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With the ‘zombie foreclosures’ still lingering, at this point let’s call it, The American Horror Story if you will; but, it seems some Florida courts have finally begun to apply the rules of law, civil procedure and evidence in foreclosure cases. Stopping the “trick -the-homeowner and treat-the-bank” system of procedure and evidence that have haunted Florida homeowners for nearly a decade; finally, the court system ‘gets it.’ And, it appears there is a growing trend of foreclosure cases being involuntarily dismissed by judges as the freak show finally winds down.
In order for a bank to foreclose on a homeowner, it must prove standing to collect on the subject Note and Mortgage. A bank (or servicer) has standing to foreclose if they can prove that they are the “holder in due course” of the note and mortgage. In the past, banks have desperately attempted to prove standing to collect on countless mortgages and notes that have been bundled, transferred, traded, and sold to numerous different banks, servicers, and entities of the like. These efforts often times included the procuring of forged assignments and other documents in order to prove standing to bring suit on notes and mortgages. After a slap on the wrist from the attorney general in 2010 for their exposed fraud on the court, the banks then turned to unqualified witnesses to attempt to establish standing.
In thousands of foreclosure cases across the state, banks are producing witnesses to help prove their cases. In theory these witnesses are supposed to testify and lay the proper foundation for the admittance of evidence that is imperative for each individual foreclosure case across the state. Each witness should have particular knowledge about whether the evidence (various documents and system entries) presented by the bank was made at the time of the event; by a person with knowledge; kept in the ordinary course of business; and done as a regular business practice. If the witness does not meet the qualifications set out in Florida’s Evidence Code, then they are deemed unqualified and the bank’s evidence dies.
Problems arise when a homeowner who creates a note and mortgage with Bank A (which is then sold to Bank B, then assigned to Bank C, who in-turn sells it to Bank D) is foreclosed upon by Bank E. How is Bank E to prove standing to foreclose when they don’t have all the required documentation?
Without going into boring detail, the bank will produce a robo-witness (or for festive purposes, a “Zombie Witness”) from their loan servicing department to testify that at every step along the way each bank or servicer met the requirements for handling the loan and transferring or selling it to others. It doesn’t take a whole lot of common sense to see that a witness employed by Bank E does not have the requisite knowledge or foundation to testify about the happenings in Bank A, B, C, & D.
Until recently, foreclosure defense attorneys had been working rigorously and zealously to prove the banks’ witnesses as unqualified to testify at trial – only to have judges blatantly overlook the rules of the court and allow robo-witnesses to validate the banks’ case.
This past month, several appellate courts across the state have changed their tune, realized their mistakes, and have begun to find banks’ witnesses to be unqualified to testify about vital documents to the case. As a result, there seems to be a growing trend of foreclosure cases being involuntarily dismissed by judges. If the trend continues, we may finally see the double-standard in foreclosure courts come crumbling down, ending the “trick-and-treat” era.
In The Trenches,
The American Horror Story winds down in Florida as cases become involuntarily dismissed by judges - See more at: http://southfloridalawblog.com/fthe-american-horror-story-winds-down-in-florida-as-cases-become-involuntarily-dismissed-by-judges/#sthash.NPebPhzW.dpuf
Oppenheim Law Firm has anticipated that there would be a rush by the banks to file deficiency judgment actions against homeowners as the clock ticked down to the July 1st, 2014 deadline. In fact, in June 2014 – Dyck-O’Neal, Inc., filed 323 deficiency cases in Broward County alone.
The average home buyer or seller-financer may now be breaking the law according to Dodd-Frank. Oppenheim Law blogs about the exceptions to the new Consumer Financial Protection Bureau and the Dodd-Frank rules. Under the rules, take this into consideration: a seller of a residential property may not act as financer to the buyer if the seller is not a licensed mortgage originator, unless...
"There's been a flurry of banks filing for deficiency cases before the clock struck midnight," said Roy Oppenheim, cofounder and senior partner at Oppenheim Law in Weston. "We've seen a dramatic increase in the last several weeks with banks filing, and we've been busy on that score." Oppenheim said his caseload doubled in the months leading up to the deadline with deficiency suits.
Islamist militant gains in Iraq sent world oil prices higher Monday according to CNN. Photo: ReutersRepeatedly, I am asked what my thoughts are about the implications of the situation in Iraq as it relates to the U.S. economy and the real estate market. While I nor anyone has a crystal ball, I do believe that there are certain logical implications that we can extrapolate from the Iraq crisis.
Specifically, it appears with energy prices spiking that there will be an interruption in the supply of oil from Iraq for the foreseeable future. Of course, the oil companies will use any excuse to drive up the price of oil and thus it is logical to anticipate that we will see a spike in gasoline prices shortly.
When oil and gasoline prices rise, a number of things happen beyond the pump.
CNN: Crisis in Middle East Effects US Housing
Those people who are on fixed incomes or have tight economic budgets begin to cut back on certain discretionary items. They may go out to eat less and/or they will make one less trip to the grocery store in order to save a little money. Thus, those real estate markets that are hypersensitive to any adjustment in disposable income such as 80 percent of the residential market will likely be the first markets to have an alteration in the pricing structure due to increased oil prices. Sustained increased prices at the gas pump are effectively a form of anti-inflation. In fact at times when the economy was heating up too much at the beginning of the millennium the government would want oil prices to go up in order to prevent the economy from overheating.
Now, of course, as we are not in a period of inflation anything that harms the economy can cause deflation in the economy. When money is syphoned out of the economy with increased oil prices, there is less money to spend on other items thus reducing demand in some circumstances.
Of course, the high-end part of the real estate market will likely not be affected by any increase in oil prices because it is not as vulnerable to these small calibrations in the economy compared to the wealth that such individuals may possess. So if you are trying to read the tea leaves it is likely that we will see some changes in a downward or sideways movement as it relates to lower income and middle income housing and very little impact on the higher-end markets.
So as the Middle East erupts; U.S. is on the alternative energy front. Naturally, of course, there is always a silver lining in these situations. We live in a global oil market so as oil prices increase the desire to pursue alternative energy whether it is wind, solar, natural gas or even fracking will increase. U.S. output in oil has soared because we’ve adopted new technologies at a fairly good clip since 2008. New technology is valuable to the U.S. economy in the sense that it will allow us to become even more independent of what goes on in the rest of the world.
Here’s the bottom line. We live in a world that runs on oil. War in the Middle-East puts that supply at risk which makes investments scarce. The local South Florida real estate market has weathered lots of storms. Stay tuned as we continue to watch the events halfway around the world affect our real estate market.
From the trenches,
Roy Oppenheim- See more at: http://southfloridalawblog.com/gauging-the-real-estate-markets-reaction-to-isis-crisis/#sthash.qDty0jLh.dpuf
Roy Oppenheim, foreclosure and real estate defense attorney. Legal blogger and founder of the South Florida Law Blog.
Real estate and foreclosure defense attorney Roy Oppenheim passionately defends Florida homeowners and investors from foreclosure, arranging short-sales, loan modifications, mortgage advice, commercial litigation, and business related matters. Roy is also the original creator of the South Florida Law Blog, named the best business and technology blog by the Sun-Sentinel. Share your comments and thoughts on the Oppenheim Law digital media social networks; they’d love to hear from you.- See more at: http://southfloridalawblog.com/gauging-the-real-estate-markets-reaction-to-isis-crisis/#sthash.qDty0jLh.dpuf
We live in a world that runs on oil. War in the Middle-East puts that supply at risk which makes investments scarce. The local South Florida real estate market has weathered lots of storms. Stay tuned as we continue to watch the events halfway around the world affect our real estate market.
As the Florida real estate and general economy are improving, with average sales prices increasing, the number of foreclosures dropping and unemployment also increasing a funny thing happened as we continue through this recovery: re-foreclosures are up. Re-foreclosures you ask? That’s right.
Oppenheim Law agrees that the slow and steady tortoise represents the judicial process.
Back in June of 2012 I wrote a column briefly explaining the difference between judicial and non-judicial foreclosure states and I debunked the myth that a housing recovery could only be had if a state was a non-judicial foreclosure state. I explained that the idea of individuals having to give up their property rights is not a necessary ingredient in a housing recovery.
Today, two years later, my theory still holds true. Florida, one of twenty-two non-judicial foreclosure states, continues to experience a robust rebound. Guess what, we did it while maintaining individual property rights and allowing homeowners to be heard by a detached and independent judicial system and making sure that the banks are playing by the rules.
Yes, it is true that non-judicial states are experiencing a faster recovery. In non-judicial foreclosure states, homes with defaulted loans move into new owners’ possession relatively quickly. Homes are less likely to be tied up in court proceedings and deteriorate due to neglection and ultimately drive down prices of surrounding properties. However, the benefits of having an out pacing recovery do not come without their costs.
Keep Tabs on the Integrity of the Banks:
The race back to 2007 peak home prices is not the only statistic that matters. We must make sure that we get to those levels, and surpass them, in a sustainable fashion. What good is it getting to the top and knowing that you are destine to fall? A key element in assuring such stability is to keep tabs on the integrity of the banks. Banks have obligations to their share holders to realize growth quarter after quarter. As we have seen, banks are willing to fulfill these obligations at the detriment of our society as a whole. If it was not for judicial foreclosure states and their ability to test the integrity of banks, robosigning and other fraudulent acts by banks would have never been discovered.
Quicker is Not Always Better:
Allowing banks to proceed unchecked is an invitation for their deployment of another elaborate scheme to capitalize on tax payers for a quick profit. It’s an invitation to allow them to make up the rules as they go with no oversight. The argument that the non-judicial foreclosure process should be favored just because of its ability to generate a quicker recovery is flawed in that it simply ignores the adverse effects that undoubtedly outweigh the benefits of an out pacing market recovery.
Let’s compare two states hit hard by the crisis. California, a non-judicial state, and Florida, a judicial state. As of today, California is about 22% away from the 2007 peak home prices while Florida is about 33% away from its peak. Would you be willing to sacrifice your ability to maintain the integrity of banks–and in turn–the longevity of our recovery for 11% more appreciation? I certainly wouldn’t. Especially given the fact that I am convinced we are going to get there anyway.
The bottom line is that as a nation, we are experiencing a housing recovery. Here are the 5 Stats You Need To Know About The Housing Recovery
Some states are recovering faster, and some slightly slower. Those states that are recovering slower–perhaps because of judicial proceedings–are nonetheless still recovering but are doing so in a more responsible and fundamentally sustainable manner.
Oppenheim Law’s practice areas include real estate and defending homeowners and investors from foreclosure, arranging short-sales, loan modifications, commercial litigation, and business related matters. Roy is also the creator of the South Florida Law Blog,named the best business and technology blog by the Sun-Sentinel. Connect with Roy on Twitter, Facebook, Google+, LinkedIn and YouTube . – - See more at: http://southfloridalawblog.com/a-boring-prognosticators-prognostication/#more-10109
Founded in 1989 by a husband and wife legal team, Oppenheim Law is uniquely positioned as one of Florida's leading real estate and foreclosure defense law firms in Ft. Lauderdale, Florida serving national, international, and local clients.The Firm is proud to have the highest rating (A-V) conferred by Martindale Hubbell® Law Directory, the most respected directory of lawyers and law firms in the U.S.
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