from the new lender / servicer of different balance amounts due and other headaches. It looks more like five nights at Freddie’s then a help to consumers.

The enhanced   requirements are as follows:

requiring bidders to identify servicing partners at the time of qualification, and also requiring bidders to complete a questionnaire to demonstrate a record of successful loan resolution through foreclosure alternatives; requiring the new servicer to evaluate all pre-2009 borrowers (other than those with a vacant property or an imminent foreclosure sale date) for the government’s Home Affordable Modification Program (HAMP), and evaluating all post-2009 borrowers for proprietary modifications; requiring servicers to apply a “waterfall of resolution tactics” before resorting to foreclosure, a waterfall that includes evaluating borrowers for HAMP eligibility or proprietary modification eligibility, short sale, or deed-in-lieu of foreclosure; encouraging servicers to sell foreclosed or REO properties to either a non-profit or someone who will occupy the property as a primary residence; requiring subsequent servicers to assume duties of the initial servicer; providing for better bidding transparency by developing a process for announcing upcoming NPL sale offerings that includes a proactive outreach to all potential bidders; and requiring buyers and servicers to report loan resolution results and borrower outcomes to Fannie Mae and Freddie Mac for four years after the NPL sale.

For More Info:

http://www.fhfa.gov/Media/PublicAffairs/Pages/Non-Performing-Loan-%28NPL%29-Sale-Requirements.aspx

http://www.dsnews.com/news/government/03-02-2015/fhfa-enacts-new-rules-sales-non-performing-gse-loans

 

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

Obama Care Penalty

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If you miss tonight’s deadline, you will not have active coverage at the start of the New Year.

And if you choose not to get coverage at all, you could face a fine of $695 or 2.5% of your income, whichever is greater.

Don’t miss this deadline! Visit us online at GoHealth.com to get coverage now.

Marketplace down.  Call 1-800-318-2596

 

 

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

4th DCA FL App Ct Reverses Trial Court’s Ruling Allowing Mortgagee to Correct Foreclosure w/ Wrong Legal Description

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Fourth District District Court of Appeals of the State of Florida, entered a final summary judgment of foreclosure that had been entered with the incorrect legal description was a “voidable,” not “void” judgment and, as a result, was subject to the one year time limit for motions to vacate the judgment.

The Court held, that the mortgagee filed its motion to vacate the judgment more than three years after it was entered, the trial court erred in granting the mortgagee’s motion to vacate.

A copy of the Court’s opinion is available at:  http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-4066.op.pdf

 

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

HAMP does not Create Private Cause of Action

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The Eleventh Circuit Court of Appeals  recently held that the Home Affordable Modification Program (“HAMP”) does not create a private cause of action.  

the parties had a temporary modification in place, and athough the two parties agreed to a temporary modification, the lender then indicated that it would not extend a permanent loan modification to the borrower.     

The borrower sued, alleging that the lender had not complied with its obligations under HAMP. The borrower alleged breach of contract and promissory estoppel, among other claims, in connection with his HAMP allegations. 
HAMP does not expressly create a private right of action for borrowers, the Eleventh Circuit began its analysis by reviewing the relevant factors to determine whether HAMP might create an implied right of action: (1) whether the plaintiff is one of the class for whose “especial benefit” the statute was enacted; (2) whether there is any indication of legislative intent for or against the creation of a private right of action; (3) whether an implied remedy for the plaintiff is consistent with the purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law. 
After consideration of those factors, the Eleventh Circuit held that “it is clear that no private right of action exists” under HAMP. 
The Court found the purpose of the Emergency Economic Stabilization Act of 2008 and HAMP, was to “restore liquidity and stability to the financial system of the United States.”  12 U.S.C. Sec. 5201(1).  Further, the Court found no evidence of legislative intent to create a private right of action. 
http://www.ca11.uscourts.gov/opinions/ops/201115166.pdf

 

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

 

11th Cir Compels Arbitration in Overdraft Fee Putative Class Action, Severs Allegedly Unconscionable Fee Shifting Provision from Arbitration Provision

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The Eleventh Circuit Appeals held in a putative class action that:  (1) the Federal Arbitration Act did not preempt South Carolina law regarding the contract defense of unconscionability; (2) a fee-shifting provision in a bank’s deposit account agreement containing a separate mandatory arbitration provision was unconscionable and thus unenforceable; (3) the fee-shifting provision was severable from the arbitration provision; and  (4) the mandatory arbitration provision was thus enforceable.
A bank depositor filed a putative class action against Bank,  regarding charged overdraft fees on checking accounts.
 
The district court denied Banks’  motion to compel arbitration, ruling that the arbitration agreement was unconscionable and thus unenforceable under South Carolina law.  Bank appealed the ruling.
The bank appealed twice!   In light of the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S CT. 1740 (2011)(“Concepcion”), the Eleventh Circuit remanded with instructions to compel arbitration, ruling that, severed from the unconscionable Fee-Shifting Provision, the mandatory arbitration provision was enforceable.
 
The Eleventh Circuit noted that the FAA did not preempt “‘generally applicable contract defenses’ provided by state law ‘such as fraud, duress, or unconscionability’”  See Concepcion, 131 S.Ct. at 1746. South Carolina’s test for unconscionability applied equally to arbitration as well as other agreements.  See, e.g., Community State Bank v. Strong, 651 F.3d 1241, 1267 (11th Cir. 2011).
 
Concluding that the terms of the Fee-Shifting Provision were unconscionable under South Carolina law, the Eleventh Circuit ruled that the Fee-Shifting Provision was unenforceable. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)(losing parties normally not entitled to recover costs and fees). 
  
http://www.ca11.uscourts.gov/opinions/ops/201114318.pdf

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

 

6th Cir Holds Mortgagee Did Not Breach Settlement w/ Borrower By Disclosing Cancelled Indebtedness to IRS

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The U.S. Court of Appeals for the Sixth Circuit  reversed  a  summary judgment in favor of a mortgagor where the plain language of a settlement agreement ( in a breach of contract claim) did not prohibit a lender from reporting its transaction with the Internal Revenue Service (IRS).

http://scholar.google.com/scholar_case?q=mccluskey+v+century+bank+sixth+circuit&hl=en&as_sdt=400006&as_ylo=2015&case=5477080525693672075&scilh=0

The Sixth Circuit concluded the Settlement Order said nothing about how each party would treat the transaction for tax purposes nor about how each party would report the transaction to  the IRS.  The Lender  was allowed to issue the 1099.

 

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