FISHER'S LAW OFFICE NEWSLETTERS
Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today. ~ Click Here For PDF Version ~
Here are some of the latest trends in foreclosure.
Most foreclosure cases follow the following five steps:
1) The homeowner defaults and receives a 30 day notice to catch up the loan or suffer a lawsuit for foreclosure;
2) After 12 months, a lawsuit is filed and a complaint is served on the homeowner;
3) The homeowner’s attorney files a motion to dismiss or an answer to the complaint and raises affirmative defenses;
4) The bank then files a “motion for summary judgment” along with affidavits for the amount due and an affidavit of attorney's fees. The homeowner files an affidavit to establish a genuine issue of fact to stop the summary judgment;
5) The last step is a trial. At the trial the bank representative will come into court and testify about the default and the amount owing. The court usually enters a judgment at the trial and orders the property to be sold at the courthouse in 30 to 120 days later.
What's changed about the process of foreclosure?
What's changed is that banks are increasingly seeking "Deficiency Judgments" against owners of commercial property who default on real estate loans.
Here's how it works:
What happens next? The next step is the collection process in which the debtor must submit to a “deposition in aid of execution” which all of his assets and liabilities are disclosed in a deposition in front of a court reporter. The bank then makes a decision on whether it wishes to seize property from the debtor through garnishment or attachment.
Often the bank will have a writ of garnishment issued and seize the money in the bank account owned by the debtor or seize the wages of the debtor to pay the deficiency judgment.
How can the homeowner stop the seizure of a bank account after a deficiency judgment is rendered?
Florida is probably one of the most generous States in the union when it comes to providing exemptions from seizure of assets by creditors. Some of these provisions include the following:
1) Florida Statute 222.11 exempts wages from garnishment for a head of a family. A head of a family is a person who is providing more than one half of the support for a child or rather dependent such as a wife.
The amount of the exemption in Florida for personal property is $4,000 if the debtor does not have a homestead exemption. Other exemptions include the following: the debtor is entitled to a
Also any refunds from the internal revenue service are exempt from creditors unless the amount is owed for child support or spousal support.
Moral to the story? You may be exempt from having your assets seized, particularly if you are supporting a family in the state of Florida.
What are some unfair things in federal and state law that need to be changed?
This is true even though Florida law makes it a felony to charge over 25% interest on loans. Until the United States federal government changes the federal law Floridians will continue to be oppressed by out of state banks that charge high rates of interest while hiding behind the exemption provided by the United Stated preemption statutes.
Child support goes to the government.
Florida’s child support hearing officers can not award visitation to fathers.
Therefore a father can be found to be indebted for a large amount of child support and yet have no right to ask the court to allow him to visit with the child. In order to do this he must file a counter-claim in circuit court and ask a family law judge to award him visitation or other custodial rights. The average wage earner cannot afford this and is therefore forever precluded from having rights to visit his child. This in another unfair law on Florida's books that needs to be changed.
What do you do when someone dies?
1) Call other relatives and let them know what has happened to the loved one and make arrangements for all relatives to attend the funeral or other service. Also make certain that any pets are taken care of and that no animals are left in a closed home where a deceased person lived.
2) Secure the home where the person lived to make certain that there is no potential for fire or any other hazards on the property where the person lived.
3) Locate the will and give it to an attorney who can file it with the court. Typically wills are filed within 10 days of death with the court.
4) When you seek the advice of an attorney, bring him the following documents:
5) Watch the decedent’s mail to identify any debts or accounts that the decedent left behind.
Case of the month: Our client avoids losing his house to a homeowner association.
Our client fell behind in his payments to a homeowner's association that charged a monthly assessment for upkeep of common areas of the neighborhood where his house was located.
Under Florida law, before homeowner's association can file a lien it must give 45 days written notice to the homeowner of its intention to file the lien and it must give 45 days written warning before filing a lawsuit against a homeowner. In our client’s case the homeowner's association failed to give 45 days notice that it intended to lien his property.
Thereafter when the homeowner's association sued to foreclose its lien it lost the case because of failure to give proper notice.
Moral to the story? If you receive any notices from a homeowner's association pay close attention to the correspondence. Bring the correspondence to your lawyer. There may be a chance to avoid a lawsuit by simply catching up the back payments. On the other hand if you are sued but never received any notices prior to the filing of the lawsuit or the filing of the lien against you then see a lawyer and explain the situation to him. You may not owe the homeowner's association anything. In our case the homeowner's association was required to pay all of our client’s attorney's fees in defending against the erroneous lawsuit.