ALL ABOUT FORCLOSURES

What You Should Know About Foreclosures in Florida

One of the most important things for a homeowner to understand is that if you have been served with a summons for foreclosure, you are being sued. As in a game of tennis, once the ball is served, the other player must react and return the ball or lose the game for sure! In civil court, the party that brings the lawsuit is the Plaintiff and the person being sued is the Defendant. In a foreclosure case, the lender or bank is the Plaintiff and the homeowner is the primary Defendant. South Florida foreclosure defense Attorney John M. Howe is an experienced business litigator and is prepared to put those skills to work for you.

In this game, and it is anything but a game, the Plaintiff has the burden of proof. This means that when a foreclosure case is defended, the lender must prove every element of its case by preponderance of the evidence. To prove its case, the bank must come forward with admissible evidence to prove that:

Foreclosure is when a lender utilizes the courts to obtain forced sale of real property pledged as security for a debt or mortgage because the borrower defaulted by failing to meet the repayment terms contained in the loan agreement and promissory note.

Lenders typically file foreclosure actions after a borrower misses three to five payments in a row. Attorney John M. Howe knows that lenders file foreclosure for two purposes:

1. To force the homeowner to resume making payments on their mortgage (this would be the bank's first choice); and/or
2. To obtain judicial sale or possession of the property so that the real estate can be sold and the proceeds used to reduce the loan balance.

Banks are generally not in the business of buying and selling residential real estate. The bank does want your house. The bank wants your money or somebody's money to reduce the outstanding balance on their non-performing loan that is probably upside down.

You are not powerless to take on a large bank! Banks often make mistakes, and more and more have been caught cutting corners and fabricating necessary documents. By now, most Americans know that lenders made foolish loans to people they knew would not have sufficient income to repay the loans once the short term "teaser rate" was over or once the A.R.M. (adjustable rate mortgage) adjusted. Greedy lenders hoped that prices would keep going up forever so that if the homeowner could not pay the mortgage they could easily re-take and sell the property, payoff the loan, and make a loan to the new buyer.

Attorney John M. Howe knows that most of the cases that the lenders win are won by default. By the simple act of filing an answer a default can be avoided. In cases where the Plaintiff does not obtain a default there are only two ways for the bank to prevail:

1. By getting summary judgment; or
2. Proving its case at trial.

Why you should contact South Florida Foreclosure Defense Attorney John M. Howe

What most Americans do not know about is the mistakes the banks made in the process of selling the loans from bank to bank. In many cases the bank or mortgage broker was in such a hurry to sell the loan that proper formalities with respect to the sale and transfer of the loan were not complied with. In other cases the mortgage was bought and sold multiple times and as it was transferred from bank to bank and ultimately to a collateralized mortgage trust, the original note was lost. Now, because the lender has lost the note it lacks the critical evidence needed to prove its case. To make matters worse for the lender, many of the banks and mortgage brokers who previously owned the note (and might have it in their files) have closed or merged with other banks.

Homeowners might think they face a huge financial institution with unlimited wealth, but the truth is that the bank is only as strong as the weakest link in its chain. The banks have tens of thousands of foreclosure cases pending in Florida Courts. In 2008, over 40,000 cases were filed in Miami-Dade alone. In 2009, there will be over 100,000 foreclosure cases filed in the tri-county area of Dade, Broward and Palm Beach counties. In Collier, Lee, and St. Lucie counties, the percent of homes in foreclosure and the ratio of foreclosure cases filed per local judge is even higher. The law firms that represent the banks have been overwhelmed with cases and have had to hire dozens of attorneys, many of whom have little litigation experience. The enormous case loads being handled by the bank's attorneys means it is difficult for the attorney to devote a substantial amount of time to any one case. As such, bank lawyers often focus their attention on their easy cases against unrepresented homeowners in an attempt to pick the "low hanging fruit."

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