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Foreclosure Defense Florida

An Anecdote from an Insider

Philosophically, every law firm is different in how they approach defending foreclosures. This office does not believe in “free houses.” We believe that we, our clients, and the banks should all be working towards a reasonable resolution. So much so that our office requires in our retainer agreement that our clients work with their bank. Of course, we also offer our help to work with the banks to reach a non-judicial resolution.
 
I could name numerous attorneys, even the vilified bank’s attorneys, that are willing to go above beyond to help to help homeowners stay in their home . The problem is that these efforts, while appreciated, are too rare.
 
This post is written to provide an anecdote in support of our philosophy of reasonable resolutions to cases. This anecdote is based off of a recent mediation that i attended.
 
Facts:
(1) Client owed $100k on the house
(2) Client received a check from an insurance (sink hole) payable to her and the bank for $140,000.00. Client indorsed over the check two years ago to the bank when $10,000 in fees and costs had accumulated
(3) Now, two years later the bank has amassed an additional $20,000 in fees
(4) Client’s house is now worth $40,000
 
My client recognized that she committed a wrong two years ago. She recognized that she owed $110,000 to the bank. She then presented the bank with a check for $140,000 in order to satisfy her mortgage. That should have been it, the bank should have cashed the check and returned the remainder to my client.
 
The problem: the bank did not cash the check. Instead, it let that check (and the other checks that my client sent into the bank) expire. Now, two years later, the bank is trying to collect an additional $20,000 in fees.
 
In this instance, my client would have been better off if the bank had just taken the money it was owed two years ago. I will also argue, that the bank would have been better off doing so.
 
The bank in this example failed to mitigate its damages, that is, it contributed $20,000 to damages by failing to accept the money from my client when offered.   In non legal terms, failure to mitigate damages means that the because the bank could have reduced its damages two years ago, and refused to do so, the court will not hold our client accountable for those additional costs. The court in Juvenile Diabetes v. Rievman, 370 So.2d 33 (Fla. 3rd DCA 1979) held failure to mitigate damages “does not defeat the plaintiffs’ right to recovery, but only reduces the amount of his recoverable damages.”
 
The bank was much better off with the check paying off the mortgage, than the sink hole damaged house worth $40,000.00.
 
As stated earlier, we always encourage our clients to work with their bank to reach a reasonable resolution to their foreclosure. However, when one party is being unreasonable, it is an impediment to a resolution in foreclosure cases, it balloons court costs, and it unreasonably wastes our judicial system’s resources.