In Stoltz v. Aurora Loan Services, LLC, the Second District Court of Appeal ruled that Neustein Law Group successfully challenged the bank’s right to bring the foreclosure action, which resulted in a dismissal. In that case, Neustien Law Group successfully argued that Aurora Loan Services, LLC did not prove that they had the right to foreclose.

In HSBC Bank USA v. Magua, Neustein Law Group challenged a final judgment of this 2007 foreclosure case based on Hearsay evidence and lack of Standing. After Neustein Law Group filed its initial brief attacking the bank’s right to foreclose and the evidence used at trial, the bank filed a confession of error, resulting in another win for the homeowners.

The Fourth District Court of Appeal affirmed two more victories by Neustein Law Group against Deutsche Bank National Trust Company, as Trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-5 v. Preddie and Deutsche Bank Trust Company Americas as Trustee RALI2006-QS6 v. Page.

The Fourth District Court of Appeal also reversed in part Lasala v. Nationstar Mortgage, LLC, due to the bank’s failure to prove the amount owed. In that case, Neustein Law Group successfully argued that the bank failed to prove the amount of damages sought in the Final Judgment. The case was remanded back to the trial court.

In 575 Adams, LLC v. Wells Fargo Bank, Neustein Law Group represents a non-borrower who was wrongfully denied his right to conduct discovery and take the deposition of the bank’s trial witness. The Third District Court of Appeal quashed the lower court’s order granting the bank’s Motion for Protective Order. This case affirmed that a property owner has the legal right to aggressively defend a foreclosure action even if he or she is not the original Borrower.

The attorneys and staff at the Neustein Law Group, PA have been defending foreclosures longer than most any other firm in the State of Florida. Led by Frederick Neustein, Esq. and Nicole Moskowitz, Esq., Neustein Law Group, PA is a boutique commercial litigation firm headquartered in Aventura, Florida in Miami-Dade County and has several convenient satellite offices located twenty minutes from wherever you are in Miami-Dade County, Ft. Lauderdale/Broward County, Boca Raton, West Palm Beach, Palm Beach County, and throughout the state of Florida. Their direct phone number is 305-531-2545 or (888)400-ATTY. Website is www.Stopforeclosurelawyer.com

Si no hay oposición, generalmente el demandante prevalecerá en un juicio sumario en una acción de ejecución hipotecaria. Sin embargo, es mucho más difícil para el demandante para prevalecer si el propietario está defendiendo la acción. El primer paso en la defensa de una moción para la sentencia sumaria es presentar una declaración jurada o algún relevante testimonio de deposición en oposición a la moción. También es aconsejable solicitar un memorando de derecho de oposición. Regla 1.510 exige que la declaración jurada en oposición ser presentada a mas tardar a las 5:00 p.m. 2 días hábiles antes de la fecha de la audiencia.

Cada caso es específico sin embargo, existen numerosas defensas afirmativas que pueden plantearse con el fin de derrotar a un juicio sumario. La clave es asegurarse de que son conscientes de todo el potencial que tiene defensas y presentar una declaración jurada oportunamente.

Sin embargo, al leer en su totalidad, es mucho más difícil para un demandante a obtener una sentencia definitiva mediante el presente estatuto. 702.10(1)(a)(3) afirma que la orden enviada por el tribunal demandado a alertas aparecen en una orden para mostrar causa audiencia deberá declarar que la Interposición de defensas por una “moción, sensible escrito, una declaración jurada, u otros papeles antes de la audiencia para demostrar la causa que plantear una verdadera cuestión de hecho material que impediría la entrada de sentencia sumaria o que constituyen una defensa legal a la ejecución hipotecaria constituirá motivo para no entrar en el tribunal de sentencia definitiva.” Por este párrafo, parece que la mera presentación de algún tipo de defensa es suficiente para derrotar a una orden para mostrar causa. Sin embargo, esto es justamente lo que la orden tiene el estado.

702.10(1)(b) reitera que “[i]f un acusado archivos por una moción defensas, una respuesta verificada, declaraciones juradas u otros documentos o presenta pruebas en o antes de la audiencia que plantear una verdadera cuestión de hecho material que impediría la entrada de sentencia sumaria o que constituyen una defensa legal a la ejecución hipotecaria, tal acción constituye la causa e impide la entrada de sentencia definitiva en la audiencia para demostrar la causa.” (énfasis agregado). Por la simple lectura de los estatutos, una presentación de algún tipo de defensa impedirá la entrada de sentencia definitiva a la orden para mostrar causa la audición.

In recent months we have been seeing more and more Plaintiff’s firms attempting to obtain final judgment through the use of Florida Statute 702.10. The reason being is that it can often be quicker than going for summary judgment or trying to obtain judgment at trial. It works like this: Plaintiff will file a Motion for Order to Show Cause for Entry of Final Judgment of Foreclosure and the court will review the file in chambers and without a hearing. If the court “finds that the complaint is verified, complies with s. 702.015, and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.” Florida Statute 702.10(1). An order to show cause hearing is then held whereby the court will determine whether or not to enter final judgment.

However, when read in its entirety, it is much more difficult for a Plaintiff to obtain a final judgment using this statute. 702.10(1)(a)(3) states that the order sent out by the court alerting defendant to appear at an order to show cause hearing must state that the filing of defenses by a “motion, responsive pleading, an affidavit, or other papers before the hearing to show cause that raise a genuine issue of material fact which would preclude the entry of summary judgment or otherwise constitute a legal defense to foreclosure shall constitute cause for the court not to enter final judgment.” Per this paragraph, it appears that the mere filing of some sort of defense is enough to defeat an order to show cause. However this is just what the order must state.

702.10(1)(b) reiterates that “[i]f a defendant files defenses by a motion, a verified answer, affidavits, or other papers or presents evidence at or before the hearing which raise a genuine issue of material fact which would preclude entry of summary judgment OR otherwise constitute a legal defense to foreclosure, such action constitutes cause and precludes the entry of final judgment at the hearing to show cause.” (emphasis added). Per the plain reading of the statutes, a filing of some sort of defense will preclude the entry of final judgment at the order to show cause hearing.

Much of the case law maintains that the sufficiency of affirmative defenses should be considered after the close of discovery. There is logic in this in that obviously the defendant does not know everything about the case and does not have all of the facts. The purpose of discovery is to “discover” new facts and pieces of information that you were not aware of previously. At that point the court would then be able to determine whether the defendant has uncovered evidence and fact, which are sufficient to support the affirmative defense it pled. However, many plaintiff’s attorneys, using Florida Rule of Civil Procedure 1.140(f), attempt to strike the defenses as “redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” However, the proper inquiry as to an affirmative defense (prior to the close of discovery) is whether it is “legally sufficient on its face.” Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). The purpose of the affirmative defense is merely to put the other side on notice of what is required to be proved in order to win. It essentially gives the moving party a chance to prepare.

Obviously it is necessary for the defendant to file affirmative defenses. If they don’t, they are basically conceding the case and there was not point to ever hire an attorney in the first place. However, motions to strike on the other hand really serve no effective purpose other than give plaintiff’s attorney a chance to rack of billing. They could easily just file a reply in opposition to the affirmative defenses but they don’t. The reason they don’t is simple: money.

• The subrogee (party seeking subrogation) must pay the debt to protect its own interest.
• The subrogee must not act as a volunteer.
• The subrogee must not be primarily liable for the debt;
• The subrogee must pay off the entire amount of the debt; and
• Subrogation must not harm the rights of any third party.

Equitable subrogation is most commonly invoked by companies that refinance a mortgage. The refinancing company may pay off the original lender and as such, they want to have the rights. Put differently, equitable subrogation is available to substitute (subrogate) a refinancing lender to the position of the mortgage or lien that the lender satisfied. This second lender, who anticipated taking the subrogated position, is now permitted to take the lien priority of the loan it satisfied.

This issue has been the source of much litigation in recent years. One issue is that of second mortgages who argue that after the first mortgage is satisfied, then they are next in line. Unfortunately, the Appellate Courts have not weighed in on equitable subrogation and most of the case law we have is from the early 1900’s. As we are seeing more and more mortgages that are void, the issue of equitable subrogation is coming up more frequently and hopefully more case law will come down soon.

However, you may file a Motion to Set Aside a Clerk’s Default. Florida Rule of Civil Procedure 1.500(d) states that, “[t]he court may side aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).” Under rule 1.540(b) a default final judgment may be set aside if you can prove that the failure to file an answer was due to the following: 1) excusable neglect 2) you have a meritorious defense and 3) you acted with due diligence to seek relief from the default.

While proving these three factors is certainly not impossible, we like to argue that Rule 1.500(d) draws a distinction between a clerk’s default for failing to file any paper in the action and default final judgment which is essentially an adjudication on the merits (end of the case). Arguably Rule 1.500(d) says that a final judgment must be set aside pursuant to 1.540(b) whereas a clerk’s default may be set aside liberally by the court. What we argue to the court if we are trying to set aside a clerk’s default (non-final judgment) is that the three factors listed above are not relevant and that the court may set aside the clerk’s default liberally. We have been very successful in doing so.

It is well settled case law that the court’s prefer to decide a case on the merits rather than a technicality which is what a clerk’s default is. There may be many reasons why you failed to file an answer or response. Maybe you did not know you needed to or were looking for an attorney and the twenty days went by. Regardless, you should be able to defend yourself, which is what we argue to the court. It is certainly possible to set aside a clerk’s default and a default final judgment however, like most things in the law, time is of the essence.

Think of an escrow account as a type of forced savings. Generally, the lender will divide the cost of your anticipated property tax by 12 and then collect that much each month in addition to your payment for principal and interest. The lender generally requires this in order to secure their collateral. It wants to make sure that the property taxes are paid because a tax lien would supercede their own. Likewise, it wants to make sure there is adequate insurance on the home in the event that a fire or something happens to its collateral. There is nothing inherently wrong with the idea of an escrow account. In fact, it is probably in your best interest to have one to ensure that your taxes and insurance is paid each month. However, the issue becomes whether or not the lender was requiring you to pay too much into the escrow account, which may have contributed to your defaulting on the loan and ultimate foreclosure action.

Section 10 of the Real Estate Settlement Procedures Act (RESPA) limits the amount of money a lender may require the borrower to hold in an escrow account. RESPA also requires the lender to provide the initial and annual escrow account statements. It is certainly not unheard of that the lender may be requiring too much money into your escrow account. There is a formula that the lenders must follow and a maximum they are allowed to charge. It you believe your lender is charging to much you do have certain remedies such as making a “qualified written request” to the lender concerning the servicing of the loan account.

This is just one of many options available. However it is best to consult an experienced foreclosure attorney. He or she can help figure out if you were charged too much and can also get part of the amount waived at or before trial.

¿Por qué los prestamistas usan MERS?
Al igual que la mayoría de las cosas, la respuesta es el dinero. Cada estado y condado tiene distintas normas cuando se trata de las transacciones inmobiliarias, y nivel de condado requisitos inscripción. Muchas de las grandes instituciones operan para hornear en numerosos estados y es que es difícil, o por lo que dicen, que cumplan con todos y cada uno de los estados y el condado requisito y porque los títulos respaldados por hipotecas’s) se venden con frecuencia, los bancos se cansó de pagar un canon cada vez grabación el MBS cambió de manos. Por lo tanto, MERS se creó para servir como propietario del registro (o del propietario del candidato) de la hipoteca, lo que permitió los prestamistas e inversionistas que son las partes interesadas a fin de evitar la necesidad de asignaciones de archivos cada vez que el MBS se vendió, lo que reduce los costes.

¿Cómo afecta esto a los propietarios?
MERS ha sido muy criticada por las que sólo se plantea una amenaza catastrófica de declararse en quiebra. Esto podría significar que los millones de hogares que actualmente tiene en cartera pasaría a la quiebra de la empresa inmobiliaria y estén disponibles para satisfacer sus créditos de los acreedores. No es habitual que se pudiera cerrar MERS en nombre propio. De hecho, en 2011 MERS cambió su política y no debe haber ningún cambio más hipotecas. Sin embargo, esto no quiere decir que MERS no se enumeran en una hipoteca o que será denominado como demandante en la acción de juicio hipotecario.

Sinceramente, MERS es un poco confuso y Florida tribunales entidad aparecen confusos en cuanto a la forma de la regla cuando un acusado problemas como el no tener MERS. Cada situación es diferente y la hipoteca y hay muchos factores que pueden entrar en si o no el propietario se ve afectado por los tipos que aparecen en su hipoteca. Sin duda, es sospechoso que se enumeran en las hipotecas, pero la reclamación para no ser el prestamista o demandante principal. Tenemos la sospecha de que se producirá un gran litigio en el futuro en relación con los tipos de cambio de mercado y su papel en el sector hipotecario.

(a) Issuance. When a judgment or order is for the delivery of possession of real property, the judgment or order shall direct the clerk to issue a writ of possession. The clerk shall issue the writ forthwith and deliver it to the sheriff for execution.

After the bank, lender or third-party purchaser has obtained title to the property, they will file a Motion to Issue Writ of Possession. This is essentially the last step in the foreclosure process before the new owner takes possession of the home. Once the judge signs the writ, it is given to the sheriff who will then come to your home and post the writ on your door. After the writ is posted, you have 24 hours to vacate the home. Often the writ is posted on a Thursday or Friday, which gives you the weekend to vacate, however, the sheriff is permitted to post the writ during any weekday.

Obviously you want to challenge the foreclosure action before the bank files a Motion to Issue Writ of Possession. By the time the writ is issued, your options are much more limited. However, an attorney may be able to negotiate with the bank to stay the issuance of the writ for another 30-60 days. This means that you will have time to prepare to move and will not be given just 24 hours to leave your home. An attorney may also file a Motion to Stay Writ of Possession. More than likely the judge will set a hearing on the Motion to Stay Writ of Possession and allow the party to present arguments as to why the writ of possession should not be issued.

While it is certainly best to challenge the foreclosure action prior to the writ being issued that does not mean you are without defenses. Similarly, if you are a tenant and a writ of possession has been issued, you have rights and may challenge the writ. Like every foreclosure/real estate dispute, the best course of action is to seek legal advice as soon as possible.

While it is certainly best to challenge the foreclosure action prior to the writ being issued that does not mean you are without defenses. Similarly, if you are a tenant and a writ of possession has been issued, you have rights and may challenge the writ. Like every foreclosure/real estate dispute, the best course of action is to seek legal advice as soon as possib

In U.S. Bank v. Bartrum, the cased was dismissed and five years had passed since the original default date. Bartrum argued that the bank could not bring another foreclosure action due to the statute of limitations. However, the Fifth DCA held that the lender was permitted to bring a new foreclosure action based on the theory that every missed payment after the date of dismissal was a ‘new’ default date and created a new cause of action. This case is currently pending before the Florida Supreme Court and will be heard later in the year. Unfortunately, many counties have followed the ruling in Bartrum and agree with the idea that each new default date creates a new cause of action.

The potential good news for homeowners is that the Third DCA recently held in Deutsche Bank Trust Co. Americas v. Beauvais that the lender is barred by the statute of limitations when a case is dismissed without prejudice and five years has passed since the original default date. This means that the lender cannot keep foreclosing on the same property after the five years is up. The bad news is that the Third DCA, possibly doubting its own ruling, granted a Motion for Rehearing, which will be heard in the coming months and may lead to a reversal of its prior decision.

As for now, most courts continue to side with Bartrum and its predecessors, which hold that after a dismissal, each subsequent default creates a new cause of action. Clearly this nullifies the statute of limitations and leaves many wondering the relevance of even having a statute of limitations. We will just have to wait and see what the Third DCA decides and more importantly, what the Florida Supreme Court decides in the Bartrum.

Foreclosure cases don’t usually have these dramatic scenes. In fact, many foreclosure suits are resolved without a trial, in a procedure known as “summary judgment.”

Lenders often file summary judgment motions in hopes of resolving the case quickly. As a borrower, you should understand that if the court grants a summary judgment motion, the case is decided in the lender’s favor, and a foreclosure judgment will be entered against you and a foreclosure sale date will be set by the court (usually in 30 days).

Summary judgment proceedings begin when one party to a lawsuit files a written motion for summary judgment with the court. The motion asks the court to decide two things: (1) that there are no factual issues in dispute; and (2) that based on the undisputed facts, the party making the motion is legally entitled to a judgment in his or her favor.

The motion will include legal arguments and supporting evidence. For example, in a foreclosure case, the lender’s evidence might include the promissory Note, the default letter that was sent to the borrower, and a payment history. The motion will also typically include affidavits establishing that the documents are authentic and admissible as evidence.

The lender must send opposing parties a copy of the motion and information about the date and time of the hearing. Borrowers and other parties to the lawsuit can file written responses to the motion. A response will usually raise factual issues, attack the lender’s evidence, or make a legal argument.

When a borrower doesn’t respond to the motion, the court will usually grant summary judgment in the lender’s favor. But in one recent case, a homeowner who was unable to attend a summary judgment hearing won reversal of a foreclosure judgment.

In Hubsch v. Howell Creek Reserve Community, a homeowner’s association had filed a lawsuit to foreclose based on unpaid association dues. The unfortunate homeowner was in prison, but she did file an answer denying the claims in the lawsuit. When the lender filed a motion for summary judgment, the homeowner asked to continue the hearing to a later date or to appear at the hearing by telephone.

The court denied the motion to continue but ignored the motion to appear by phone. The homeowner’s daughter then showed up at the hearing and – without her mother’s consent — agreed to a foreclosure judgment. The court entered judgment in the lender’s favor. Not surprisingly, the homeowner appealed.

The Court of Appeal said that prisoners are entitled to defend themselves in lawsuits, but must let the court know their intentions. In this case, the homeowner told the court she wanted to appear in court and raise a defense, and asked to appear by phone. When the court ignored the request, it denied the homeowner her due process rights. Because of this, the appeals court overturned the foreclosure judgment.

And now she’s facing a foreclosure suit that could cause her to lose everything she has. Does she have any defense?

The answer is….maybe. Spouses can’t be forced to sign personal guarantees just because they’re married to someone who is buying property or taking out a loan. But if the bank has a good reason for asking for the guarantee, then it may stand.

In Richardson v. Everbank, two wives signed personal guarantees when their husbands’ limited liability company took out a commercial loan. When they challenged the legality of those guarantees, one wife’s guarantee was voided, but the other’s was not.

Banks commonly require personal guarantees on business loans when the business does not have sufficient income, assets and credit history. When you sign a personal guarantee, you agree to pay the loan yourself if the business cannot pay it.

In the Richardson case, the business defaulted on the loan, and the lender filed a lawsuit for foreclosure and recovery of money due under the promissory note and personal guarantees. Because of the personal guarantees, both of the wives were named as defendants in the lawsuit.

The wives, claimed, however, that it was wrong for the bank to ask them to sign guarantees in the first place. They said that this violated the Equal Credit Opportunity Act of 1974, which prohibits a lender from discriminating against a loan applicant based on marital status. This discrimination could include requiring a wife to sign a personal guarantee if the husband could qualify for the loan on his own.

The Florida Court of Appeal outlined two reasons a lender could legitimately ask a wife to sign a personal guarantee. First, if the loan is secured by assets held jointly by the husband and wife, the lender might be unable to access those assets if the husband defaulted – unless the wife signed a guarantee. Second, if the husband couldn’t qualify for the loan on his own, the wife could act as a co-signer.

The financial statements submitted by the Richardsons showed that they jointly owned numerous assets, including a home, vehicles and personal property. It appeared that they also co-owned business ventures.

Because of the co-ownership of assets and Mr. Richardson’s failure to identify any assets that he owned by himself, the appeals court found that it wasn’t unreasonable for the bank to seek a guarantee from Mrs. Richardson. The guarantee protected the bank’s ability to reach the assets if Mr. Richardson’s company defaulted.

The other couple presented a different situation. That couple didn’t identify any joint assets on the loan application. The trial court found that the wife was only asked to sign a guarantee because she was married to a co-owner of the business. This was discrimination based on marital status, and therefore the guarantee she signed was void and unenforceable.