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.

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

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.

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.

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.

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.

Florida Foreclosure and Loan Modification Question
I’ve been served with a complaint for foreclosure, but I have been working with my mortgage company on a loan modification, do I really need to respond?

Response
It is important to respond to any complaint timely to preserve your rights. The Summons you were served, together with the Notice of Lis Pendens and Complaint require some sort of response to be file with the Court. Your failure to respond will result in a Default being entered against you. You should talk with a Florida Foreclosure Lawyer before responding to the Court. it is important that you do not waive any potential defenses, and time is of the essence in filing your answer.