Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. In this issue of the Fishers Law office newsletter we discuss ways of surviving our difficult economic times. If you have any questions about any of the articles in this newsletter please don’t hesitate to contact us.

1. FORECLOSURE RESCUE SCAMS ARE HERE!

We have noticed a trend in which clients who are behind of their mortgages are being improperly charged a fee by foreclosure rescue companies.

Anyone who makes a solicitation or an offer to a homeowner to perform foreclosure related rescue services in exchange for money is called a foreclosure rescue consultant. The consultants often make promises to stop, avoid, or delay a foreclosure of a residence. Such services can also include assistance in curing or addressing defaults with respect to failure to pay a home mortgage.

If you are approached by such a person, be aware that foreclosure rescue consultants are prohibited from charging an up front fee under a recently enacted “Florida’s Mortgage Fraud Statute.” The statute is contained in Florida statutes section 501.1377.

This statute requires that a written agreement be entered into before a foreclosure rescue consultant helps with foreclosure rescue services. Do not pay such consultants money up front. It is illegal for a rescue consultant to charge a fee before completing the rescue.

 If you cannot pay your mortgage call a lawyer and discuss with him any plan of foreclosure rescue before you pay any money to anyone for foreclosure rescue services.

2. OTHER TRENDS IN FORECLOSURE

Question: What is a Motion to Dismiss and how does it apply to a foreclosure case?
Answer: A Motion to Dismiss is appropriate if there is something on the face of the lawsuit that makes it defective. For example, many banks attempt to foreclose on clients’ homes even when the bank does not possess the promissory note evidencing ownership of the debt. 

In addition, if the bank received the note by assignment, the assignments are often not prepared until after the lawsuit has begun. This is improper and such cases should be dismissed.

Question: What happens if the bank loses the note?
Answer: The bank might have a big problem. Banks often lose the note and have no proof the note isn’t being traded in the stream of commerce.  (Some homeowners find themselves being sued by two different banks on the same note!)

Often banks fail to report the loss of a valuable note to the police or to their own staff. These are serious matters and judges are beginning to take notice. For example, Fisher’s law Office recently had a foreclosure case dismissed on behalf of a client where a bank failed to even show up for the Motion to Dismiss hearing!

Question: Should I even attempt to respond to a mortgage foreclosure lawsuit?
Answer: Yes! You only have 20 days to respond to the lawsuits from the day of service. Phone calls to the bank are not sufficient! If you are sued in a foreclosure case seek legal counsel immediately and do not let yourself be defaulted. You may have valid legal defenses to a foreclosure.

3. NEW TRENDS IN DOMESTIC VIOLENCE

Florida’s domestic violence statute is one of the toughest in the nation. If you are living with another person and you threaten or strike that person you could be subject to arrest or having a civil Domestic Violence Injunction placed against you.   

This will prevent you from going near the person, even if the place where that person lives is your own home! If you are charged with domestic violence you should treat the case very seriously and seek legal counsel.

Recently our office was fortunate enough to assist a man who was innocent of domestic violence but was nevertheless charged with a crime.

After working with the state attorney in the case, we were successful in having the case dismissed and the charges were withdrawn.
WARNING: If you are the subject of a domestic violence injunction you can no longer possess firearms and you may have trouble seeking employment with the government. Do not ignore a domestic violence case, as these matters can be very serious.

4. LOAN MODIFICATIONS CAN AFFECT YOUR CREDIT RATING

Fisher’s Law office has noticed a trend in which banks will not even begin to talk to a homeowner about a home mortgage modification until the homeowner has missed at least three payments. During this time the homeowner’s credit rating (the so-called FICO score) is adversely affected, thereby preventing the client from obtaining another mortgage to refinance the first mortgage.

Practice Hint: Before you make a decision to stop making payments on your mortgage you should seek legal counsel and determine what affect this will have on your credit rating and credit score.

Often, even if the modification is successful and your payment is reduced, your credit rating and FICO score may still be adversely affected. You’ve been warned!

AN IMPORTANT TIP REGARDING MORTGAGE LOAN MODIFICATIONS

balances on active loans because of the accounting impact on the rest of their loan portfolio.

Therefore, if your lender offers to simply lower your interest rate or extend the time for you to catch up payments this may not be a real solution. When you begin negotiations regarding loan modifications always ask the lender if it is willing to accept a reduction in principal.

5. WATCH OUT: SHORT SALES CAN RESULT IN TAXABLE INCOME TO YOU!

It’s true. If part of your loan balance is written off as part of a “short sale”, the bank may decide to send you a “1099-C” for the written off amount. The IRS gets a copy of all 1099 forms and expects you to pay income tax on the amount written off in the short sale.

 Unless handled properly this might result in you having to pay income tax on any balance written off. Here are some ways to avoid income tax in this situation:

1. Under the terms of the Mortgage Forgiveness Act of 2007 you do NOT owe income tax IF your home was sold in a short sale BEFORE December 2009.

2. If you are insolvent at the time of the write off you don’t owe income tax to the extent you are insolvent. (Insolvency means your debts exceed your assets.)

3. Generally if the written off amount is in reference to rental property you may find yourself having to pay income tax on the amount written off unless of course you are insolvent and show this on IRS form 982.

4. Before you accept a short sale, see a competent CPA or attorney to determine whether or not you will owe income tax on any amount written off as a result of a short sale on property.

6. NOW IS THE TIME TO UPDATE YOUR WILL

In these perilous financial times clients are realizing that they should be updating their estate plans. If you do not have a will and you have dependants or a spouse now is the time to look at your assets, liabilities, and your estate situation. Fisher’s Law Office offers assistance in writing simple wills and can give advice on matters such as durable family powers of attorney, health care surrogates, and living wills. If you have questions about these subjects, please contact our office.

7. TIPS ON DEALING WITH POWER’S OF ATTORNEY –CASE OF THE MONTH

Problem: Our client’s husband was forced to go to jail. While he was in jail he wanted his wife to have the power to deal with financial matters on his behalf. He wrote a perfectly legal durable family power of attorney giving her authority to make deposits into his bank account for him.

 Unfortunately, the bank refused to acknowledge the power of attorney. The client’s wife came to our office and asked for help.

Solution: Our client’s spouse needed to prepare an affidavit under Florida statute section 709.08 reaffirming the fact that the durable family power of attorney was still in affect and that the person who wrote the power of attorney is still alive. Although the first bank refused to accept the check for deposit even after being presented with the affidavit another bank agreed to do so and our client was able to have his wife accept the money on his behalf to put into his bank account.

8. DO YOU HAVE A UNITED STATED PASSPORT?

If not, you may want to consider getting one now. Many people do not have a positive form of identification that they can use to prove citizenship.

For example, if the city where you were born was destroyed by a natural disaster or attacked by a foreign enemy, do you have a certified copy of your birth certificate or other sufficient forms of identification to prove your status as a citizen?

With a passport you have proof at all times that you are a U.S. citizen, thereby allowing you to apply for social benefits such as social security.

Fisher’s Law Office recommends that all of its clients obtain a passport even if the client does not intend to travel out of the country in the foreseeable future.

9. LEGAL CORNER: WHAT IS A SUMMARY JUDGMENT AND WHAT ARE TIPS ON HOW TO WIN ONE?

A Summary Judgment is simply a short circuit on the normal trial process by which the Plaintiff presents an affidavit that sets forth the truth of all the facts of the lawsuit. If the Defendant does not object to these facts the court will enter a judgment without resorting to a trial. This is often the way in which foreclosure actions are resolved.

However, if the amount due is miscalculated or there are significant matters that are still in dispute such as ownership of the loan or proper notice being given prior to the beginning of the foreclosure, the court has the power to deny the motion for summary judgment and force the Plaintiff to go to a full trial.

The only way for the Defendant to present these facts and create a factual issue is to file an affidavit that truthfully states the issues that are in dispute. Our client recently filed such an affidavit in a case in which proper notice was not given of the default of the mortgage and a bond was not posted with the clerk of the court as required by Florida law.

Education:
       1977
             Degree in Accounting,
                     University of Florida,
                     Gainesville, Florida.
        1978
              License Issued (Currently Inactive)
                     Certified Public Accountant
        1983
              Juris Doctorate Degree in Law,
                     University of Florida,
                     Gainesville, Florida
                     Attorney, State of Florida

Memberships:
Florida Bar Association www.flabar.org
BV rated by Martindale Hubbell      www.martindalehubbell.com
Gaucho Association  www.gauchoassn.com
Aircraft Owners and Pilots Association      www.aopa.org

Fisher’s Law Office, P.A.
18125 U.S. Hwy 41 N., Suite 109
Crystal Lakes Plaza
Lutz, Florida 33549
Tel. (813) 949-2749

Email: ralphfisher@yahoo.com
www.fisherslawoffice.com