Tuesday, November 26, 2013

Florida Circuit Courts Value Foreclosure Over Legitimate Settlements

All throughout the State of Florida, foreclosures are being pushed through the courts in record numbers. Thousands of cases which have been lingering in the courts' dockets have either been administratively closed through foreclosure in favor of the banks, or dismissal for the homeowner. Dismissals in foreclosure cases are much more likely when a homeowner is represented by an experienced foreclosure defense attorney. The banks are successful in obtaining foreclosures in a majority of their cases simply because the majority of their cases are uncontested. The amount of uncontested matters which result in foreclosure for the banks have severely distorted the success ratio for Florida homeowners facing foreclosure. Plain and simple, if homeowners make the effort to push back against the banks, the results in favor of the homeowner can be surprising. Favorable results for homeowners are not limited to dismissals of cases on the merits. 

When a homeowner hires an experienced foreclosure defense attorney, their chances of obtaining a favorable outcome are undoubtedly magnified. Success for a homeowner in foreclosure can be defined in a number of different ways, including dismissal on the merits, or settlement prior to trial. Settlement in foreclosure cases usually occurs when the parties agree to an alternative to foreclosure, such as a loan modification or short sale. Foreclosure alternatives are not only beneficial to homeowners, but also to the banks, and the judiciary. When foreclosure cases are dismissed on the merits, usually the bank will turn around and refile the foreclosure action, correcting any deficiencies from the previously dismissed case. This not only creates another foreclosure case on the court's docket, but also may eventually result in foreclosure against the homeowner. Alternatively, when banks and homeowners can settle a case through a short sale or loan modification, everybody wins. The case is dismissed via settlement, thereby relieving the judiciary of the matter. The homeowner either remains in the home under much more affordable terms by modification, or avoids foreclosure by selling the home to an able purchaser. The bank receives money either through a loan modification or short sale, and also avoids having to maintain the home after taking possession. 

With the benefits of settlement briefly addressed above, one would think that a proposed settlement agreement between the parties would be readily approved by the courts. In fact, appellate courts throughout the State have frequently expressed their encouragement of settlements. The harsh reality is, however, that circuit judges are more inclined to push cases through to foreclosure despite any representation by the parties that a case has been settled, or will be settled shortly. This is especially true when a foreclosure sale date has already been scheduled. Parties seeking to postpone a foreclosure sale date in order to allow, for example, a short sale closing to occur, are now frequently dismissed by judges who would rather the case proceed to a foreclosure sale, thus clearing the dockets with greater expedience. Judges are now playing a pivotal role in the approval of loan modifications and short sales, creating an additional loophole for homeowners in foreclosure who wish to resolve their disputes with the banks. 

The purpose of this post is to make homeowners aware of what's going in the trenches....what happens in foreclosure court each and every day, all throughout the State of Florida. If you're a homeowner in foreclosure, the time to act is now. The slightest delay can be detrimental to your chances of settling a case, or prevailing on the merits. Before it's too late, contact the law firm of Bruce S. Rosenwater & Associates to start defending your home against foreclosure, or work on an agreeable alternative. 

Friday, November 22, 2013

Fighting Through the Fast-Track

During the past year, the circuit judges throughout the State of Florida have received immense support (and pressure) from the Florida Supreme Court to move foreclosure cases forward and clear the dockets. Such pressure has not only created a strain on the judiciary, as well as the banks and homeowners involved in foreclosure actions, but the very rules of law by which we are all guided have been abandoned and disregarded by the banks, their law firms, and, at times, even the judges who run the foreclosure divisions. 

Bruce S. Rosenwater & Associates has experienced this pressure first-hand, with several of our clients being forced to trial by the circuit courts. Instead of conceding to the pressure, the law firm of Bruce S. Rosenwater uses the court's fast-tracking to our advantage. One might think that rapidly proceeding to trial is the worst case scenario for a homeowner in foreclosure. The rationale being that this is the end of the road for them, or the last piece of the foreclosure puzzle that finally dispossesses them of their only home. 

We're of a contrary belief. If you think about it, it makes sense that putting foreclosure cases on a fast-track to trial is just as bad for the banks as it is for homeowners. There's a reason these foreclosure cases have been lingering for several years -- the banks and their attorneys, more often than not, are unprepared to present their case at trial. Maybe they don't have original loan documents in order, or they may not know where such documents are located, or who now has the authority to enforce them (this is why we often see last-minute motions to substitute party plaintiffs or motions to amend complaints). 

Using the fast-track to our clients' advantage has been somewhat of an ace-in-the-hole for Bruce S. Rosenwater & Associates. Since many foreclosing plaintiff's are often unprepared to proceed to trial, we find that this is the ideal time to negotiate beneficial settlements for our clients. Over the past few months alone, we've negotiated several favorable loan modifications for clients wishing to remain in their homes. For other clients who wish to leave behind a severely over-financed home, we've negotiated successful short sales and cash-for-keys settlements. 

If a bank is unwilling to over acceptable settlement terms, we'll gladly proceed to trial. Remember, in many cases, this is not what the bank wants. Bruce S. Rosenwater & Associates will develop a pretrial strategy tailored to each individual client. We'll put pressure on the banks with pretrial motions and hearings. We'll examine the entire history of a case, make note of the bank's weaknesses, and implement a plan of attack for trial. Our pre-trial and trial strategies have resulted in dismissals and awards of attorney's fees for our clients. 

Of course, there are times when the rule of law in foreclosure cases is not followed or applied appropriately. For instance, a case may be scheduled for trial without being at issue, or a judge may grant a final judgment of foreclosure for a bank who presented inadequate testimony at trial. We won't give up on these cases, and we won't stop fighting for your rights. When a case is ripe for appeal, we're prepared to defend our clients' rights throughout the appellate process. 

If you're a homeowner in foreclosure, the fast-track to trial might seem intimidating. We're here to provide the comfort of diligent and experienced representation in foreclosure actions. We're here to put the pressure on the banks, making them prove their case at trial. We're here to fight for you, through the fast-track. 

Wednesday, November 13, 2013

Foreclosure Action Dismissed Prior to Trial

Foreclosures in Florida are becoming increasingly difficult to defend, even for the most skilled defense attorneys who have practiced in this particular area for several years. Pro se defendants in foreclosure who attempt to protect their rights without an experienced foreclosure defense attorney face an even greater challenge. Most pro se litigants in foreclosure are unaware of the many rights they have in a foreclosure lawsuit - or any lawsuit for that matter - and often times, such litigants are put in a helpless and inferior position by the large financial institutions seeking to foreclose on their homes. The message here is simple. Fighting a foreclosure is hard work, and the challenge should not be met alone. It takes a team. It takes the right team.

In 2009, the law firm of Bruce S. Rosenwater & Associates was hired to represent a homeowner in foreclosure, shortly after the initial complaint for foreclosure was filed by the bank. Upon review of the complaint and the homeowner's loan documents, an appropriate and timely response was filed on behalf of the homeowner, and numerous discovery requests were sent to the bank. 

The homeowner survived years of litigation, including a Motion for Summary Judgment which was filed by the bank. The homeowner even pushed back when her attorneys filed, and prevailed on, a Motion to Compel Discovery after the bank failed to serve responses. When the case was eventually set for trial earlier this year, the Court issued a trial order, which detailed several pretrial procedures with which the parties to the foreclosure suit were required to comply. 

While the case approached trial, the homeowner's lawyers at Rosenwater & Associates began filing requisite documents with the Court pursuant to the trial order, and fine-tuned the homeowner's defenses to present to the Court at trial. More importantly, the homeowner's lawyers focused on the bank's activity and conduct throughout the course of the litigation, and noticed several weaknesses in the bank's overall case - failure to provide discovery, failure to comply with an order compelling discovery, failure to comply with the Court's pretrial order, etc. Over the course of four years of litigation, the bank displayed a pattern of non-compliance with the Court's orders, a form of misconduct which Judges do not take lightly.  

The homeowner's lawyers brought the issues of the bank's non-compliance to the Court's attention by way of pre-trial motions filed on the homeowner's behalf. Pursuant to the applicable rules as cited and argued in the homeowner's motions and at a pre-trial hearing, the presiding Judge entered the sanction of involuntary dismissal against the bank. Case over. Homeowner wins. 

It took years of preparation to build this particular homeowner's case. It took strategic action by the homeowner's lawyers to obtain dismissal before the bank was even permitted to present its case at trial. This particular homeowner took action right from the beginning, and hired a law firm with over two decades of experience in defending homeowners against the banks.

If you're in foreclosure, it's never wise to defend yourself against the banks without an attorney. It takes years of experience and knowledge of Florida's foreclosure laws to properly defend your rights. Crafting the appropriate response to a complaint and putting the banks on the defensive is complex work. 

While we cannot guarantee the results obtained for the particular homeowner mentioned in this article, we can guarantee that the same diligence and preparation will be applied to every foreclosure matter that comes through our office. Take action now, and fight the banks before it's too late.