Reversal of Palm Beach County Foreclosure Action due to Counterclaim and Affirmative Defenses

The real estate boom is chock full of stories of borrowers alleging fraud on he part of their mortgage lender.  Indeed, there have been many substantiated cases of predatory lending during this time frame which has made the fraud argument more common.  Predatory lending is, essentially, a lender seeking out prospective borrowers with little means and giving them loans with extremely low introductory rates which will later adjust to a level the borrower could not conceivably afford. 

Such behavior was egregious and, accordingly, received considerable publicity.  The practice and other similarly deceptive behavior on the part of lenders and their agents has been commonly grouped under the category of "mortgage fraud.".

Well, it's official, the newest celebrity divorce is on.  Maria Shriver has reportedly hired a divorce lawyer and, upon close review of the relevant birth certificates, it appears that Arnold Schwarzenegger's love child and his youngest child with Maria were born less than a week apart.  Although many news outlets will report for some time, here is a link to the latest ABC News story.

So, what can we learn from the celebrities about divorce? 

For one, it can get ugly.  As a practicing South Florida Divorce Attorney, I see the drama unfold and play an affirmative role in bringing normalcy and justice back to my client's lives.  It's the type of event in life that the most bizzare things may occur, but the rest of the world is generally not privy to the details.  When celebrities go through the process, unless they work in step to the contrary, the process can be very public.  I am a Florida Attorney and am not licensed in California, so my legal opinion is based only on Florida law.

Process server issues are more common than you think. If you or someone you know is facing foreclosure and have been improperly served, there may be cause to set aside whatever relief the lender was awarded.

As the investigation into Florida's foreclosure crisis continues, another problem in many of these cases has come to light - improper service of process. According to a recent Sun Sentinel article "some individuals appear to have violated the rules of process serving: the personal delivery of legal papers, required by law, notifying people that a foreclosure action has been filed against them."

"Recent Florida foreclosure defense cases claim property owners never received a court summons even though they still were living in their home, or that servers never took required steps to find them. Some claim the servers lied, filing false court affidavits about to whom or when they delivered the papers" according to the article.

Administrative Order No. 3.308-6/10 has been passed by the Fifteenth Judicial Circuit of Palm Beach County and is effective as of July 12, 2010. Pursuant to this order, all residential mortgage foreclosure actions filed in the Fifteenth Judicial Circuit against a homestead residence shall be referred to the RMFM Program (Residential Mortgage Foreclosure Mediation Program.) The RMFM Program will be managed by the Palm Beach CountyBar Association. For purposes of this Order "Homestead Residence" is defined as a residential property for which a homestead real estate tax exemption was granted according to the certified rolls of the last assessment by the county property appraiser prior to filing of the suit to foreclose the mortgage.

In actions to foreclose a mortgage on a homestead residence, the plaintiff and borrower shall attend at least one mediation session, unless the plaintiff and borrower agree in writing not to participate in the RMFM Program or the Program Manager files a notice of borrower nonparticipation.

At the discretion of the presiding judge, this Order may apply to homestead residential foreclosure actions filed prior to the effective date of the order, for residences which are not homestead residences, or for any other residential foreclosure action the presiding judge deems appropriate.