Summer/Fall 2010
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. Gathering information about your rights will help you. If you have any questions the articles in this newsletter please contact us.

Case of the Month - Bank caught committing foreclosure fraud against our client

Our client was sued in a foreclosure action. The bank suing our client was not the same bank that the client borrowed money from.

As it turned out, when the first bank transferred the loan to the second bank the assignment of mortgage was fraudulently “back dated” to make it appear the transfer had occurred long before it actually did occur. 

Because of the commission of fraud on the court, the judge dismissed the bank’s foreclosure case, struck the assignment and awarded attorney’s fees to our client.

Moral to the story? If a bank claims to own your loan, have your lawyer verify whether it is true on not. Have your lawyer obtain the documents (contracts, correspondence, canceled checks, etc) proving that the loan was really transferred to the current bank before the lawsuit began.

4) Typically the bank claims that it lost the application and other information submitted and it must be resent to the bank 3 or 4 times.

5) At some point a Trial Modification is agreed upon. This trial modification can last for up to three months. During this time payments are made under a changed schedule.

Important Note: Most of the time the lender will require that all taxes and homeowner’s insurance premiums be escrowed and paid as a part of the monthly mortgage payment. This can cause mortgage payments to actually increase, not decline.

6) If the trial modification is successful, it is made permanent. Such modifications can last the life of the loan but often have a limited life such as three years. Typically, papers are signed and the homeowner stays in his home.

Modifications are quite difficult and homeowners become disappointed by banks when they refuse to accept modification offers. The government is offering cash incentives to lenders and “loan servicers” to accept modifications, so be persistent and maybe you will be lucky and have your modification accepted.

What Happens to a tenant who rents a home that is in the foreclosure process?

Answer: The tenant has certain rights that the foreclosing bank must respect. Specifically, the Tenant Foreclosure act of 2009 requires that prior to a lender obtaining a “Writ of Possession” after a foreclosure sale, it must file a Motion with the court

detailing the name and the address of all tenants on the property. Under the law, all tenants must be given the greater of  (90) days or the remainder of the lease before they are evicted.

There are exceptions: If the lender plans on living in the home, the tenants must move sooner. Also, if the tenant occupies the foreclosed property under a “month to month” tenancy, the court can order the tenant to leave immediately.

Remember, after a bank buys the property on the courthouse steps, before it can obtain a Writ of Procession it must file a motion with the court requesting a Writ of Possession. The lender must disclose in the Motion for Possession, the name of the tenants and give the tenants sufficient notice so they can be heard.

The judge will generally allow a tenant to remain in the foreclosed home for at least (90) days or the length of the lease whichever is greater.
Note: The tenant must continue to pay rent during the time that he possesses the property.

Is a “strategic default” on your mortgage in your future?

Several of our clients whose homes are now worth much less than the mortgage balance have made a decision to simply stop paying their home mortgage. “Why should I pay for a house that is upside down by $100,000”, was one explanation a client gave.

Before our client went into default we recommended he consider the following:
1) Are you willing to have your credit adversely affected?

2) Are you current on your other bills?

3) Have you discussed your decision with your spouse and other members of your family?

4) Do you have another place to live that is cheaper than your current mortgage payment?

Strategic Default is a reality in Florida today but the decision to do so should be made after full deliberation.

Anyone getting a divorce needs to understand Florida’s “Equitable Distribution” Laws.

For example, Florida Statute section 61.076 governs distribution of retirement plans upon dissolution of marriage. This law states that all retirement pensions profit sharing and annuities and deferred compensation and insurance plans are marital assets. These assets must be divided between the parties by the court.

Additionally, if a couple has been married for more than 10 years and one is a member of the armed forces then court has the power to specify a percentage of the military member’s retirement benefits that shall be paid to the Non- Military spouse.
More on Marital Distributions in Divorce

FL Statute Section 61.075 deals with equitable distribution of marital assets and liabilities in divorce. This law states that marital assets must be equally divided unless either the husband or the wife submits a claim for unequal distribution of marital property.
Under this law, the court can make an unequal distribution of marital property based on a list of factors that included the following:

1) An unequal distribution can occur based on the special contribution to the marriage by a spouse including the care of children.

2) Unequal distribution can occur due to economic circumstances of the parties or the duration of the marriage.

3) Unequal distribution of marital assets can occur because of interruption of personal careers or educational opportunities of the other party.

4) The court can also make unequal distribution based on the desirability of retaining an asset or an interest in a business intact and free from claims of the other party. The court can also make unequal distribution based on the desirability of retaining a

residence for a place for children to live. Lastly, the court can make unequal distribution if a spouse has wasted or depleted assets within two years of filing a petition.

The court considers marital assets to be all assets acquired during the marriage and can also include the increase in the value of non-marital assets resulting in effort to either party during the marriage.

Practice Hint: Determining marital assets and liabilities and the value thereof can be quite tricky and parties should seek the assistance of a legal counsel if marital assets or liabilities exist at the time of divorce.

If You Use a Debit Card-Watch Out!

Fisher’s Law office has noticed a disturbing trend in which users of debit cards are being defrauded and banks are refusing or delaying reimbursement of the money stolen from customer accounts.

Places where your debit card can be misused include gasoline stations, convenience stores and other establishments. Once a vendor gets the debit card information on the electronic strip from your card, they can take money out of you account.

Under U.S. Federal Law, if you do not report the loss within two days the bank does not automatically have to reimburse you for the loss. If, other the other hand if you use a credit card, then you are only obligated up to $50.00 of charges if fraud is committed against you.

Moral to the story? Avoid the use of debit cards if possible. Use cash instead. If you must use plastic use a credit card to better protect yourself in case of fraud.

NEW Lead Paint Law hits U.S. homeowners hard! You are hereby warned

The United States Environmental Protection Agency (EPA) has enacted new rules regulating work on homes build before 1978. Under the new rules, if your home was constructed before 1978 the EPA requires strict lead safety practices when renovations are made to your home. Beginning April, 2010 contractors working on such buildings and homes need to invest in lead testing

kits, plastic sheeting, respirators and protective clothing. Certification for lead safety practices costs over $300.00. Under the law at least one employee on every job site must be certified in Lead Safety Practices.
It is estimated that the new EPA ruling will add 10% to the costs of home renovation projects. This applies to any home renovation project including replacing windows, painting, roofing and other work on older homes.

HEALTH ALERT: Watching too much TV may be bad for your health

According to an article in the Wall Street Journal, a person that watches television for more than four hours a day has an 80% increase risk of death from any cause.

What is it about television that is so deadly? Inactivity is associated with television viewing. To give yourself a longer life expectancy, consider turning off your television.
How can you defend against suits for old credit card debts?

Our client had health problems and stopped paying on his credit card in 2001. Almost ten years later, another company that claimed to have purchased the debt sued him.  Most people feel helpless in such situations but our client fought back. He raised the following defenses:
1) The statute of limitations under F.S. chapter 95 had run in 2006. He also showed that the amount of interest being sued for constituted usury under Florida law.

2) No notice of assignment was ever given to the client as required by F.S. section 559.715. (Absent this, the case must be dismissed.)

3) The company couldn’t produce anything the client had signed evidencing that a credit card account ever existed. The Plaintiff also couldn’t show proof that they had purchased the debt and owned the same.

4) In the end, the case was dismissed. And the Plaintiff had to pay our client’s attorney’s fees.  Moral? See a lawyer if you’re sued on an old debt.

Education and titles:
             Degree in Accounting,
                     University of Florida,
                     Gainesville, Florida.
              License Issued
                     Certified Public Accountant
                       (inactive as of 2009)      
              Juris Doctorate Degree in Law,
                     University of Florida,
                     Gainesville, Florida
                     Attorney, State of Florida
         2007 Certified Plumbing Contractor-Florida

Florida Bar Association
BV rated by Martindale Hubbell  
Gaucho Association

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