Miami Foreclosure Defense Lawyer
Before opening the firm, Bruce Jacobs spent years representing banks in foreclosure actions in Miami and throughout Florida. Our law office proudly uses that knowledge and experience to empower homeowners and real estate investors. We constantly train on innovative legal strategies to provide insight and information for the client to make the best strategic decisions to deal with distressed properties. Only a Miami foreclosure defense lawyer can go to court and fight to stop a foreclosure. When confronted with a legal dispute, Negotiate From Strength and let Jacobs Legal help you achieve that position.
A well-defended foreclosure has many benefits:
- You can continue to live in your home during the fight
- You can continue to collect rent from investment properties
- You may get a meaningful loan modification offer that brings the principal balance on your loan down to the market value of your home
- You may avoid a deficiency judgment on an underwater property
- You could develop facts that will force the bank to settle on better terms
Jacobs Legal doesn’t ask for loan modifications through the loss mitigation nightmare that frustrates thousands of homeowners. This is often a futile effort with the Bank’s lost paperwork and false promises. Instead, the firm launches a comprehensive counter-attack to expose weaknesses in the Lender’s ability to foreclose.
In Florida, the real danger in foreclosure is not just losing your home, but getting hit with a judgment on the way out. Lenders may obtain a “deficiency judgment” for the balance of what you owe after selling your house at the foreclosure sale. Fortunately, Florida law allows Jacobs Legal, PLLC to demand documents and ask the Lender tough questions before they can sell your home.
For many, fighting back is the best hope to save a property from foreclosure. Problematic foreclosures have the best chance of a meaningful loan modification with a principal balance reduction. For others hoping to get out from under an underwater property, fighting back is the best protection against being forced to pay the unpaid principal balance even after a shortsale or walking away.
Defenses to Foreclosure
Defenses to Foreclosure The Truth in Lending Act (TILA) is a consumer protection statute enacted by Congress to let borrower police lenders who did not accurately disclose the finance charges. TILA gives borrowers the right to seek actual and statutory damages. Most importantly, TILA gives the homeowner a right to rescind the transaction for up to three years for material violations of the Act. This means the Bank must “undo the deal” and give you back all the interest and fees you paid on the loan.
Rescission can be used to invalidate a mortgage on your property.
The Real Estate Settlement Procedures Act (RESPA) is another consumer protection statute designed to stop lenders from charging illegal fees that make mortgages more expensive.
RESPA forces Lenders to provide borrowers with accurate disclosures of the closing costs, lender practices, and relationships among the companies that provide services before, during and after closing. RESPA also prohibits kickbacks and referrals fees. RESPA covers loans secured with a mortgage placed on a one-to-four family residential property.
Home Owners Equity Protection Act (HOEPA)
A violation under HOEPA may be raised as a strong defense to the foreclosure. An attorney can review your loan documentation to determine if the lender charged a high interest rate and excessive fees.
Fight Back Against Predatory Lending!
Did your mortgage broker convince you to sign a teaser rate or negative amortizing loan?
Did you fall into the subprime loan trap of pay option loans causing so many foreclosures in America?
Many of these abusive tactics targeted borrowers who actually qualified for regular loans. Banks make thousands of dollars in fees and interest by putting the borrower into a subprime loans. Brokers became greedy and steered borrowers into subprime loans to receive higher commissions. If you think you may be a victim of predatory or unfair lending practices, click here. Bruce Jacobs & Associates can use evidence of predatory lending as strong leverage in negotiating a resolution to your foreclosure.
Predatory lending practices often serve as the most powerful defenses you can raise in a foreclosure action. In Florida, foreclosure is an equitable action which means the Court is empowered to reach a fair result. If your lender preyed on you with an unfair loan, you can fight back. Bruce Jacobs & Associates are former bank lawyers fighting foreclosure!
Other Defenses Against Foreclosure
Procedural Due Process
Under Florida law, you are entitled to conduct full discovery to formulate your defenses to foreclosure. You have the right to demand your lender produce documents, witnesses, and answer questions under oath. The proper exercise of discovery is an excellent source of leverage in negotiations with your lender.
If you refinanced your home and signed your current mortgage less than three years ago, you may still have the right to rescind the loan. If your loan can be rescinded, you can recover the interest and finance charges paid to your lender.
The vast majority of foreclosure lawsuits contain a lost note count. Florida law requires lenders to attach a copy of the note to their complaint. If the Lender cannot provide a copy of your mortgage, they cannot foreclose your mortgage.
Mortgage Electronic Registration Systems Inc. (MERS)
MERS is a company created to help Wall Street package thousands of mortgages into the securities which caused this mortgage meltdown. MERS presumes to hold the mortgage as a “nominee” for the true Lender who in fact holds and owns the loan. The relationship of these entities may materially affect your lenders’ right to foreclosure. Many lenders mistakenly purchased “forced-placed” insurance policies under the mistaken belief that the homeowner let their own insurance policy lapse. If the homeowners have their own homeowner’s insurance policy, they should not be paying for the lenders insurance.
Lost or Misapplied Payments
Lenders are not perfect. In fact, many lenders make mistakes in the processing payments. Sometimes payments are credited to the wrong account or posted on the wrong day. This loan servicing errors can provide excellent leverage to negotiate a foreclosure.
Failure to Accelerate the Note
The loan cannot be foreclosed until the loan is accelerated, if required, and notice must be sent to the buyer.
Under the FHA loan program, loan services are required to provide special counseling for borrowers before foreclosing their loan. The lender must mail a counseling notice to the borrower within 45 days of their default. The lender must conduct a face-to-face meeting with the borrower within 90 days of default. The lender must also provide the borrower with a notice of available counseling. Failure to comply with these rules is an affirmative defense that can prevent a foreclosure.
Accepting Payments After Foreclosure
Some lenders make the mistake of accepting partial payments during the foreclosure. If the borrower is not in bankruptcy, the borrower may assert partial payment as a defense to the foreclosure
Unfair and Deceptive Trade Practices
Where the loan displays fraud, abuse or unfair trade practices, these may be difficult defenses to a foreclosure for the lender to overcome. Examples of unfair trade practices include:
- Loan “flipping” — frequent refinancing resulting in little or no benefit to the borrower that generate excessive fees and prepayment penalties
- Refinancing of special subsidized mortgages that result in the loss of beneficial loan terms;
- “Packing” of excessive and sometimes “hidden” fees in the amount financed;
- Using loan terms or structures like negative amortization to make it nearly impossible for borrowers to reduce or repay their loans
- Using balloon payments to conceal the true financing costs and force borrowers into costly refinancing transactions or foreclosure;
- Targeting older or unsophisticated borrowers for inappropriate or excessively expensive credit products, especially where they could qualify for mainstream credit products and terms;
- Inadequate disclosure of the true costs, risks and, where necessary, appropriateness to the borrower of loan transactions;
Fair Debt Collection Practices Act (“FDCPA”)
Attorneys who file foreclosure cases are considered debt collectors under the FDCPA and must comply with statute. Violations of the FDCPA can give rise to a statutory and actual damages claim which can complicate a foreclosure.
Incorrect Notice or Service
Many lenders use shoddy services that fail to comply with the fundamental due process requirements that ensure the borrower has notice of the foreclosure. The Lender’s attempts to use newspapers to serve a foreclosure is often done in error, without containing all the information required for the notice to be accurate.
How a Miami Foreclosure Defense Lawyer can Help when Facing Foreclosure
The time it takes a bank to foreclose on your home and kick you out of your house after you stop making mortgage payments can be as little as 30 days or as long as several years. The difference depends on whether you take the proper steps to assert your rights and the protections provided to homeowners under Florida and federal law, and whether you hire an experienced foreclosure defense attorney to advise and represent you at every step. At Jacobs Legal, PLLC, our Miami foreclosure defense lawyers are committed to taking every step possible to help our clients keep their homes or obtain the best result possible when faced with foreclosure.
Banks are not eager to foreclose on a home that they may not be able to sell for the value of their loan. They would rather have a paying customer in the home so they can continue to make a return on their investment. We work with banks and other lenders to negotiate loan modifications, refinancing, forbearance and other strategies that can keep you in your home and delay or cancel foreclosure proceedings. People who try to negotiate loan modifications on their own find the procedure to be frustrating and ineffective. Some even think they are safe negotiating with a bank’s loan department, unaware that another department is continuing to move forward with the foreclosure! At Jacobs Legal, we negotiate from a position of strength based on our knowledge of the laws and procedures that can help you keep your home and fight foreclosure.
Florida is a judicial foreclosure state, meaning banks must go through a legal process in the court system in order to foreclose on a mortgage and remove you from your home. You’ll receive notice of a complaint and have the opportunity to go to court, where you can assert your rights along with any defenses to a possible wrongful foreclosure of your property.
If you don’t properly follow up on a foreclosure notice, the court will simply enter a default judgment against you, paving the way for the bank to take your home. By hiring an experienced Miami foreclosure defense attorney to represent you, you can be assured that all of your legal rights will be protected and asserted throughout the proceeding. Your attorney can help you stay in your home longer while you fight to keep your home or leave on the best possible terms.
A foreclosure defense lawyer will know the laws and legal procedures necessary to represent you better than you could represent yourself, including avoiding default judgment, asserting important rights, and filing a legal notice of dispute (lis pendens) so your property doesn’t get sold out from under you to a third party while you are still fighting the issue in court.
Defenses to Foreclosure
You may have any number of wrongful foreclosure defenses available that your attorney can pursue to help you avoid foreclosure and stay in your home. These include defenses related to title and possession, predatory lending and fraud, securitization, and violations of federal law such as the Truth in Lending Act. There are literally dozens of defenses which may be applicable to your situation, but only an experienced Miami foreclosure defense attorney who regularly practices foreclosure defense in Miami courts will be up to speed on all of these and able to tell which defenses apply to your unique set of circumstances.
When the best solution for you is to leave a home you cannot afford to keep, our foreclosure defense attorneys can negotiate with the lender and set up a situation where you avoid foreclosure and part with the bank without a black mark on your credit report or liability for any deficiency judgment. A deficiency judgment occurs when the bank sells your home for less than you owe on the mortgage, leaving you liable for the balance. Negotiating on your own or without the assistance of a skilled foreclosure defense lawyer could leave you without a home and liable for a deficiency.
Stay in Your Home and Fight Foreclosure
Miami is one of the top five metros in the country for the amount of vacant properties in foreclosure. So many people who fall behind on their mortgage and know they can’t keep the house simply stop paying and move out before the home is ever foreclosed on. Some move out the minute they get a notice of foreclosure from the bank. This is not a way to solve your problem; it is only a way to delay a negative outcome which ultimately may be worse than if you had stayed in the home and faced your troubles head-on. At Jacobs Legal, PLLC, we don’t shrink from a fight. Our Miami foreclosure defense attorneys know the law and the defenses you may have available to fight that foreclosure and obtain the best outcome possible. Don’t run away from your problems; stay and fight. Our Miami foreclosure defense lawyers will stand with you and fight for you.
Beware the Zombie Foreclosure
If you receive a notice of foreclosure, you may wonder what’s the difference if you move out now versus waiting around for the bank to finish the process and then force you to move. Even if you move out and the bank takes possession, your name is still on the title until the bank completes foreclosure. But the bank may decide not to complete the process. Instead, they may just write the home off as a loss and sell the debt to a collections agency. Now you’ve got a bill collector who purchased your debt for pennies on the dollar and is in the business of going after and squeezing you for as much of that debt as they can recover. Our debt defense and consumer rights lawyers have enough experience with bill collectors to know the harsh and unsettling methods they will go through to collect on a sizeable debt.
A vacant property in the midst of foreclosure is known as a zombie home or zombie foreclosure, and it is certainly one creature you don’t want to mess with.
Why you should stay in your home in the face of foreclosure
Even if you think you abandoned the property, until the bank decides to move forward and complete the foreclosure, your name stays on the title, and you remain liable as the owner of that property. This means that you could be hit with municipal fines if you fail to maintain and keep up the property in line with municipal codes. Also, if someone gets hurt because of a dangerous condition on your vacant property, you could be liable for thousands of dollars in a personal injury lawsuit. This would be your own personal liability, since you probably stopped paying homeowner’s insurance when you moved out as well. Until the bank takes title, you also remain liable for property taxes and could get stuck with a big bill from the government for back taxes, plus interest and penalties.
Get the Legal Advice and Help You Need from Experienced Miami Foreclosure Defense Lawyers
If you are facing foreclosure on your home, you do not have to go it alone, nor should you. Call Jacobs Legal at 305-358-7991 for a confidential consultation with a knowledgeable, experienced and successful Miami foreclosure defense lawyer.