“Adequately Protecting” the Property Owner from Foreclosure

Mortgage foreclosure defense lawyers have an obligation to be truthful, fair to opposing counsel, help expedite litigation properly, and only bring meritorious claims. However, for some time now I’ve argued that such an approach has never meant you short-change your client in the zealous representation of their case.  In particular that is true where there is no shortfall of true, fair, legitimate, meritorious defenses and/or counterclaims that should be litigated in the courts to ensure that property owners’ rights are protected, all defenses are raised, and “due process” is ensured so the legal system works as intended.  It is the foreclosure defense lawyers’ responsibility to obligate lenders to “prove their case” and thereby assure the burden is where it belongs – the plaintiff.  Considering the amount of missing notes, forgeries, fraud in the process, and failure to follow basic corporate law, “due process” requires this zealous approach.

This approach continues to pay dividends for “defending” property owners.  For some time now, I have argued that under Chp. 673 (673.3091(2)), a court is only empowered to recognize a “lost note” count when the court feels the person is “adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument.”  (These “lost note” counts appear in a majority, if not all, complaints filed today.)  And, as a practical matter, since there are so many lenders routinely failing the courts would best serve to meet that standard by requiring the plaintiff bank to post a bond to insure against another holder of the original note showing up looking to enforce the obligation against the property owner.  Otherwise, the inherent risk is shifted to the property owner who might then find themselves forced into paying their mortgage twice!  (I’m sure that was not the intent of the statute.)  Miami-Dade Circuit Court Judge Jennifer Bailey understood this risk-shifting dilemma.  In a past case, while the lender admitted having lost the note to the property, the judge willingly granted the lender’s motion for summary judgment and sale of the property.  However, the court order also required the lender to post a $414,000 bond to indemnify the homeowner in case another lender filed a second claim against the owner.  What happened next makes the point clear: the lender did not post the bond and proceeded with the foreclosure sale, giving the lender title to the property.  Subsequently, after defense counsel filed a motion to overturn the sale, Judge Bailey dismissed the foreclosure case “with prejudice”, cancelled the mortgage lien against the property and ordered the lender to return title of the property back to the homeowner.  End-result?  The lender is prevented from again suing the homeowner for foreclosure.  Period.

This case is clearly significant and again proves the obvious: homeowners have true, fair, legitimate, meritorious defenses and/or counterclaims that should be litigated in the courts to ensure that their rights are protected.  Today’s mortgage foreclosure defense lawyer appears to be making case law every month.  And by doing so, homeowners willing to fight to preserve their rights, now more than ever, have a better opportunity to protect their financial future.

Carlos J. Reyes  is the Principal of Reyes Law Group. He has been a member of the Florida Bar since 1988 and practices state-wide.  Carlos has been awarded a rating of “AV Preeminent” which is the highest possible rating in both legal ability and ethical standards by Martindale-Hubbell – a well-recognized legal resource. The RLG Legal Team also include attorneys Stephan LopezMelissa J. UlloaPhillip A. Ortiz and the RLG Legal Support Team to bring you a dedicated, experienced and dynamic legal team to handle your legal needs.

We also assist clients in the areas of: Civil LitigationReal Estate LitigationResidential Purchase & SalesCommercial Acquisitions & SalesResidential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationShort Sales NegotiationsLoan ModificationsCriminal DefenseCivil Rights ClaimsFamily LawCorporate Work, and Labor & Employment Law.

Call us for a FREE consultation at (954) 369-1993. Se Habla Español.

Visit our firm website ReyesLegal.com and review our credentials.

We are located at 150 S Pine Island Rd #210, Plantation, FL 33324


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Reyes Law Group

Reyes Law Group represents clients in a multi-disciplinary legal practice involving real estate transactions and litigation with a “footprint” that covers the State of Florida. Over the firm’s first 10 years, Reyes Law Group has closed over $100M in commercial closings, representing buyers and sellers in contract negotiations, due diligence, and the related title review and policy issuance related to closings. In litigation, the firm has commercial litigation experience focused on prosecuting or defending claims such as breach of contracts, partition actions, trade secret violations, and breach of non-competes. However, our firm’s MAIN FOCUS is assisting asset and loan portfolio managers, investors and private lenders with a “ 4-PILLAR APPROACH” to the legal challenges they face with non-performing assets: 1) LOAN WORKOUTS; 2) COMMERCIAL FORECLOSURES (across the State of Florida); 3) COMMERCIAL EVICTIONS; and 4) REO COMMERCIAL CLOSINGS.30+ years’ legal experience means - WE CAN HELP!

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