Matt Weidner – Fighting With The American People

Archive for August, 2009

I currently represent hundreds of homeowners who are either in foreclosure now or who are close to being in foreclosure.  I require that every client participate in efforts to get their mortgage modified or push the lender for the deed in lieu or short sale offer they are requesting.  Almost two years ago my clients began complaining that they couldn’t get through to their lenders or they were forced to wait on hold and transferred around or that they would send in or fax their paperwork numerous times, but were told time and time again that their paperwork wasn’t received or lost.  I will admit that at first, I thought my clients were not trying hard enough or were not following directions…I know for certain now that the vast majority of my clients have been and are working hard to try and negotiate a mortgage modification with their lender, but that the lenders are either totally incompetent or are not interested in providing a mortgage modification.

If one or two clients were having a problem getting their paperwork straignt with one or two different lenders that would seem to be an isolated problem and one that could easily be dealt with.  The problem is virtually every one of my clients reports the same problems with dozens of different lenders they are dealing with.  I now require my clients to keep a log or written record of all their phone calls and proof of delivery of documents.  For some the logs go on for page after page.  On hold for half hour then disconnected…transferred to a foreign sounding worker who didn’t have any record of my file…no record of prior payments made….no record of the trial modification the lender had already sent out and accepted payments from.  The number of clients that report such problems with so many different lenders suggests that this is a massive problem with the systems the lenders have sdet up to process these things.

What concerns me most is if the lenders are unable to manage the paperwork associated with reviewing a file for modification, how in the world are they ever going to manage the payments and accounting of millions of homeowners if they do get a modification in place.  The reality is that without a massive overhaul of the lender’s existing systems, they will not be able to efficiently or accurately process the current and future requests for mortgage modifications.  As a result, a homeowner should consult with an experienced real estate attorney to assist them in the mortgage modification process.

For more information, visit my website at www.mattweidnerlaw.com.

As hundreds of thousands of foreclosure cases are being filed against homeowners in Florida, it’s time to take a moment to ask the question, “Does the company who has filed the suit even have the right to file suit againt the homeowner?”  If the lender who originally sold the mortgage to the homeowner is the same party that is now seeking to foreclose, chances are pretty good that the homeowner owes the money to that lender and accordingly, that lender probably has the right to file a foreclosure against the homeowner.

In the vast majority of foreclosure cases filed however, the Plaintiff who filed the lawsuit did not sell the original loan to the homeowner and in many cases the homeowner has never made a payment to the company suing him and has never even heard of the company that is suing him.  In these cases it is absolutely essential that the homeowner, his attorney and the court ask the important question, “Does the company who filed this foreclosure lawsuit have the right to sue the homeowner?”    In most foreclosure  cases, a copy of a mortgage is attached to a poorly drafted lawsuit which makes the general allegation that the Plaintiff owns and holds the note and mortgage.  Shockingly in the vast majority of foreclosure cases the copy of the mortgage and the general allegation are the only two things brought before the court a the time the lawsuit is filed.

The disturbing thing about this practice is that the mortgage that is attached to the lawsuit is a public record and anyone in the world can print up a copy of that mortgage, staple it to a poorly drafted lawsuit then file suit against an uneducated consumer. Unfortunately several appelate cases, two recent and others from decades ago, suggest that a company need not be in posession of documents that prove their right file foreclosure at the time they file the case.  The most recent and frequently cited case is WM SPECIALTY MORTGAGE v. SALOMON, 874 So.2d 680 a 2004 case from the Fourth District of Florida.  In this case, WM Specialty filed a foreclosure case against a homeowner on December 3, 2002.  In discovery an assignment of mortgage suggested that the assignment was executed on November 25, 2002, but the notary signature was not signed until January 3, 2002.  Based on this fact the Defendant sought to have the case dismissed on the grounds that as of the date of filing, the Plaintiff did not own the mortgage and thus was not entitled to foreclosure against the homeowner.  The appelate court ruled that while the formal assignment of mortgage may not have occured until January 3, 2002, an “equitable assignment” of the mortgage occured prior to filing suit and thus WM Specialty had the right to file suit on that date.  While there are many things I find troubling about the WM Specialty ruling, I find it particularly interesting that the only other case the court uses to support this ruling is a case called Johns v. Gillian, a Florida Supreme Court case from 1938!  1938!

The practical result of the WM Specialty ruling is a law firms engaging in the pattern or practice of filing suit against a homeowner prior to being in posession of any real proof that the Plaintiff has the right to file the suit.  Sometime later an assignment of mortgage may be produced, but there are often some interesting elements to those assignments that can prove problematic for the Plaintiff if you know exactly what to look for.  There are also interesting distinctions between WM Specialty and Johns and the facts that are presented in many of today’s foreclosure cases that may permit an experienced attorney to use these cases against the Plaintiff!

Stay tuned for more information, or visit my website at www.mattweidnerlaw.com to learn more!

Several reliable indicators suggest the US may be pulling out of this prolonged recession and as a result it may indeed be time to consider purchasing real estate if you’ve been sitting on the sidelines. Having said that, and regardless of what is happening with the larger economy, you’ve got to buy smart.
Some of the indicators of an improving economy include a reduction in the contraction of the country’s Gross Domestic Product. Second Quarter GDP fell only 1%, its slowest pace in a year and far less than the 6.4% contraction in the first quarter of 2009.
Other signals include the July Case Schiller Home Price index which shows moderating price decline in most metropolitan areas including the St. Petersburg Tampa market.
If we are indeed experiencing a rebound in the larger economy these next several months will be critical for those who are considering purchasing real estate but who have been sitting on the sideline. The bottom line is the pent-up demand for housing will unleash a massive purchasing frenzy the moment recovery is confirmed.
There are still incredible deals to be found, and there will be for some time, but taking advantage of these opportunities takes the skill and experience that only a qualified real estate attorney and realtor who knows the market bring to the table.
If you’re on the sidelines but are ready to get in, the time is now…contact my office directly at www.mattweidnerlaw.com for more information.