Tampa Foreclosure Defense Attorney

We understand how stressful it is to contemplate losing your home in a foreclosure. Additionally, the banks have aggressive attorneys on their side, so it is important to speak with a competent attorney as soon as possible to protect your interests. Our full-service Tampa foreclosure defense attorneys represent you at trial, should the case proceed that far, or exploring one of the many alternative options. We will work with you and explain all of the available foreclosure alternatives so that you can make the best decision for your family and situation. These alternatives include but are not limited to the following:

  • A short sale of the home
  • A deed in lieu of foreclosure, where you would convey your interest in the property back to the mortgage-holder
  • Assistance through one of the programs provided by the Federal Government, including Making Home Affordable, Home Affordable Modification Program, Home Affordable Refinance Program, FHA Short Refinance, and Home Affordable Foreclosure Alternatives
  • An agreement with the bank to restructure or modify the terms of the mortgage
  • What you need to know about Foreclosure

Deficiency Judgments In A Recourse State?  Yes, They Can

The specter that has haunted foreclosed homeowners in Florida for the past few years has come to materialize this summer.  You may have heard that thousands of former Florida homeowners have recently been sued by attorneys representing a Texas-based company called Dyck-O’Neal.  In July and August I received numerous telephone calls from folks who had lost their homes to foreclosure in 2009-2010. These individuals had been served with a summons and complaint, seeking a deficiency judgment.   With Florida being a recourse state, unfortunately these lawsuits are very real, and very dangerous.

The deficiency claim is based upon the fact that the house went to a foreclosure auction, and sold for, say $100,000 to keep it simple.  The foreclosure judgment, which includes the unpaid principal, interest, late fees, attorneys fees and costs is $250,000.  That leaves a balance of $150,000 for which the defaulting borrower might be liable.

Until recently, civil complaints for deficiency judgments were filed rarely.  Most of my deficiency cases involved small local banks or private investor note-holders.  But this new round of cases involves mortgages that were backed by Fannie Mae.

There are several strong legal defenses to these lawsuits.  As my firm is currently handling seven of these cases in Hillsborough and Pinellas counties, I won’t get too specific because you never know who is reading this newsletter.  However, I will say that the worst thing that a defendant can do is to ignore the lawsuit.  Although there are certainly exceptions, the majority of the defendants in these cases did very little to avoid the foreclosure in the first place.  The earlier a homeowner seeks legal help – before or after defaulting in the first place – the more legal options there are.  Those pre-foreclosure legal options might include a deed-in-lieu of foreclosure, short sale, loan modification, reinstatement or forbearance.

Of course post-foreclosure it’s too late to “unring the bell.”  But the reason that I raise this failure to act issue is not to cast aspersion onto the victims of foreclosure.   It has been speculated that the Dyck-O’Neal strategy is to file bulk lawsuits in the hope that a large majority of the defendants will ignore the complaint for deficiency judgment, just as they did the initial foreclosure complaint.  When this occurs, the former homeowner now gets a default judgment for money damages, which not only becomes a new “big ding” on his credit but also exposes him to wage and asset garnishment and other collection attempts.

What is the good news here?  Well, as a general rule, the deficiency is dischargeable in a Chapter 7 bankruptcy as an unsecured debt.  But not everyone will qualify for a Chapter 7 bankruptcy.  Also, some people might have non-exempt assets or other reasons why they need to avoid bankruptcy.  Hiring an experienced attorney to fight the civil lawsuit might make the difference between owning $150,000, or not.

Samantha L. Dammer is a Florida attorney.  Ms. Dammer is a member of the Tampa Bay Bankruptcy Bar Association and the Hillsborough County Bar Association and she has practiced law since 1998 (admitted to Florida Bar 2007).  Ms. Dammer is admitted to practice before the United States Supreme Court as well as several lower state and federal courts.  The information and materials in this article are provided for general informational purposes only and are not intended to be legal advice.  No attorney-client relationship is formed.  Nothing in this article is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction.  We are considered a debt relief agency and we may recommend bankruptcy as a solution to financial problems.  The hiring of a lawyer is an important decision and should not be based solely on advertising.  Call or write for a list of our qualifications.  Our office is located at 620 E. Twiggs Street, Suite 110, Tampa FL  33602.

What You Need To Know About Tampa Foreclosures

The thought of losing a home or investment property to foreclosure can be a terrifying process. It may seem as though the mortgage bank is calling all the shots, and that you have no control. If there is more than one property involved, or if there are other financial issues such as credit card debt, loss of employment, or health issues, the situation can easily be emotionally overwhelming. Fortunately, we have laws that provide rights to homeowners that are going through a foreclosure process. Aggressive, timely representation can make all the difference in protecting your rights, and giving you the time necessary to solve the problem. Although this is changing, most banks will not negotiate a short sale, deed in lieu, or other loss mitigation workout program with a property owner unless he or she is behind on the mortgage payments. What this means is that if you are unable to make your mortgage payments during the due date and any grace period, you will attract your bank’s attention and they may be more inclined to work with you. This is by no means to be construed as advice to skip your mortgage payments, as it is always better to be proactive and call your lender before you get behind on payments.

Once you are behind on your payments, you will receive letters and phone calls from your lender, urging you to pay or commence a workout. They will provide many solutions, and will usually be friendly. Keep in mind that they are interested in protecting themselves and serving their interests, not yours — and all information that you provide to them may be used in the collection of a debt. It is usually best to seek legal advice at this point.

When you are approximately three months behind in payments, your lender’s attorneys will file a foreclosure complaint against you, and you will be personally served with the summons and lawsuit. This is the most critical time of the foreclosure process. You have only 20 days from the day you are served to file a response or otherwise motion the Court for relief. Weekends and holidays do count. It is urgent that you seek counsel at this point, because if you do not take action during the 20 days, you may lose your rights to defend against the suit.

Keep in mind that with the number of foreclosure cases filed on a daily basis in Florida, it is easy for the banks and the bank’s attorneys to make errors in the paperwork, which can provide a defense. One of the most common trends that I see on a daily basis is that the bank will claim to have “lost” or “misplaced” your original mortgage Note that you signed when you bought the house. This may sound trivial, but in a legal sense it is a serious matter, and calls for closer scrutiny of your legal case. Oftentimes there are other errors in the foreclosure complaint that provide me the ability to defend my clients and obtain both time and leverage so that we can solve the underlying issues.

Your credit rating will be affected once you are 30 days late on the mortgage. There are many solutions to the foreclosure problem, but unfortunately if you are already late on your payments, none of these solutions will result in an instant credit fix. One of the primary goals of a short sale is to avoid permanent, irreversible credit damage such as comes from a full-blown foreclosure. A foreclosure will appear on your credit report for seven years. Some ways to avoid a foreclosure are a short sale with the lender or a deed in lieu of foreclosure. It is important to understand that while Chapter 7 bankruptcy may provide a more holistic solution to your financial picture, it does not in itself “make the foreclosure go away.” The foreclosure action will be “stayed” or suspended once you file the bankruptcy action, and usually throughout the bankruptcy proceeding although there are exceptions. However, once the bankruptcy is discharged, the lenders will commence the foreclosure suit. While typically the discharge will absolve you of any financial responsibility with regard to a deficiency judgment, if the foreclosure action itself is not resolved you will have both a bankruptcy and a foreclosure on your credit report! To avoid this happening, a skilled bankruptcy attorney with real estate experience will work within the system for you to continue the short sale or deed in lieu process with the lender.

Many of my clients have multiple properties, and their concerns center on what will happen to their other assets while they are losing one or more of their investment properties. When you have this much at stake, you will want every resource possible at your disposal. A short sale might very well be the best solution for you. We take a team approach — skillful, experienced negotiators take on your lenders while our licensed real estate agent partners aggressively market the property to bring in the buyers. You can’t have a short sale without a buyer. All the while, I monitor the foreclosure action and stay in contact with the bank’s attorneys so that there are no surprises. We hope that the short sale works, but if not, keep in mind there is always a Plan B with us.

There are many “scams” in Florida right now, and predators taking advantage of people losing their homes to foreclosure. I would urge you to seek legal counsel before engaging any unlicensed “short sale expert” or “foreclosure consultant” with regard to your problem. Some of these people pose as “investors” and they will claim to want to “buy your house for cash.” What they are usually trying to do is to tie up your property with an option or assignable contract while they try to find a buyer. Ask for proof of funds from anyone who claims that they can buy your house for cash. Keep in mind that most lenders will require that a property be “active” on the Multiple Listing Service for a certain amount of time prior to accepting a short sale, or a deed in lieu. So exercise caution with anyone who claims to be able to short sale your property if they are not an actively licensed real estate agent.

I am happy to answer any questions that you may have about the foreclosure process or to discuss your personal situation with you. Please call my office at (813) 288-0303 to arrange for an initial no-cost consultation.

We are available to represent clients in the following matters throughout Florida:

  • Full foreclosure defense
  • Real Estate litigation
  • Mortgage fraud claims
  • Bankruptcy – Chapter 7 and 13
  • Real Estate transactions
  • Short Sale Negotiations
  • Deed in Lieu of Foreclosure

This is not to be construed as legal advice. Consult an attorney for particulars as to your individual situation for the best advice. The hiring of an attorney is an important decision and should not be made solely upon advertising. Call or write for a free list of qualifications and experience. We are a debt relief agency and may recommend bankruptcy as one of several legal options. Office in Tampa. copyright 2008 Samantha L. Dammer Esq. all rights reserved.

Tampa Bankruptcy & Foreclosure Defense

Tampa Law Advocates, P.A. assists clients throughout the Tampa Bay Area and Florida with individual and business bankruptcies, bankruptcy alternatives, and foreclosure defense matters.

We understand that it is a difficult time for you and want to help you avoid harassment from creditors. Our goal is to work with you to explore all of the available options so that you can make the best, most informed decision for your situation. To discuss your case with us and learn how we can assist you with your financial problems, we invite you to contact us for an initial consultation.

Bankruptcy

For many people, bankruptcy is the best option to obtain a fresh financial start. We provide assistance with the following most common types of bankruptcy: Chapter 7, which is the most common and appropriate type of bankruptcy for those individuals and businesses facing extreme debts, particularly unsecured debts such as credit cards and medical bills; Chapter 11 business reorganizations; and Chapter 13 bankruptcies, which allow individuals to pay back their debts over a period of three to five years.

Bankruptcy Alternatives

While bankruptcy is appropriate for many people, it is not appropriate for everyone and we believe it is important to consider all of the available alternatives before making a final decision. It does have a long-lasting impact on your finances and in many cases can be avoided.

Sometimes, creditors are willing to work with you to modify the monthly payments, restructure the loan, or settle the debt for a lesser amount. In other cases, a deed in lieu of foreclosure or short sale is appropriate and can avoid bankruptcy. We utilize our knowledge of all types of bankruptcy and the available alternatives to work with you, examine your individual situation, and help you take the best course of action for your finances.

Foreclosure Defense

We understand how stressful it is to contemplate losing your home in a foreclosure. Additionally, the banks have aggressive Tampa foreclosure defense lawyers on their side, so it is important to speak with a competent foreclosure lawyer as soon as possible to protect your interests. Our full-service foreclosure defense practice includes representing you at trial, should the case proceed that far, or exploring one of the many alternative options. We will work with you and explain all of the available foreclosure alternatives so that you can make the best decision for your family and situation. These alternatives include but are not limited to the following:

  • A short sale of the home
  • A deed in lieu of foreclosure, where you would convey your interest in the property back to the mortgage-holder
  • Assistance through one of the programs provided by the Federal Government, including Making Home Affordable, Home Affordable Modification Program, Home Affordable Refinance Program, FHA Short Refinance, and Home Affordable Foreclosure Alternatives
  • An agreement with the bank to restructure or modify the terms of the mortgage

How Does A Lawyer Determines The “Best” Strategy For A Financial Struggling Client?

When a person is faced with financial difficulties, it can be a very scary thing.  Someone faced with the thought of losing his home or business will usually, if he is not in denial, seek advice from a professional in order to outline the best strategy.  What is interesting is that there are many possible solutions to each legal problem.  When I first meet with a new client about a problem, I will usually offer a “Plan A” preferred course of action, and at least one back-up plan if we do not at first succeed.  What is even more interesting, and the subject of this article, is that a solid legal strategy for one client, even if the facts are similar, might not be a good “Plan A” for a different client.

Here’s an example of what I’m talking about.  Let’s say George owes more on an investment property than it is worth, and he’s about to miss his first mortgage payment.  He has equity in his home and wants to keep it.  He makes a good salary as a mobile telephone salesman, but he can no longer afford the investment property.  The only other assets that he has besides the equity in his home are his modest retirement account, and some minor personal property items.  Up to now, his credit score has been in the low 800 range.  This is not George’s first time in financial distress.  He lost his business fifteen years ago due to the stock market crash.

George’s neighbor, Bob, is in the exact same situation except that Bob makes a little bit more money through his Air Force position, which requires government clearance.  Also, Bob’s wife is very stressed about the whole issue with the investment property because her name is also on the loan, and she has several health issues.  They have never been in any sort of financial trouble before.

George comes to see me at 10:00 a.m., and my appointment with Bob is at 11:00 a.m.  Here is an idea of how each initial consultation will go.

First of all, I would encourage each client to tell his story in his own words while I listen carefully.  I can really learn a lot in the first two minutes of the meeting.  Is he nervous or stressed?   Does the financial situation embarrass him, or is he in denial?  Is he cavalier about the impact to his credit, and merely wanting me to use my expertise to protect his other assets?

George is dressed well, and presents his situation succinctly.  He has done some research online about foreclosure and Florida asset protection.   During the meeting he provides me with a neatly printed list of income and expenses, as well as his original mortgage documents.  For George, the decision on what to do with the investment property is strictly dollars and cents.

Bob comes in with his wife, and they are very nervous.  They do not know what questions they should be asking, and I need to prompt them gently to learn what’s going on in their financial lives.

For a client with an upside-down investment property that is about to go into default, the possible legal solutions are pretty objective.  During the meeting, I will go over each possible option:

  1. Let the property fall behind, and when served with foreclosure we will fight the litigation.
  2. Work with the bank to modify the loan.
  3. Short-sell the property right now.  This is where the bank accepts a lesser payoff on the mortgage.
  4. Give the property back to the bank through a deed in lieu of foreclosure.  This usually only works after a short sale has been attempted, and failed.
  5. If the client does not make too much money, file a Chapter 7 bankruptcy.  Surrender the house in the bankruptcy, and in addition #2 or #3 will be required to make it actually “go away.”
  6. If the client cannot file a Chapter 7 bankruptcy because of income, we can consider a Chapter 13 repayment bankruptcy.  This might also provide an opportunity to mediate with the bank and lower the payments through a loan modification.
  7. Stay current on the property and just deal with the fact that it’s upside-down.  Rent it out and cover the shortfall until the real estate market improves and there is equity in it again.
  8. Just walk away from the whole thing.  Ignore letters and phone calls, and eventually the foreclosure lawsuit when it comes.  A default judgment will be entered, and there could be a deficiency sought.

So we have two clients, and eight possible solutions.  Let’s stay that they each make $40,000 and they qualify for the means test.  Their assets are all exempt from creditors.  This would eliminate solution #6 because there would probably be little reason to file a Chapter 13 bankruptcy – at least not now as a Plan A.

Here are some considerations that I would take into account to determine the best individual course of action for George and Bob.

We will consider “What is in the client’s best financial interest short term?  Long term?”  Clearly if I have a client that’s about to fall behind on a mortgage, we need an immediate short terms strategy.  A creditor does not report negatively to the bureaus until the 30-day late, so we have time to save his credit if that is important.

If the client’s don’t have any other debt besides the mortgage on the investment property, I will usually eliminate #5 as an option.  We are not a bankruptcy mill.  If there is an alternative to filing a Chapter 7, that will always be preferred if there is only one debt involved.  The bankruptcy may be an option down the road if the Plan A does not work.

The #7 “just hang in there” option will always be discussed at length.  We will look at the client’s budget, and rental history of the property.  Does it need repairs?  Are the taxes and HOA assessments current?  What is the realistic likelihood that the client can hold onto the property for a few more years without exhausting his retirement or savings accounts?  Unfortunately, if they have missed their mortgage payment and made an appointment to see me, they usually have already determined that it’s not feasible to hang on.

George has more options than Bob.  With Bob’s government clearance, a late mortgage can have disastrous implications.  Options #1 and #8 will be off the table for Bob.  This is because with a government clearance, ignoring the issue or prolonging a foreclosure case might not be looked upon favorably.  He needs to do something about this, quickly. A short sale or deed in lieu would still be an option for Bob.  These options might be better than a loan modification, which does not change the fact that the property is upside-down.  In a time period of three or four months to complete a short sale or deed in lieu, the problem can be in Bob’s past.

“What is the client’s emotional need?   Is prompt closure important?  Who else is involved in this (i.e., spouse, employer)” George has been through this sort of thing before with his failed business.  He might be able to handle collection calls better than Bob’s wife.  She has health issues that could be further aggravated by a drawn-out legal process.  With no government clearance or other similar considerations, George may choose Options #1 or #8 – either of which would allow him to save money by collecting rent and not paying the mortgage for perhaps years.  A bankruptcy filing the day before a foreclosure auction would keep George in control of the property for even longer.   But to offer a strategy like that to Bob would be ridiculous.  Bob needs more hand-holding and predictability in order to protect his employment and wife’s health.

In conclusion, what have we learned?

  1. A good lawyer will provide advice based upon the client’s best interest – legally, financially, and holistically.  This advice should include a short-term and long-term strategy.
  2. There are usually at least two possible solutions, if not more.  There should be a Plan A, and then at least one back-up in case things do not go according to plan.
  3. The client should never be afraid to get a second opinion from a different lawyer.  I warmly welcome follow-up questions from client prospects after they have spoken to other lawyers about their case.

Questions?  Feel free to call Tampa Law Advocates for a no-cost initial consultation.  We will take a holistic approach to your unique legal and financial situation, let our experienced Tampa foreclosure defense attorneys help you.

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