When negotiating a Deed in Lieu of Foreclosure in Florida be sure to have the lender agree to waive or release you from any deficiency in the difference between the mortgage amount owed and the ultimate market value of the property. This will prevent the lender from suing you in the future for that deficiency. A Deed in Lieu of Foreclosure will provide you no benefit unless you receive a waiver or relase of the deficency.
Just because you are not able to pay your mortgage it does not mean that you do not have a right to defend a foreclosure in Florida. In defending a foreclosure, it is imperative to review all of the documents that you have in your possession from your closing. There are various federal laws and state laws that require lenders to comply with in closing a home purchase, such as the Truth in Lending Act and the Real Estate Settlement Procedures Act. Furthermore during the real estate boom, it became common practice for lenders to inflate the income of homeowners in the Uniform Residential Loan Application in order to qualify the borrower for a larger loan than he or she could afford. Don’t forget that in Florida you have rights and one of those rights is to defend your foreclosure.
On Sunday March 1, 2009, the New York Times wrote an article regarding Ana Fernandez, who’s home had been sold by the bank, however, the Law Office of Ray Garcia, P.A. in its representation of Ms. Fernandez was able to set aside the sale and set aside the summary judgment. The bank, Chevy Chase failed to produce the Note and there was no eveidence that the originating lender had assigned the Note to Chevy Chase.
http://www.nytimes.com/2009/03/01/business/01gret.html
By Carmen Dellutri on Janaury 28, 2009
A Las Vegas Jury recently awarded a family $3.4 million in a wrongful foreclosure case. As you can guess, this wasn’t your everyday foreclosure. It kind of reminds you of the McDonalds hot coffee case. After testimony, the Jury found that Countrywide Home Loans, Inc. wrongfully foreclosed on the Plaintiff’s condo and awarded the Plaintiff $922,690 in compensatory damages and $2.5 million dollars in punitive damages. As a lawyer who regularly sues insurance companies, mortgage companies and credit card companies, I think the Jury got it right.The Plaintiffs had temporarily moved to Tucson, Arizona for work. Countrywide sued for foreclosure, wrongfully, and sold the condo. The Plaintiffs discovered what happened in 2003. Somewhere down the line, the Plaintiff’s personal possessions were discarded and some items, including a wedding dress and family photos, may have been thrown into the trash. How could something like this happen? Good Question. The foreclosure was supposed to happen on another condo.
As a lawyer, you always wonder why this case wasn’t resolved by Countrywide prior to the trial. One can only guess as to what Countrywide was thinking. Normally, the two sides just don’t value the case in the same way. I would like to congratulate the Plaintiff’s attorney on a job well done. Countrywide said in a statement that they are very disappointed in the result. Yea, imagine that. Now, they will probably spend a fortune appealing the juries decision, instead of doing the right thing and paying the Plaintiffs for their screw-up.
The Florida Fair Lending Act, Chapter 494, Florida Statutes, prohibits predatory tactics on high cost home loans, including:
* Charging prepayment penalties for longer than three years
* Increased interest on loans going into default
* Balloon payments on loans that mature in less than 10 years
* Extending credit regardless of a borrower’s ability to pay
* Making direct payments to home improvement contractors
* Calling a loan due even though the borrower has complied with the terms of the loan
* Refinancing a loan during the first 18 months, unless there is a benefit to the borrower
* Offering to originate a loan at the borrower’s home without a prearranged appointment
* Charging late fees that exceed five percent of the payment
The law also requires lenders to disclose certain facts about the loan at least three days prior to closing the deal, including:
* A mortgage will be placed on the borrower’s home, and they could lose the home in the event of foreclosure.
* Interest rates and terms can vary, depending on the lender or broker.
* Borrowers should consider consulting a HUD approved credit counseling agency or a financial advisor regarding financing of their home.
* Debt consolidation can be a useful tool if the borrower does not take on additional short-term debts.
* Loan applicants do not have to accept the loan, even though they have filled out an application.
There are various legal requirements that a Florida condo developer must comply with in order to offer for sale condo units and if your developer fails to carefully follow some of these legal requirements, you may be able to terminate your contract for purchase.
For example, under the Interstate Land Sales Full Disclosure Act (”ILSFDA”) or Florida law, you may have the right to terminate the contract for your pre-construction condominium or home and receive all, or part of your deposit back. ILSFDA places certain requirements and responsibilities upon developers to make disclosures relating to the condition of real property. ILSFDA also contains anti-fraud provisions which impose civil liability to developers who make false or misleading promises. In the booming real estate market of the past decade, consumers paid large deposits for condo units only to experience delays of up to three (3) years between the signing of a contract and closing. Also many contracts for the pre-construction purchase of condo contain provisions that attempt to eliminate all your rights for the benefit of the developer, this may cause the contract to become voidable and allow you to receive your deposit back from the developer, contact us to review your pre-construction contract.
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