Florida Estate Planning Lawyer Blog

Florida Commerical Foreclosure Case Law Update

Recently a Florida Court ruled that a Certificate of Authority is not required for a borrower to foreclose of a commercial property.

Summary -Mortgage foreclosure -- Commercial property -- No merit to borrowers' argument that national bank's failure to obtain and hold a “certificate of authority” from Florida Department of State precluded bank from transacting business in Florida, including securing, collecting, and enforcing debts, mortgages, and security interests -- State cannot require a national bank to register or file as a “foreign corporation” in order to maintain a lawsuit in a state court -- Statute prohibiting foreign corporation from transacting business in state until it obtains certificate of authority is expressly preempted as applied to all national banking associations -- Borrowers' contention that factual issues exist as to amounts owed is without merit where borrowers at no time offered a contrary calculation of monies owed, but merely contended, by way of affidavit in opposition to bank's motion for summary judgment, that they do not owe the amounts alleged by the bank -- Order entering final summary judgment against each mortgagor and against guarantor was appropriate.

35 Fla. L. Weekly D557a

Continue reading "Commercial Property forclosure and Certificate of Authority" »

Bank of America Appears to be Foreclose on homes like a random drive by shooting writes Jonathan Turley on his blog.

The Massachusetts owners filed a lawsuit in federal court which states they paid cash for their home in 2005. This was five years before agents for Bank of America seized the house, removed belongings and changed the locks on the doors.

This is not the first time we have seen a bank change the locks and remove all of the homeowners possessions without justification. Hopefully this is not a growing trend. If you are being foreclosed on or have been locked out of your home by a bank contact a Florida Foreclosure Defense Lawyer to discuss your situation.

How long can I stay in the home or what are my options?
It is still possible to stop the Summary Judgment and remain in the home but you need to act quickly or you could be removed from your home in as little as 24 hours after the sale.

Most Florida Foreclosure law suits are improperly filed and can be stopped, but you should discuss your situation and circumstances with a Florida Foreclosure Lawyer as soon as possible. Generally, you should start this when you first fall behind in your payments but we have had success in stopping summary judgments and even sales once they are scheduled. Whether anything can be done depends on the individual circumstances of a case.

If you are in foreclosure on your home or a rental property you should contact a Jacksonville Foreclosure Lawyers or Florida Foreclosure Lawyer to discuss your options.

If you think its time to review your Florida Will or Florida Estate Planning Documents contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to review your documents before you begin to melt.

If I do a Short Sale on my Florida Home am I responsible for anything else? Yes you can be responsible for the difference in what the home is sold for and the loan amount + additional fees and expenses. You must get the mortgage company to release your from this liability. Many will tell you that it is not possible, but it's done all the time.

Before agreeing to a short sale in Florida, a loan modification, or a forbearance agreement, you should have the agreement reviewed by a Florida Foreclosure Lawyer or Jacksonville Foreclosure Lawyers to make sure you understand what you are agreeing to.

In a Florida Foreclosure Law Suit it is possible to amend an answer once it is filed. Often this is done when there was a mistake with the original answer or the Defendant has submitted a letter on your behalf as an answer. Sometimes the lender or the person suing you amends their complaint to change out the plaintiff or to change the language in the lawsuit. Courts will generally allow a part to change a complaint or answer but do not have to. Some changes are not permitted and you should discuss any changes made with a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyers

The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend

1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.

According to the U.S. Department of Labor's Bureau of Labor Statistics, there are more than 31 million people currently unemployed -- that's including those involuntarily working part-time and those who want a job, but have given up on trying to find one.

David Goldman of Apple Law Firm, Florida Estate Planning Lawyer Blog, and NFA Gun Trust Lawyer Blog became a member of the Estate Planning Professionals network (EPPN) of the NRA. The next EPPN event will be held in conjunction with the NRA Annual Meeting in Charlotte, North Carolina in May 2010.

As a member of the EPPN, David can modify wills and trusts with language that can be added to Florida Wills and Trusts to make bequests to the national Rifle Association or any of the NRA charities or endowments.

If you live in Jacksonville or anywhere in Florida and are facing a Florida Foreclosure Lawsuit or facing the foreclosure on your home in the future there are somethings you should know.

In Florida a foreclosure process my proceed in the courts. This is because Florida requires a Judicial Foreclosure with court supervision. Once you fall 30 days behind on your payments the lender can file a foreclosure lawsuit against the owners and tenants of the home. Most foreclosures happen when you become at least 60-90 days late on your payments. When this happens the bank or servicing bank will not accept any more payments from you.

The first thing that happens is a foreclosure notice will be filed. You then have 20 days to file an answer to the lawsuit or some other document with the court. You can also file a motion asking for more time or a motion to dismiss. It is important not to ignore this notice as the bank can obtain a default judgment if you do not file a response. Under Florida Foreclosure law, you can still save your home before it is sold if you pay off the note. Most individuals do not have the ability to do this.

It is important to discuss your circumstances and goals with a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyer to determine what steps are appropriate for your circumstances.

Jacksonville Divorce Lawyer: What does Florida Divorce Law have to do with Florida Estate Planning? We often find that Estate planning is needed most around the time of a Divorce in Florida. We now have a Jacksonville Divorce Lawyer on staff to help deal with the unique issues of Jacksonville Child Support, Jacksonville Child Custody, and Jacksonville Family law.

These issues often arise around the time of Florida Estate Planning or in conjunction with a Florida Probate.

If you have questions concerning Florida Estate Planning contact one of our Florida Estate Planning Lawyer or Jacksonville Divorce Lawyer to discuss your situation.

We will begin to cover topics related to Estate Planning, Probate, and Trust Administration and Florida Foreclosure Defense in relation to Florida Family law from a Jacksonville Divorce Lawyer's prospective.

a Jacksonville Foreclosure Lawyersknows that foreclosures in your neighborhood hurt property values. Good news for Texas residents, Today they have help in dealing with property values and the taxes related to them.

Homeowners in neighborhoods that have been hurt by homes with foreclosures might find some relief. The new Teas law requires appraisal districts to consider properties that have been foreclosed on when determining a home’s value. Homeowners in other states including Texas and Florida have complained that appraisal districts have excluded foreclosed properties and those with distressed resale values when setting some home values.

With as many as 1 in 6 homes in Florida facing a potential foreclosure, these values must be used to help determine real market value of the homes in an area.

If you need help determining if Florida Foreclosure Defense is a viable option in your circumstances contact a Florida Foreclosure Lawyer or Jacksonville Foreclosure Lawyers to review your circumstances.

A Jacksonville Guardianship lawyer can help individuals who are not able to deal with their own affairs in a physical or financial manner. By having a person appointed through a Florida Guardianship Proceeding, an individual (the ward), appoints a person( the guardian) to help the ward in those areas where they do not want to or can not represent their own best interests.

A Florida Guardianship attorney can either help to represent the individual or represent others to make sure that the proper guardian is chosen and that they fulfill their fiduciary obligations. Often we find that guardians do what they want and not necessarily what is in the best interest of the ward. This can cause damages and can open the guardian to liability for the actions that they took.

If you or someone you know if in need of a Florida Guardianship or might have been taken advantage by their Florida Guardian, you should contact a Jacksonville Guardianship Attorney to discuss your situation and what options are available to you through Florida's Guardianship proceedings.

Florida is not the number 2 state for Foreclosures as it moves ahead of California with 1 of every 165 homes in danger of becoming bank-owned reported the Palm Beach Post.

Many properties that sold in 2003-2006 are now upside down and if people loose their jobs, they risk not being able to pay their mortgage or sell their home. In November there were more than 3300 foreclosures filings. While this number is similar to October's number it is 26% greater than in 2008.

With 1 of six foreclosures in the US being reported in Florida, there a greater risk of foreclosure in Florida than in most states.

If your home is in Foreclosure, or your are at risk of a Florida Foreclosure, or are in the process of attempting a loan modification, you should contact a Florida Foreclosure Lawyer to discuss your options and what rights you have. Often families faced with foreclosure in Florida may find that there are defenses to the foreclosure and counterclaims that can help them stay in the home and may be a better option than walking away or doing a short sale, or a loan modification.

Today I received a card from another Florida Estate Planning Lawyer. I found that the creator of the card has several cartoons on estate planning. Some of them are very funny and worth looking at.

The IRS recently announced that the gift tax annual exclusion will remain unchanged in 2010 at $13,000

The yearly amount of the exclusion is based on the Consumer Price Index and has increased from $10,000 in 1997 to $13,000 in 2009 and 2010. As long as your gifts to an individual are less than the exclusion amount, there is no gift tax return that is required to be filed and no gift taxes are due. Each spouse gets an exclusion so a married couple can actually gift $26000 to each individual without creating a tax liability or necessity for reporting.

With proper gift planning a family can transfer a significant amount of money to their children and grandchildren. Take a family who has 3 kids, each married and each with 2 grandchildren.
This creates 3 kids + 3 spouses + 6 Grandchildren. A gift of $13,000 to each by each parent could remove 312,000 a year from your estate. Do this for 10 years and you could remove over 3.1 Million dollars. Given that the current tax rate is 45%, this could save $1.4 Million in estate taxes.

There are other ways of reducing your estate taxes and you should discuss your objectives and goals with a Florida Estate Planning Lawyer or Florida Asset Protection Lawyer who will review your individual circumstances and make recommendations based on them.

Remember that gifting is not for everyone and as you get older and your chance of needing Medicaid increased, gifting can disqualify you from certain government benefits. If there are issues or concerns you should discuss them with your Florida Estate Planning Lawyer

Florida Revocable Trust's as well as those created in other states often have language that provides for the health, education, maintenance, and support of our spouses and children. Recently I was reading an article written by a CA Estate Planning Lawyer and firearms instructor on providing firearms training as an option within the definition of education. David R. Duringer wrote an article entitled Does the Definition of Education in Your Revocable Trust Allow for Firearms Training? and while it is a short article and only deals with firearms education, it got me thinking about other types of education and training that may be important to your beneficiaries or family tradition that you may want to include in your traditional revocable trust. Obviously this is something that would make sense to provide for in a NFA Gun Trust or a firearms trust designed specifically for firearms. In David's article he goes on to state

Such training can provide your children with the comfort of skill at arms so they can protect themselves and their own children, and furthermore, passes on American values necessary to preserve political independence of families in our society. Other benefits of such training can include increased personal responsibility and lower juvenile delinquency rates.

You may even want to go further with an incentive trust provision actually requiring this training, possibly with achievement standards.

As a Florida Foreclosure Lawyer we notice trends that would lead you to believe that the banks are using HAMP to collect fees and not to actually help people. A recent article on PUBLICCITIZEN a Consumer Law & Policy Blog has an article by Alan White where they quote some of the HAMP Conversion rates. It would appear from the very low rates, that there is an intentional effort not to approve, or to allow many into the program who they know will not qualify. The these numbers are compounded further by those who wait months to try to receive approval for temporary modifications.

As of August 2009, Bank of America had only accepted 59891 temporary loan modifications, while this may seem like a lot, they only converted 98. That means they collected fees from more than 600 people for every conversion. With All of the fees go to the servicer, It easy to see how Bank of America and other Banks are padding their bottom line at the expense of the American Consumer.

The bad news is that even those who are eventually approved find themselves in a worse position than if there was no loan modification. While the current payment is lower, many will actually end up paying more for their home than if they were able to perform under the original note. Since a prerequisite of the program is your upside down in the home (but not too much- we would not want to help those who really need it) maybe its a good that few of the HAMP modifications are actually approved.

If you are stuck in limbo contact a Jacksonville Foreclosure Lawyers who helps clients from many states who are subject to a Florida Foreclosure by Contacting us to discuss your situation, goals, objectives, and ways we can help.

Most homeowners do not realize that a Florida foreclosure can be defended. Homeowners have the ability to fight for your right to remain in you home. THE APPLE LAW FIRM CAN FIGHT FOR YOU!

You may be upside down in your property today and think that walking away is your best option. STOP AND THINK. This may not be the right choice for you and your family! Over time your equity will return and by defending your foreclosure now, your future equity can be in protected and you may stand a better chance to economically survive. Fighting a Foreclosure makes sense for many Florida families and should be discussed with a Florida Foreclosure Lawyer or a Florida Foreclosure Lawyer who can look at your individual circumstances and let you know what your options are.

You may be behind in your payments and might have received a notice of default. That does not mean you must leave your property! Regardless of what debt collectors are telling you. You are a homeowner, not a renter. Eviction is not the lenders remedy. You have a right to fight for your home.

Sometimes events in your life have result in a financial hardship. Just because you are in default, it does not mean you have to rollover and abandon your home. By allowing the foreclosure to proceed without asserting your rights, you are providing relief to lender and giving them an easy out to seek the judicial sale your home, whether they actually own your home or not. You may believe you are in the wrong because you haven’t made your payments. This is not always the case. An experienced Jacksonville Foreclosure Lawyers or Florida Foreclosure Lawyer can explain why you should assert your rights and ways to protect your home.

There has been a barrage of "Non-Lawyer assistance" programs soliciting services to negotiate a “work-out”. Once a lawsuit has been filed, they cannot represent you and protect you in the Florida foreclosure lawsuit. Unless and until you receive a court document confirming the foreclosure has been dismissed, the lawyers on the other side will proceed. Regardless of what anyone is telling you! 


We have seen many clients that are in the process of a loan modification and a Florida Foreclosure case is filed against them. There are steps that every homeowner should take to protect their rights even if they are not in foreclosure at this time. The company you are paying for your monthly payment to may not even own your note and you may find that you owe the money to someone else. IF you own a home and are at risk of a foreclosure in Florida you should contact a Jacksonville Foreclosure Lawyers or Florida Foreclosure Lawyer as soon as possible to discuss your options.

Can your Bank Lock you out of your home before a Foreclosure is finished?

Just a few days ago a family returned home from a Thanksgiving trip to find that her bank had locked her our of her home. The bank's inspector claims that the home looked abandoned. and change the locks to prevent damage to the property.

The funny thing is the woman had just modified received a letter from the bank that she has loan had been modified.

We have seen several lock outs and its important to discuss how to prevent lockouts with your Florida Foreclosure Lawyer. If you have been locked of your home there are things that can be done and you should contact you Jacksonville Foreclosure Lawyers to discuss them.

Yesterday, the House of Representatives voted 225-200 in favor of H.R. 4154. The bill will make the 2009 Estate Tax Level Permanent.

Currently (for 2009) the estate tax exemption is $3.5 million and the maximum tax rate on estates is 45%. The Bill referred to as the Permanent Estate Tax Relief for Families, Farmers, and Small Businesses Act of 2009, would permanently extend this estate tax exemption amount and tax rate.

The Bill still needs the Senate and President's approval.

Most people would not believe that a family pet needs to be subjected to the Florida Probate process, but Florida Law defines animals as personal property and as such are subject to probate just like other personal property. Fortunately we can create provisions in our Florida Revocable Trust to deal with our animals or at least to own them so that they are not subjected to probate. If you want to provide for more than an easy transfer of the ownership of the animals, you might consider pet trust provisions to allow for the care of the animal in the event they survive you.

Next time you talk with your Florida Estate Planning Lawyer ask them about your pet and how they will be dealt with if you were to die.

Canadian-based TV production company – CMJ PRODUCTIONS - is currently shooting a new documentary series called, ‘The Will’ airing on INVESTIGATION DISCOVERY.
"The Will" tells the true life stories of complex and surprising disputes that have arisen surrounding a will, estate or trust.

The series is now accepting story submissions to appear on-air. They are looking for dramatic, unusual stories with numerous twists and turns, secrets and real emotion. Most importantly, all cases must have reached a final ruling or settlement in order to be considered. The company wants to interview all parties involved as well as their legal representatives.
Stories from Canada, the United States or the United Kingdom will all be accepted.
The goal of this series is to objectively illustrate both sides involved.

Each episode will explore why each party felt entitled to the involved inheritance and why they might have thought that others were less deserving than themselves.

Involvement with the series offers a great opportunity for legal experts to help viewers to deepen their understanding of the importance of wills and estates.

If you would like to participate in this series, or have a case you think they should profile, please contact researcher Ramelle Mair at r.mair@cmjprod.ca.

For more information on the production company, feel free to check out the company website at:

www.cmjprod.ca (CMJ Productions, 100-640 Notre-Dame, Saint Lambert (Quebec), Canada, J4P 2L1).

One of the benefits of using a Florida Revocable Trust is that the contents of the trust can remain private. Remember that if you or your heirs provide copies to others you may loose this advantage. This is exactly what happened with Farrah Fawcett's Revocable Trust. RadarOnline.com obtained a copy of Farrah Fawcett's Living trust and has posted it.

a) All art work has been left to the University of Texas at Austin.
b) All other personal items have been left to her nephew, Greg Walls.
c) $100,000 has been left outright to ex-boyfriend Gregory Lawrence Lott.
d) $4,500,000 has been left in a lifetime trust for the benefit of Fawcett's son, Redmond. Producer Richard Francis is named the Trustee of this trust.
e) $500,000 has also been left outright to Greg Walls.
f) $500,000 has been left in a lifetime trust for the benefit of Fawcett's father, James Fawcett.
g) The balance of Fawcett's estate has been left to The Farrah Fawcett Foundation, a private foundation founded by Fawcett in 2007 that is dedicated to funding cancer research.

All of these proceeds will avoid probate and the costs associated with them. There are many benefits to a Florida Revocable Trust. If you are thinking of creating a Florida Revocable Trust contact a Florida Estate Planning Lawyer to discuss your goals and objectives.

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If you own a home, subject to a Foreclosure in St. Johns county, you should contact a Florida Foreclosure Lawyer to discuss your rights.

St. Johns county is made up of the following citites.
Crescent Beach, Fort Matanzas, Fruit Cove, Hastings, Marineland, Palm Valley, Ponte Vedra, Ponte Vedra Beach, St. Augustine (County Seat), St. Augustine Beach, Switzerland, Vilano Beach.

A Florida Foreclosure Lawyer can file a response to a St. Johns County Foreclosure to stop the proceeding or find errors and evidence of things the bank, bank servicer, mortgage company or others have done wrong in conjunction with your loan.

Many times loans have been destroyed or lost and there many be no real party in interest that is able to sue you. It is important to answer your Foreclosure suit correctly and alleged the proper defenses and counter claims so that you can have a favorable settlement. If you would like to discuss your options, you should contact a Florida Foreclosure Lawyer as soon as possible.

To date, only a very small percentage of loans have received modifications. And, even those modifications are only good for number of years. At the end of the modification term, the loans revert back to what started this mess in the first place. Where will you be then? If you have already entered into a modification of your mortgage, take a close look at what you “really” agreed to.

In October 2009, Josh Fuhrman, a representative of the Home ownership Preservation Foundation spoke at a town hall meeting and asked homeowners to be “patient” about the slow pace of loan modifications. It is common knowledge that only a very small percentage (about 12%) of people who qualify for relief actually get approved for a loan modification. Should the other 88% just sit tight while lenders foreclose on their homes? Seem fair? Remember, most likely, YOU ARE IN THE MAJORITY 88%!

Did the bank loose your paperwork or as you to resubmit it every 30 days. Homeowners are under a false sense of security thinking they are safe from foreclosure and do not seek other remedies. Homeowners are using their common sense of fairness thinking that the lender will not proceed with the foreclosure. THIS IS NOT TRUE.

Many lenders do not close foreclosure proceedings even if they offer you a loan modification. If you are in the middle of a loan modification, expect a foreclosure, or are being foreclosed for a Florida property that you live in or rent, contact a Florida Foreclosure Lawyer to discuss your rights or review your proposed loan modification,

Many Jacksonville Foreclosure Lawyers see the poor attempt by banks to do loan modifications.

Loan Modifications are in the news in Jacksonville Florida where it appears that many have been told to stop making payments to be eligible for a Mortgage Modification. Once individuals stop making payments, the banks have been known to stall and claim that they have lost the records. Often individuals who participate in loan modifications must resubmit documents every thirty days. Many do not qualify for the government supported loan modifications and are only offered minor drops in the payments.

If you are participating or trying to achieve a Florida Loan Modification, you should be gathering information on violations of the laws by the people you are speaking to. Please contact a Florida Foreclosure Lawyer to request information on how to log these violations. These violations of the laws can be compensated and can help to offset your mortgage amount.

as a Jacksonville Foreclosure Lawyers who also practices Florida Probate Law I see many Florida Estates where the decedent's home has negative equity. If you are appointed the Personal Representative of a Florida Probate you should explore Florida Foreclosure Defense. You may have a fiduciary duty to do so and preserve the assets of the estate.

If you are considering a Florida Foreclosure Defense you will need to do a Formal Administration of the Probate so that a Florida Personal Representative can be appointed to defend the Florida Foreclosure and pursue counterclaims on behalf of the decedent's estate or beneficiaries.

As a Jacksonville Foreclosure Lawyer its important to understand the difference and benefits of a Judicial Foreclosure state like Florida over a Non-Judicial Foreclosure state like California.
Florida law requires that the lenders and mortgage companies seek a court judgment that allows for the foreclosure. This type of foreclosure is a Judicial Foreclosure. Over 20 states have non-judicial foreclosures and do not have the formal process. A Judicial foreclosure state, like Florida, is good for consumers because it provides a structure to file counterclaims and asset other defenses for Truth in lending violations or violations of the Fair debt Collections Act.

In other states, clients have a difficult time in asserting defenses. If you have been trying to work on a Loan Modification and have not been successful, you should contact a Jacksonville Foreclosure Lawyers to discuss things that can be done to prepare for foreclosure and to keep track of violations that could create monetary damages that you may be entitled to.

Duval County was one of the top locations in Florida for Foreclosures in Florida in September 2009. With over 55,000 foreclosures in Florida this month Duval County Ranked number 7 in the state.

Jacksonville had 2299
Jacksonville Beach had 64
Atlantic Beach had 45
Neptune Beach had 12

This year there have been more than 484,000 foreclosures filed in Florida and only 68,000 of those homes have been sold.

If you are facing foreclosure on your home or business, please contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyers for a free consultation.