Matt Weidner – Fighting With The American People

Archive for December, 2009

For the first time in many years, two attorneys are competing to become the President of the Florida Bar, Ervin Gonzalez of Coral Gables and Scott Hawkins of West Palm Beach.  An article regarding the contest can be found here. The following letter is being published and sent to the candidates by a member of the Florida Bar’s Committee.  Many lawyers that represent consumers are deeply concerned about the unethical practices that are being used to victimize consumers, and those concerned lawyers want to know how or if the Florida Bar is prepared to stand up and protect consumers.

Millions of consumers in Florida have been negatively affected, either directly or indirectly, by the foreclosure  crisis that continues to grip the country and which is concentrated in Florida. Consumers who find themselves in foreclosure are directly affected by the crisis but every citizen is affected as the crisis continues and property values continue to fall.

A contributing factor in the scope and magnitude of the crisis is the fact that mortgage brokers, title agents, con artists and an assorted cast of unscrupulous characters preyed on the unsophisticated and unprotected. True some attorneys may be included among the cast of bad actors, but their numbers are small and all members of the Bar undoubtedly support their prompt dismissal from the ranks of practicing attorneys.

In the midst of this crisis it is widely perceived by those who practice in real estate/consumer law that the Florida Bar has consistently ignored the interests of real estate/consumer attorneys and that the Bar is not doing nearly enough to protect consumers who continue to be victimized by con artists and out of state attorneys who are preying upon them in the middle of this crisis.

Consumers who have been served with a foreclosure lawsuit are aggressively targeted by loan modification companies operating both in the state and from out of state.  Many such firms emphasize their actual or fictitious affiliation with out of state attorneys or law firms then make direct and specific promises that they can absolutely save the consumer’s home and stop the foreclosure process.  I have emailed several of these companies, told them I’m in foreclosure then asked them if I should hire a Florida attorney.  They have responded, “Absolutely not.  You don’t want a Florida attorney, Foreclosure is federal law.  We’re based in California where the lenders are and you need a California based attorney.”  That’s just one example, but this problem is epidemic. The Florida Attorney General’s Office is doing a great job of pursing this problem, but the Florida Bar seems unwilling to address this problem as aggressively as it should.  The reality is that consumers who fall victim to these schemes do not distinguish that the lawyer or law firm might have been out of state, they only perceive that they have been victimized by an attorney.

Although it’s bad enough that the Florida Bar is not being proactive in response to this crisis, I am even more concerned by the Bar’s recent failures to protect our existing scope of practice.  In 2008, the Florida Bar allowed a law to take effect which made it a violation of law for attorneys to represent homeowners in foreclosure or bankruptcy. (See the 2008 version of F.S. 501.1377)  The Attorney General subsequently issued a letter clarifying that while the law did in fact make the practice of law illegal, that was not what was intended.  Was the Bar aware of this piece of legislation or did the Bar simply not understand the issue and allow this bad law to pass?  An attorney exemption was hastily added (See the 2009 version of 501.1377) which reads as follows:

An attorney licensed to practice law in this state who provides foreclosure rescue-related services as an ancillary matter to the attorney’s representation of a homeowner as a client.

This is bad language because it encroaches on the broad scope of practice that attorneys are entitled to if an agency other than the Bar might be asked to determine whether the attorney’s representation is in fact “ancillary” to that attorney’s representation of the client.

While it was disconcerting to me that the Florida Bar would allow a law to pass that made the practice of law illegal in the first place, I am even more concerned that a similar situation was permitted to occur again in the 2009 legislative session when yet another bill with this “ancillary” language passed that once again encroaches on broad scope of practice attorneys have earned.  I wonder whether the Bar fall asleep again or whether this bad law was allowed to pass with the Bar’s consent?  The issue is as follows:

Chapter 2009-241 was signed into law by Governor Crist on June 29, 2009.  This law, which amends the mortgage lending and brokering licensing statute, includes an amendment which again improperly restricts the practice of law and which must be amended.  The 2008 and previous versions of Florida Statutes contained the following attorney exemption:

494.003  Exemptions– (e)  Any person licensed to practice law in this state, not actively and principally engaged in the business of negotiating loans secured by real property, when such person renders services in the course of her or his practice as an attorney at law.

The exemption has now been restricted and reads as follows:

494.00115 Exemptions— (d) An attorney licensed in this state who negotiates the terms of a mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client.

Many attorneys are now actively involved in foreclosure defense and other issues relating to mortgages and real estate.  All exemptions relating to our scope of practice should be broad, unrestricted and consistent throughout Florida Statutes. The exemption should simply read, “An attorney licensed to practice law in this state.”

The thousands of attorneys who are ethically representing homeowners in foreclosure dramatically improve the public’s perception of attorneys and the Bar in general because we serve them in a time of acute crisis and provide service with a value that far exceeds the fees charged.  The Florida Bar should not be allowing any language to pass which encroaches on our scope of practice and it certainly should not allow this be occurring in the middle of an acute crisis.
Every crisis presents an opportunity. The ongoing foreclosure crisis presents the Bar with a unique and powerful opportunity to provide real service to consumers and citizens who find themselves in peril.  What will you do, as president of the Florida Bar, to ensure more laws are not permitted to pass which further encroach on the attorney’s scope of practice and how will you use your position to protect consumers from continued harm caused by out of state attorneys and other unscrupulous individuals?

As reported earlier, the Florida Supreme Court has just mandated that all residential mortgage foreclosure cases be referred to mediation prior to the plaintiff seeking a final judgment.  Importantly a borrower may (and absolutely should) demand that the Plaintiff produce the following:

• Documentary evidence the plaintiff is the owner and holder in due  course of the note and mortgage sued upon.

• A history showing the application of all payments by the borrower during the life of the loan.

• A statement of the plaintiff’s position on the present net value of the mortgage loan.

• The most current appraisal of the property available to the plaintiff.

The borrower must deliver a written request for such information to the Program Manager in the format provided by the Supreme Court no later than 25 days  prior to the mediation session.

The process to require such documents will be worked out as the program develops and borrowers are encouraged to contact an experienced foreclosure defense attorney…contact Matt Weidner at

www.mattweidnerlaw.com

On December 28, 2009 the Florida Supreme Court issued its Final Order and findings relating to residential mortgage foreclosures in Florida.  The full text of the report can be found here. The report notes that,

Florida has the third highest mortgage delinquency rate, the worst foreclosure inventory, and the most foreclosure starts in the nation.  At the close of 2009, it is estimated there will be an inventory of approximately 456,000 pending foreclosure cases statewide.

I am still digesting the information contained within the Order, but the most significant element of the Order, is that all residential mortgages in foreclosure will be referred to mediation.  This is a significantly positive development for homeowners because it will force the lender to communicate directly with the borrower.

Hidden Treasures in the Florida Supreme Court’s Mortgage Foreclosure Order

While I am just in the process of reviewing this 105 page Order to ferret out all the best parts for my clients, I am happy to report that there are several elements included in the report which are going to be very helpful for homeowners.  Look back on this blog often because I will be updating as I find new nuggets of good information for borrowers.  Keep in mind, that I will preserve most of the best bits for my clients….no sense in letting all the good secrets get out there!

Suffice it to say, this Order is great news…to find out how it can help you visit my website at

www.mattweidnerlaw.com

If you’re one of the millions who have not had any luck getting a modification of their mortgage, especially one through Indymac (Now called One West) or Bank of America (Now called Screw You, We’ve Got All The Fed’s Money And We Don’t Need You), you’re not alone.  According to an article on CNN, OneWest has modified 3,605 loans under the president’s program and 14,570 mortgages under the FDIC and other initiatives between March and July. This compares to 16,158 loans adjusted under the FDIC between September and February. See the article here.

Indymac Emerges as OneWest- The Billionaires Already Profit!

Exactly a year ago a group of investors acquired the assets of collapsed mortgage lender IndyMac Bank from the federal government for about $1.5 billion and renamed it OneWest Bank.  The OneWest ownership roster reads like an excerpt of the Forbes 400. It includes J.C. Flowers & Co., an investment firm run by former Goldman Sachs Group Inc. banker J. Christopher Flowers; Paulson & Co., the large hedge fund; MSD Capital, which invests the fortune of computer mogul Michael Dell; and a fund controlled by famed speculator George Soros.

OneWest is already generating hefty profits. For the six months ended Sept. 30th, it posted net operating income of about $700 million, according to filings with the FDIC. In 2007 IndyMac, saddled by troubled mortgages, posted a $614 million loss.  (This comes from an article in the Wall Street Journal)

So, to summarize, the federal government (that’s you and me), bail out Indymac.  The executives who’s judgement put Indymac in such peril make millions.  Then the Federal government sells Indymac to another group of investors who manage to turn a massive profit on the sale immediately.  All the while regular Americans continue to suffer and Indymac borrowers cannot get loan modifications done.

If they’re able to turn such a profit already, maybe they don’t need the loans in the portfolio of assets they purchased to be modified.  I mean, if they’re already making a massive profit with all these loans non-performing….what kind of profits would they make if the loans were modified and performing?

If you have an Indymac loan and need assistance with foreclosure or modification contact my office at

www.mattweidnerlaw.com

If you’re in trouble with your mortgage and seeking a modification from Bank of America for your mortgage, don’t count on it.  As of November, only 4.3 percent of active loan modifications granted by banks under the federal Making Home Affordable Program had been made permanent – a total of just 31,382 loans nationwide. The program, unveiled in early 2009, aims to produce mortgage modifications for 3 million to 4 million homeowners within three years.

BofA has endured some of the toughest criticism for its performance. A U.S. Treasury Department report in November said the nation’s largest loan servicer had made only 98 permanent modifications, while presiding over 158,462 borrowers in trial modifications. More than 1 million of the bank’s home loans are in arrears – thousands in St. Petersburg Tampa area.

If you’ve read my blog in the past you know I’ve been very critical of Bank of America.  I’ve seen first hand how much work and effort clients put forth in providing information and doing everything required of them to take advantage of federal programs that are their right (I mean they’re paying for it right?).  Either Bank of America is grossly incompetent or they know exactly what they are doing and do not care to modify.

START 2010 OFF RIGHT, GET YOUR WILL, POWER OF ATTORNEY

AND

HEALTH CARE SURROGATE DONE NOW!

In case you missed it, today I appeared on Tampa station 860 WGUL, Tampa’s conservative talk leader.  See the radio station’s website here for more information about their lineup.

The topic of todays show was financial planning and retirement advice, with one of  Tampa/St. Petersburg’s most  respected financial planners, Jack Shuten from Coastline Financial Solutions.  Take just two seconds to click on Jack’s website here, where he’s got free information that could save you BIG BIG MONEY in 2010!

The bottom line is no matter your age or your financial circumstances, you need a will, power of attorney and health care surrogate.  I made a special deal to encourage people to have this done early in 2010…visit my website at www.mattweidnerlaw.com for more information!