Florida Homeowners May Lose Their Day in Court: Don’t Be a Lone Wolf When Facing Foreclosure – Get Legal Advice

Posted By on October 11, 2011

Right now, Florida’s governor (along with Florida bankers) are moving to change Florida’s system of foreclosing – which currently happens when a lawsuit is filed in the local courthouse – to that of “nonjudicial foreclosures” where the banks won’t have the oversight by judges when they foreclose on a Florida home.  We’re monitoring this situation, and for details please refer to last week’s post.

Here’s the thing:  it’s already bad enough the way the banks’ treat homeowners now, even with Florida judges are on the job — what will happen if the courts are taken out of the process?  Easy answer, isn’t it?

Consider these two real-life stories which could be adversely affected if the law is changed – They could be quickly removed from their homes if the proposed changes are adopted

First, in Orlando, an elderly couple (he’s suffering from Parkinson’s Disease) tried to keep up with their mortgage, then they tried to make partial payments, and they tried to negotiate a modification with their lender.  No can do, apparently.  So now, these two members of the Greatest Generation are dealing with the stress of sitting in their home, month after month, waiting on the bank to send a foreclosure notice.

That’s right: they’re not making any mortgage payment now. Not getting any reaction from the bank.  They’ve told the Orlando Sentinel that they’ve come to terms with their situation, and they will wait it out till it’s eviction time. You have to ask yourself what would happen to these people if the bank didn’t have to worry about a judge overseeing a case like this?  How quickly would the bank have foreclosed upon them?

Sad state of affairs, here in the Sunshine State, right?

Second real-life situation.  Over in San Antonio, Texas, another couple are sitting in their home, where they haven’t made a mortgage payment since 2002.  That’s right: for 9 years.  Last month, they were sued in federal court by Chase — but that lawsuit is a bit different than most we hear about, because here the bank is asking the federal judge to rescind a lien release.

That’s right.  The Texas couple has a piece of paper, a formal legal document prepared on their behalf and signed long ago by a lender, that nixes the lien on their home. It’s saved them from many different foreclosure proceedings over the years, and their Texas lawyer believes it will serve them well once again, in this new suit by Chase.

What happened in Texas that didn’t happen in Florida here?  The Texas couple had a lawyer that got a lien release from their bank and filed it in the real property records.

Seems that the Texas homeowners  did a refinance in 2001 with Fleet National Bank.  Fleet used MERS (Mortgage Electronic Registration Systems, Inc.) and in no surprise to anyone now, what with all the MERS scandals, their mortgage note was lost.  The couple never received a coupon book, and could never find out where they were supposed to send their payment.   They got help and a formal release of lien on their home was filed in 2002.

Several foreclosure lawsuits were filed against them (Texas, like Florida, being a judicial foreclosure state) but that lien release held like the Hoover Dam.

Now, MERS has transferred the mortgage to Chase and Chase has sued to erase the release of lien. Aside from the fact that there may be a robosigning issue on the transfer from MERS to Chase, Chase has an even bigger problem: the statute of limitations has run out on suing the Texas homeowners.  Their lawsuit is time-barred under Texas law.

The Texas couple was smart to protect themselves under Texas law and hat’s off to the Texas lawyer who got that lien release filed for them back in 2002.  Good job.

Lesson here:  it’s very wise to have legal guidance and judicial oversight in dealing with banks these days, because things are just plain messed up.  If you are a Florida homeowner, then this is no time to be a lone wolf – find yourself a Florida real estate lawyer you can trust and hope that the proposed change to the foreclosure process doesn’t occur.

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