Do I Need an Attorney to Buy or Sell Real Estate in Florida?

Real Estate Attorney’s are required when purchasing or selling real estate in other states, but not here!

To most real estate purchasers this is the most confusing aspect of a Florida real estate transaction. Some states explicitly require that a real estate purchase or sale have an attorney representing each side. This is not the case in Florida. As you can probably imagine, not having an attorney can leave you open to many issues. In this blog entry we’ll discuss some of the most common issues encountered by potential clients – both sellers and buyers.

Out of state seller or buyer

This is the most common scenario where a real estate attorney is highly recommended. In any given market, such as Tampa or Hillsborough County, there are things that one who lives here would know and things that can be hidden from a buyer or seller of real property. Some aspects could be title insurance payment – some counties (Leon, Miami-Dade, etc.) typically have the buyer purchasing this insurance and then picking the closing agent. Hillsborough County, which includes Tampa, Riverview, and Brandon, is typically a “seller” pick county. Being familiar with what a seller should be prepared to pay for in a real estate transaction is a benefit of having an attorney competent in real estate matters.

Understanding what areas have particular problems, or what to look for, can be very helpful to a buyer. For example, some communities in Florida were ravaged by “chinese drywall,” a corrosive building material that literally destroyed copper piping in homes and caused many Floridians health issues. Some communities have had more occurrences than others. Having an attorney may help uncover some lesser known issues such as this.

New Home Buyer

I see this one more widely in reviewing sales contracts and closing documents for buyers. Most homeowners, when buying their first home, think that a construction company does not sell properties that are “blighted.” Let me be clear, I am not talking about physical defects with the construction of the home. I am talking about “title blights.” Some of these can be in the form of a non-conforming parcel: a piece of the property being built over an easement, failure by the builder to build the home pursuant to applicable lot set-offs (e.g., foundation cannot be within five feet of the lot line), or not being deeded the whole property that they thought they bought.

These issues can range from small headaches (having to get the county to approve a variance or vacate an easement) to a major legal issue (having to file a quiet title action on a home you just purchased.) More simply put – seeing the issue before closing is a much better situation to have than dealing with it after.

Knowing what the Title Report Says

As a real estate attorney, I am also a title insurance agent (full disclosure: I underwrite through Old Republic). Some of the most frustrating issues I see are individuals that buy real property and are not told what title encumberances they are taking subject to. This can be things such as mortgages, HOA liens, electric company easements, HOA declarations, etc. Knowing what these issues are, generally for the buyer, can often help inform a consumer about the perils of the piece of property they are buying.

If you are buying or selling a house in Florida, speaking with a real estate attorney may be something you want to look into.

Posted in Real Estate Attorney

Foreclosure Statute of Limitations

Foreclosure Statute of Limitations in Florida – a question asked everyday, with a difficult answer

More and more, I am asked my legal opinion about the foreclosure statute of limitations in Florida. I’ve spoken on it, speaking on behalf of borrowers in a panel of attorneys answering this precise question. I’ve helped write on it in an amicus brief, requested by the 3rd District Court of Appeals, in Deutsche Bank Trust Co. Americas v. Beauvais, et al. (hat tip to the Florida Alliance for Consumer Protection) and am closely following the pending Supreme Court decision in Bartram. It’s causing a lot of headache for homeowners – especially those that are having a second, third, or even fourth foreclosure filed against them again. This is being done at a time when many foreclosure defense attorneys are leaving the practice, and stands to only work to the detriment of home owners.

So – what’s the answer?

Unfortunately, it depends. It depends on what the Florida Supreme Court holds in Bartram, and what the 3rd DCA holds in Beauvais. This is the threshold question for a lot of home owners. At first glance, Fla. Stat. 95.11 reads fairly clear – 5 years to foreclose on a mortgage. But now, courts are dealing with distinctions between a dismissal with prejudice and without prejudice, deceleration and the terms of the mortgage and note, etc. The banks argument is simple, despite calling the whole loan due, each installment represents a different default. At this point, with over 9,000 active foreclosure cases pending in Hillsborough County alone, the bank needs every thing on their side in an effort to foreclose on properties after being beat in court. As I’ve always said – there is no such thing as a free house in foreclosure.

What am I supposed to do? Do I Wait?

Given that the future is unclear here I am urging homeowners to speak to a attorney that actively defends foreclosure lawsuits while these cases are pending in their respective appellate court. It’s not as simple as “bank waited too long to foreclose” – each missed payment is its own default. That means a running 5 year period until 5 years after the maturity date of the mortgage.

If you are defending your second, third, or fourth foreclosure there is an even larger need to have someone that is familar with the statute of limitations argument. Each default in each case matters, the time after default to filing matters, the letters you were sent leading up to your case, etc.

Posted in Foreclosure Defense, Foreclosure Statute of Limitations

REO Title Cloud – Bought Home From Bank and Now I Can’t Sell

A Title Cloud can be a problem for any homeowner or investor that purchased a home from the Bank after it foreclosed!

A recent story in the news has me pretty upset – and feeling bad for a family that was just trying to make a good deal. A title cloud cost a family a home and a whole bunch of money. Word of free advice – if you are buying property, buy title insurance! Please, I beg you. Protect your investment. For those of you reading this, thinking about buying a house from a bank after a foreclosure (a REO, or “Real Estate Owned” – a class of property owned by a lender) despite all the addendum issues.

What is a title cloud

A title cloud, or in the legal context a “cloud on title” is something that calls ones ownership of real property into dispute. It can be something such as the wrong legal description on a deed, a “wild deed” that comes to light later, an unresolved claim of lien (mechanics or HOA), or a foreclosure that did not extinguish all interests in the real property.

How are you affected

Real property owners won’t often be able to see how a title cloud affects them. It is basically summed up, in its simplest terms, in the following scenario. Buyer goes shopping for a home. Lands on a home that is listed for $150k in a neighborhood where all of the property values are significantly higher. Is told that it is “bank owned” and that it needs some work. Most people, seeing the great deal and hearing foreclosure stop there; after all, when does a foreclosure happen by a bank that is not in “first position”? The title cloud shows itself when you learn that the “bank owned” property is owned by the second mortgage holder – this means that whatever bank is in first can then foreclose on the property you just bought when you haven’t missed a payment and have no contractual relationship with them.

How Do You get Help?

Like I said – I’m upset for the family on this. I am willing to meet with everyone via a telephone conference, for free, that bought a home from the bank after a foreclosure and has a title insurance policy on their home. I will also make myself available for anyone that is thinking about, or buying, a bank owned property. At my firm, I represent clients from the open house to the court room, and its important that you understand what buying a home means. Even if it’s from a bank…

Posted in Real Estate, Title Cloud

Navient Phone Call & Debt Collection Harassment

Navient, formerly known as Sallie Mae, may be harassing borrowers through phone calls, text messages, and written correspondence

Delinquent or unpaid student loan debt is at an all time high. Despite this, there is little to nothing that a borrower can do. There are virtually no loan modifications, no reinstatements, and vast credit impacts that each borrower faces. The silver lining, if the collection efforts by loan company are extremely aggressive, is that the borrower can sue for harassing phone calls made. One of these companies that I frequently hear complaints about, from both their own borrowers and from other attorneys, is Navient.

If you are late on your student loans that are serviced by Navient, and are experiencing aggressive collection techniques, there are a variety of consumer protection statutes that protect borrower’s throughout the state and country. The primary ones are the Federal Telephone Consumer Protection Act, the Florida Consumer Collection Practices Act, and the Federal Fair Debt Collection Practices Act. These protections are limited by timing – in some instances as quickly as one year after Navient’s violation. This can include unlawful collection practices; including when a debt collector threatens you with jail for unpaid debtor or discloses your debt to a third-party. Additionally, if Navient, during its first communication with you fails to tell you that they are a debt collector and they are trying to collect a debt, a violation may accrue.

One common complaint is that the debt collector may be using automated phone call devices that target a borrower’s cellular phone and calls over three times a day. This is despite the borrower asking them to stop calling.

If you are currently delinquent on your loans with Navient, and are getting harassed by phone calls or rude service representatives, you may have a cause of action against them. If you would like to discuss your options with an attorney and have phone records and knowledge of what phone calls were placed by Navient, call my office at 813.502.6768!

Posted in fair debt collection practices act, florida consumer collection practices act

Tenant Rights in Florida Foreclosure Cases Being Protected with New Legislation

Tenant Rights in Florida Foreclosure cases are now, to some degree, being protected by the state

In a new statute, signed by the Governor just this month, titled Termination of Rental Agreement upon Foreclosure (Fla. Stat. 83.561) certain tenants are being offered a thirty (30) day grace period following the foreclosure of the property they are living in after receipt of a thirty (30) day notice which must state, summarily, that they are “hereby notified that [their] rental agreement is terminated on the date of delivery of this notice, that [their] occupancy is terminated 30 days following the date of the delivery of this notice, and that [the new owner] depends possession of the premises on a [date certain].”

This new notice requirement goes on to say that if the tenant does not vacate the premises by the specified date, the court can then be asked for an order allowing the new owner to remove the tenant and the belongings from the premises. The tenant is still obligated to pay rent during the thirty (30) day period for any amount due, and an address to pay rent to must be specified. This notice must be sent in a very specific manner, pursuant to Fla. Stat. 83.56(4).

This new law designed to protect tenant rights in Florida foreclosure cases only applies to tenants that aren’t parties to the underlying foreclosure documents, or related to them, that the rental agreement is a “bona fide” lease which was negotiated pursuant to market value, and that the rent rates are near that value.

While I do applaud the legislature for trying to protect tenants at foreclosure, and must give my colleagues at the Florida Alliance for Consumer Protection all the credit for getting this bill through the red tape, I urge tenants living in foreclosed properties or owners purchasing properties at foreclosure, to contact a licensed Florida Attorney for help navigating this brand new law.

Posted in Foreclosure Defense, Tenant Rights in Foreclosure

Chapter 7 Lien Stripping in Bankruptcy – US Supreme Court Weighs In

Chapter 7 Lien Stripping violates the bankruptcy code according to the Supreme Court decision in Bank of America v. Caulkett.

In a recent ruling, the United States Supreme Court ruled that debtors in a chapter 7 bankruptcy can no longer strip wholly unsecured mortgages (e.g., a $200,000 home with a $210,000 first mortgage and a $50,000 second mortgage)  from their real property (home or investment property) pursuant to 11 USC 506(d) if the mortgage is both secured by a lien and allowed under 11 USC 502 (referenced as ‘Chapter 7 lien stripping’).

Previously, the 11th Circuit (which governs Florida Bankruptcy Courts) was bound by its prior decisions that expanded the requirement of 506(d) where the lien was not allowed and therefore void. The implications of this ruling will affect a limited number of Chapter 7 bankruptcy petitions, due in large part to the rising values of homes and the impact this has on subordinate liens (second mortgages, HOA liens, mechanics liens).

Put simply, prior to the decision, if a Chapter 7 debtor owned property worth $100,000, but had a first mortgage of $120,000 and a second mortgage of $40,000, the debtor could “strip” or void the mortgage thereby making only the first mortgage secured. This is no longer the case and where there is an allowed secured claim, even if totally unsecured in a value sense, the lien would still then attach to the property for the statutory enforcement period pursuant to the statute of repose.

It is important for individuals closing on real property where they have stripped a lien to know of this recent change in the  law. Further, it is important for those that have closed on real property to know what what implications this may have on the marketability of their title going forward.

Posted in Bankruptcy

Ocwen Loan Admits Wrongdoing to New York Regulators – Huge Foreclosure Impact

Ocwen Loan Servicing Foreclosure Issues – Consent Judgment in New York!

During my time defending foreclosures throughout the state, a rare oddity in terms of loan modifications has always been the loan servicer known as OCWEN! From extremely rare principal reductions in loan modifications to incredibly fast returns on a loss mitigation package, Ocwen Loan Servicing had always been a pleasure to work with…until know.

Recent revelations about this servicer have really changed my view on this servicer, to the point that where I am faced with them as a loan servicer on a client’s file – I have a specially tailored (and short) set of discovery aimed at the servicer.

What am I asking for? Why am I asking for it?

Click Here to find out!

Posted in Foreclosure Defense, Know Your Servicer, Ocwen Loan Servicing

Served By Mortgage Guaranty Insurance Company in a Lawsuit

If you were just served in a deficiency lawsuit by Mortgage Guaranty Insurance Company, it is important for you to act quickly and understand who they are, and why they filed a lawsuit against you

Mortgage Guaranty Insurance Company (MGIC) is a mortgage insurance underwriter that underwrites a wide range of home loans throughout the United States. Generally, Mortgage Guaranty Insurance Company, is paid a portion of your mortgage payment on a monthly basis to pay the premium of this insurance. This insurance provided is not for your protection, it is for the BANK!

What is Mortgage Insurance?

Mortgage Insurance (“MI”) basically works as a way for the bank to get paid if you miss a payment or default on your loan. The MI Company, in this case Mortgage Guaranty Insurance Company, will write the bank a check for a given amount as directed by the agreement, oftentimes paying the bank in full on the Mortgage they wrote to a borrower. If Mortgage Guaranty Insurance Company paid out a claim, the bank could assign its right to seek a deficiency in a foreclosure action or Mortgage Guaranty Insurance Company became automatically able to attempt to collect on the deficiency.

Mortgage Guaranty Insurance Company will file a deficiency lawsuit against you to try to collect this amount.

This is why you have been served, the Mortgage Guaranty Insurance Company lawsuit is an attempt to make you, as the borrower, personally liable for any amount they could not recoup from the initial mortgage amount. This can have significant consequences on you and will often be brought up years after the initial foreclosure lawsuit was brought against you. Mortgage Guaranty Insurance Company’s lawsuit for a deficiency revolves around what they paid out and the value of the property as of the date of the foreclosure sale. Understanding what this means, and how to properly defend or settle it is extremely important.

If Mortgage Guaranty Insurance Company is Pursuing you for a deficiency, you have options!

Being served in a deficiency lawsuit can add a lot of stress to your life. Throughout the past few years, I have represented individuals throughout the state of Florida in deficiency lawsuits. There are a number of options available to you, and meeting with an experienced deficiency defense attorney can be a tremendous help. If you have just been served in a lawsuit I am offering, for a limited time, a free consultation to meet with me, either in person or on the phone, to discuss your case. You can call my office at 813.502.6768 or e-mail me to set up your FREE CONSULTATION if you have just been served. If you have a pending suit, or were served more than 20 days ago, a small fee may apply.

Posted in Deficiency Judgment, Mortgage Guaranty Insurance Company, United Guaranty Insurance Company

Appealing a Foreclosure Judgment Entered for the Bank

Appealing a Foreclosure Judgment is a very difficult task, but you may have other options.

One of the most satisfying parts of my practice is taking a case close to a final hearing, that may end very badly for my client because they were unrepresented, looking at the case in the days or weeks that I have available to me and coming up with a solution that is in my client’s best interest and something the bank would not have offered on their own.While it is not quite stopping the foreclosure process, it is satisfying to say the least. Unfortunately, I can only help very few individuals given my schedule. So today, I wanted to take a few moments to discuss something I haven’t really addressed here – appealing a foreclosure judgment and other options available after a judgment has been entered against you.

If a judge entered an order on foreclosure against you recently (within the last five days), it is time to act – QUICKLY!

A lot of what will be discussed here is time sensitive. When it comes to appeals and motions for rehearing, trial courts and appellate courts can lose jurisdiction to help you if you do not act timely. One of my favorite legal quotes has always been “The law serves the vigilant, and not those who sleep over their rights.” – Scott v. Empire Land Co., 5 F.2d 873, 877 (US SD FL, 1925). This is especially true in post-judgment proceedings. When dealing with post judgment reconsideration and appeals, there are generally two methods that I find useful at the trial court level (the court that entered the foreclosure judgment against you) – a motion for rehearing or a motion to vacate (or set aside judgment). An appeal is basically a suit outside of the initial foreclosure suit and deals with a wholly different panel of judges. It is important to note, using any of these motions, to vacate order or for reahearing, at the trial court level is typically a long shot. You are essentially asking a sitting judge to undo either the complete foreclosure judgment or a portion of what he or she entered. Absent some clear evidence, this may be, in some counties, an impossible task.

Motion for Rehearing in Foreclosure Cases

A motion for rehearing is extremely time sensitive – generally you get fifteen (15) days after the date of the filing of the order to request this in a non-jury scenario (e.g., Fannie Mae/Freddie Mac foreclosure cases). Each judge, when faced with a motion to rehear a foreclosure judgment, gets to make their own call on this motion – they may even do this without an argument by the parties. Meeting with a foreclosure defense attorney, and retaining one if you so choose, should be your priority if you have left the hearing thinking the bank’s attorney won because you were not represented or that all of the facts and issues were not brought to the attention of the judge. Whether it is proper to request a rehearing is extremely fact specific, will vary on nearly every case, and will require prompt filings of the required motions in said case. If you schedule a consultation with a foreclosure attorney, bring them all the documents you have regarding your case. Explain what happened at the hearing and what has occurred in the suit. Every fact counts here and it may be what the judge relies on in making a ruling on a well pled motion.

Generally, I find that these motions are ruled on without a hearing, and in some counties are not even looked at by the judge that heard the case. It is important to state succinctly why you are requesting the rehearing, and to provide as persuasive of an argument as possible that your hearing requires a second chance.

Filing a Foreclosure Appeal in the Florida District Court of Appeals

Again, an extremely time sensitive requirement. A appeal, foreclosure or not, must generally be filed within thirty (30) days of the rendering of the trial courts order. It is also important to understand that an issue must properly be preserved for an appeal. Unfortunately, many cases that were not litigated by attorney’s familiar with the issues in foreclosure cases will be preserved, if at all, very poorly for an appeal. I cannot stress enough how important it is, if you are thinking of appealing a foreclosure judgment, to bring everything involved in your case – pleadings, motions, notes, etc. – to the attorneys attention as soon as possible. The Florida courts are extremely divided on some issues (e.g., Notice of Acceleration requirements), and interpretation of certain facts in your case can vary based on these nuances. Also, understanding the standard of review is important. If you are appealing a summary foreclosure judgment, the appellate court will review the trial court’s ruling de novo, or “a new”; plainly put, this allows the record, and the motions below to, in effect, be argued again to the district court of appeal. This is why meeting with a foreclosure defense attorney is important and should be done as soon as possible after judgment has been rendered.

Motion to Vacate (or Set Aside) Foreclosure Judgment

This is actually the most common relief from a foreclosure judgment I see filed. It is not because it is the most successful option, but because it does not require the strict time limits as a motion for rehearing or a notice of appeal and can be filed as a last ditch effort even when the previous time periods have expired. While it is not appealing a foreclosure judgment per se it still is an option for home owners that have had a foreclosure judgment rendered against them. Generally, if the motion is based on,, mistake, excusable neglect, newly discovered evidence, fraud, or some other grounds, it must be brought before the trial court within a year of the judgment date.

Act Now If you want to appeal the foreclosure judgment against you. There may still be other options.

Again, I cannot stress enough how important time is in these scenarios. If you would like to discuss your case Call my office at 813-502-6768, or e-mail me to schedule a consultation. If you do not want to appeal, but want to avoid possible collections, bankruptcy may be an option as well.

Posted in Appeals, Hillsborough County Foreclosure, Post Judgment Collection, Post-Judgment Options

FHA Mortgage Foreclosure Seeing Loss Mitigation Challenge

FHA mortgage foreclosure lawsuits could be affected by a Ohio based lawsuit

In a recent court filing, many individuals facing FHA mortgage foreclosure are fighting back. As you may be aware, an FHA Mortgage, and a resulting FHA Mortgage Foreclosure, is a very small subset of loans that were backed by the federal government, namely the Department of Housing and Urban Development (HUD). These loans require specialized rules regarding pre-foreclosure actions taken by the mortgagee (the bank or holder of the Note) before the bank can even file a lawsuit. In fact, many of the FHA Notes will state, flat out, that non-compliance with these specialized provisions will prevent acceleration of the debt and creates defenses to foreclosures.

What are the issues with FHA mortgage foreclosures?

FHA loans require that prior to the fourth month of missed payments that a borrower is reviewed for loss mitigation on a monthly basis. This can mean loan modification  (recasting of a mortgage) or forbearance, short sale (pre-foreclosure sales), deed in lieu, or another workout option that is available to the borrower by the bank. It is important to note that this review is supposed to be monthly, and determine what option may be appropriate for the borrower. This is because other FHA servicing requirements say that the borrower and mortgage company must have a face-to-face counseling. This is what, in theory, helps the FHA mortgagee understand what option would be best for the borrower in a given situation in an attempt to avoid the FHA foreclosure.

Can this defeat a foreclosure suit?

At times, this can lead to a granting of a summary judgment from the defense side or can defeat a motion for summary judgment from the bank. Knowing what is required from an FHA Mortgage – in the foreclosure action – can sometimes be extremely valuable to your case. It is important, if your mortgage is an FHA mortgage, that you bring this fact to your attorney’s attention. If you are just meeting with an attorney at a consultation, you should mention these facts as well.

If you are facing an FHA Foreclosure Action, my office is available to speak to you regarding your options. If you would like to speak with an attorney, please do not hesitate to contact me at 813.502.6768.

Posted in Mortgage Foreclosure - FHA

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Attorney Bryant Dunivan's offices are centrally located in Tampa, FL and Valrico, FL. From these locations, Mr. Dunivan represents clients facing Foreclosure, Chapter 7 and 13 Bankruptcy, Consumer Protection, and Real Estate Law. This includes the entire state of Florida - including Hillsborough, Pasco, Pinellas, Osceola, Seminole, Orange, Lee, and Collier counties. Mr. Dunivan represents clients throughout the state of Florida.


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