A guarantee to pay a mortgage if a debtor defaults in paying it is the same as any other contract, enforcing it requires proving that the person that you want to hold responsible is liable.

Interested in knowing your rights and obligations in a property law proceeding? Schedule a consultation and you'll be able to meet with a Palm Beach Foreclosure Attorney. To do so, just call our office at (561)472-0919 or complete and submit a Consultation Request form to the right of your screen and we'll follow up with you.

Grove One Realty and others challenging a foreclosure judgment brought the matter of Grove One Realty, LLC v. Ocean Bank before the Florida 3rd DCA (appeals court.) The appeals court issued its decision on November 30, 2011.

If you did not receive full disclosure of the basic terms of your loan when you signed it, you may have a Truth-in-Lending Act (TILA) affirmative defense.  

TILA was originally Title 1 of the Consumer Credit Protection Act and has been around since the late 1960s.  Subpart E of the act pertains to mortgage transactions and requires lenders to disclose the basic terms of your loan in a uniform disclosure document.  

Although a TILA affirmative defense may be available to you, it's complicated and you should speak with an attorney prior to asserting it.  

Not after the time for rehearing has expired.  This was discussed in the 1st DCA case of HSBC vs. Reed issued on November 16, 2011.  In this case, the Reeds motioned the court for mediation on June 7, 2010.  Unfortunately for the Reeds, at the time they motioned the court, there was pending a motion for summary judgment.  More unfortunate, a hearing on HSBC's motion for summary judgment was set to occur 2 days later. 

The trial court clearly found itself conflicted.  The court system is overworked and underfunded. And, there is clear policy established to reduce this burden by utilizing mediation as an alternative dispute resolution forum.  Further, in large part a negotiated settlement is often better for all parties than is foreclosure final judgment.  

Here, unfortunately, the court made an error says the 1st DCA.  Twenty days after issuing a final judgment in favor of HSBC, the court issued enforcing the parties mediated settlement agreement. HSBC appeals, asserting the court erred in finding the settlement agreement enforceable.

Foreclosure cases are by far the most prevalent in our civil court system today.  Although underutilized, the alternative dispute resolution method of mediation is an excellent means of resolving these cases.  The reasoning is logical, although most borrower/defendants don't have enough knowledge of resolution options to clearly understand their leverage. 

There are a handful of methods of settling a mortgage foreclosure case.  (We assist homeowners with all of these approaches.)  They are as follows:

The legal education that courtroom dramas provides includes showing that the individual or business that is seeking a remedy must present adequate proof of entitlement to that remedy. An aspect of this in foreclosure proceedings is that the creditor must show that it holds the note on which a requested foreclosure is based.

Interested in knowing your rights and obligations in a foreclosure proceeding?  Schedule a consultation and you'll meet with a Palm Beach Gardens Foreclosure Attorney.  To do so, just call our office at (561)472-0919 or complete a Consultation Request Form.

The debtor challenging the alleged creditor’s request for a judgment without a trial in the foreclosure proceeding in Feltus v. U.S. Bank National Association brought this controversy before the Florida 2d DCA (appeals court). The appeals court issued its decision on October 19, 2011.

What Standards Apply to Proving a Creditor Holds a Mortgage Subject to Foreclosure?

A common sense requirement of foreclosing on a mortgage is proving that you hold the mortgage for which you are seeking a foreclosure.  This is simply for the reason that any court proceeding requires that you hold the legal interest that you are seeking to enforce.

Interested in knowing your rights and obligations in a foreclosure proceeding? Schedule a consultation and you'll meet with a Palm Beach Gardens  Foreclosure Attorney.   To do so, just call our office at (561)472-0919 or click "Foreclosure Attorney Consultation" and complete a consultation request form.

A foreclosure proceeding, or any other legal matter, can be less cut-and-dry than many people believe.  Everyone with a stake in the matter is entitled to an opportunity for a full and meaningful opportunity to present his or her case. This may require certain accommodations if a property owner or other person with physical and/or mental ailments lacks a competent representative to protect his or her rights.

Interested in knowing your rights and obligations in a foreclosure proceeding?  Interested in knowing what your options?  Schedule a consultation and you'll meet with a Palm Beach Gardens Foreclosure Attorney.  To do so, just call our office at (561)472-0919 or click on  "Palm Beach Gardens Foreclosure Attorney" and complete a contact form.

The debtor challenging a trial court’s judgment of foreclosure and denial of any relief from that decision brought the matter of Paul v. Wells Fargo Bank before the Florida 2d DCA (appeals court). 

The general requirement that a bank or other creditor must meet when providing a property owner or other debtor of an intent to foreclose on a mortgage or other debt is that that notice must be reasonably likely to provide that debtor of the intent to foreclose. This usually requires mailing or hand-delivering that notice and relying on publication in a newspaper or other form of “constructive service” only if a diligent effort at “personal service” failed.

Interested in knowing your rights and obligations in a foreclosure proceeding?  Schedule a consultation and you'll be able to meet with a Palm Beach Property Law Attorney.  To do so, just call our office at (561)472-0919 or click on  "Palm Beach Family Law Attorney Contact Form" and complete a contact form.

A property owner’s challenge to the manner in which the bank provided notice of its intent to foreclose on a mortgage on the property owner’s building prompted the property owner to ask in Parker v. LaSalle Bank National Association that the Florida 4th DCA (appeals court), which covers Palm Beach County, review the trial court’s approval of the means by which the bank provided that notice.

Martin County Foreclosure Case Affirmed where homeowner alleged a fraudulent endorsement of note and requests reconsideration.

Many in foreclosure actions erroneously believe if there has been some mishandling of the promissory note by the lender, the lender will not recover.  Is is largely incorrect.  Clients often bring this issue up in the initial consultation.  They have heard it from friends, family, and hairdressers and they have come to an attorney to hopefully confirm the rumor.  Unfortunately, losing the promissory note is not a bar to recovery.  The  case provided below is recent and out of the 4th DCA, which controls in Palm Beach County and Broward County amongst others.

If you found this blog trying to find more information on how the note plays into your case, please continue reading so I can provide a brief but good basic education.

Before we get into this mortgage foreclosure case out of the 4th DCA, let's review the basics.  Summary judgment is a very familiar event to most Floridians who have been the defendant in a foreclosure action.  That's becuase summary judgment is appropriate when there is no material issue of fact.  That is only the case when there are no facts in dispute necessary for the court to grant the lender the relief they seek.  If there were facts in dispute, then summary judgment would not be appropriate and the case would proceed on to trial.

For example.  Say the lender alleges in its foreclosure complaint that you missed ten monthly payments.  You, on the otherhand, dispute that contention.  You have reviewed your bank statements and have concluded that you only missed two payments.  They say you owe them $22,000, inclusive of all fees and penalties associated with ten months of default.  You say you only owe $3,800.  We have a material issue of fact.  If you demand a jury trial, then a jury will determine the facts.  If not, the judge will determine the facts.  Either way, they'll be determined based on the presentation of evidence to the finder of fact, accompanied with the attorneys and parties argument.  But clearly, summary judgment wouldn't be appropriate.

So now we move onto this recent case out of Broward County.  Remember, it's the 4th DCA so it's controlling over several counties including Palm Beach County.  Here in the case of Kaminik v. Countrywide, the lender, as in all of these cases, filed its affidavit of indebtness and affidavit of attorneys fees.  In each, the lender stated the amount due and owing.