As most are painfully aware, Florida foreclosures suffered tremendously last year after the discovery of apparent rampant fraud by both lenders and foreclosure attorneys in prosecuting foreclosure actions. Many existing foreclosure lawsuits came to a sudden halt, and new filings dropped significantly. As a result of this, along with the poor foreclosure practices of many large foreclosure law firms, Floridians discovered that it can take up to two years (or even more!) for a lender to foreclose on property. Thus, many homeowners of distressed properties chose not to hire an attorney to defend a foreclosure action, list the property for a short sale, or negotiate with the lender because of the belief that they could continue living in a home for possibly years without paying a mortgage or rent while waiting for the bank to foreclose. Many events are now causing this tide to change. First, in the wake of investigations by both the federal and state governments, lenders and many foreclosure attorneys cleaned up their previously shoddy foreclosure practices, and lenders began hiring smaller firms to file their foreclosure actions. Contrary to popular belief, a foreclosure action in Florida can take as little as 120 days if a lender properly files and aggressively pursues the action. Therefore, better practices and better foreclosure attorneys lead to faster foreclosures. In addition, condominium and homeowner associations are intervening in bank foreclosure actions to compel a speedy foreclosure – and winning. Finally, new legislation is being drafted which would allow lenders to foreclose without going to court in certain circumstances. Further, where a foreclosure lawsuit is required, all uncontested cases must have a final judgment in 45 days. Bottom line – the days of living in a home for years before a lender forecloses are coming to an end.

In last month alone, there was a significant increase in new foreclosure filings in both Sarasota and Manatee courts. In addition, both lenders and the courts are beginning to push the stagnant cases out of the court system. With approximately 45% of all homes in Florida still underwater, we may not see a decrease in foreclosures for quite some time.

It is very important for homeowners who are served with foreclosure papers to seek the advice of an attorney immediately. The owner has a short window of time to respond to the complaint without losing his or her rights to defend the action. In addition, a lender will not stall or delay a foreclosure proceeding simply because the property is listed or under contract for a short sale. For most homeowners, short sale is the best option for distressed properties. Because it can take three to six months (or longer) to close a short sale, the property should be listed sooner rather than later, and the homeowner should defend a foreclosure action to ensure that the property does not foreclose before a short sale can close. Berlin-Patten offers a wide range of foreclosure defense, short sale and other services based on the individual needs of a homeowner. We offer reduced flat-fee rates for foreclosure defense to our short sale clients and can aggressively defend an action if needed.

Did you find this real estate law content useful, but need actual legal counsel?

Speak to a real estate attorney!

, , ,

“Save Our Homes” And Portability

  On Election Day a couple weeks ago, Florida Amendment 5 was approved with strong support. This amendment extends the period during which property owners in Florida may transfer their accrued “Save Our Homes” benefit to a new homestead from two to three years. Beginning January 1, 2021, an owner of homestead property will now…

Jump On The Refi Train, But Don’t Leave Your Estate Plan at the Station

  The mortgage business is booming in many parts of the country with historically low interest rates. However, one often overlooked consideration is the impact that refinancing your home could have on your estate plan. Most of the effect of a refinance on an estate plan will depend on the following factors: 1. How the…

The Eviction Moratorium Impact On Your Next Residential Contract

  As a new investor, Stephen is purchasing his first investment property. He reviews the contract and notes Provision 6(b) is checked, indicating the property is currently occupied by tenants. Great! He thinks I can collect instant rental income. Stephen does not realize, however, that the Federal eviction moratorium is still in effect, and his…

This Is Not A Bill

  Believe it or not, September is here and the football season is upon us!…. well maybe…hopefully? I am more excited than ever for the toe to touch the leather, as it will mean that things are that much closer to getting back to normal, or the new normal. However, all that glitters is not…

The Old Switcheroo!

  You have a Seller ready to list the residence for sale, you’ve confirmed that the Estate of the original owner who passed away has been opened, and a Personal Representative has been appointed by the Court. Your Buyer is an investor who works with a Limited Liability Company (LLC) who wants to buy the…

Prepare Your Buyer/Borrower for the Closing

  With the volume of closings that we have, we handle a lot of different personalities, situations, and behaviors when we go through our closing process. Being aware of these in advance, and perhaps trying to get ahead of the issues, can sometimes make the difference between a happy closing and a dramatic one. 1.…

My soon to-be-ex Needs to Sign What?

  Your friend of a friend from Michigan, Mr. Buyer, tells you he is newly retired, single, and ready to start the next chapter of his life in the Sunshine State, so he reaches out to you as his real estate agent to begin the property hunt. Two weeks later, he has found his dream…

Congratulations On Your Loan Approval… Now What?

Paragraph 8 FINANCING in both the “AS IS” and the “Standard” FR/BAR Contract* is the section of the Contract dealing with financing of a purchase by a Buyer. The purpose of seeking financing is to obtain approval for a loan, thereby permitting the Buyer to close on the Contract. This is defined under the Contract…
selby lights in bloom

Stealing Home

So the contract is signed, the earnest money deposit is in escrow, the lender has approved the loan, the survey is clean, the home inspection reveals no issue, and the closing date is set. What could possibly go wrong? You show up to closing only to find out that the Seller never owned the property! This scenario has…

Relocation to Florida: Looking to your Future, Leaving your Past

We all know about the snowbird, the retiree, the investor, the tourist who asks the question: how do I relocate to Florida, how do I become a resident? Beyond the weather and lifestyle, there are obvious reasons why people want to make that move, including the lack of Florida income and estate taxes, exemptions for property…

Do You Have 2020 Vision for Your Closing?

On behalf of the entire BPE family, we want to wish everyone a Happy New Year. Its times like this where it can be helpful to reflect on the prior year, and since this year is 2020 (presumably the year of “perfect vision”), let’s take a step back and reflect on those instances where the…

Don’t Get Burned By Solar Panels (Or Other Leased Items)

More and more homes are running off the power of the sun these days. Renewable energy has become a trending topic and solar panels are beginning to become prevalent in the state of Florida due to positive environmental impacts and the potential to reduce large A/C bills. Selling a house with solar panels comes with…

Be Thankful You Don’t Receive a Fowl Title Objection Notice

It seems almost obvious, only a plucked turkey would buy property without having a title search conducted to determine if a Thanksgiving feast is in the making, that is to say “title is clear”, or if there are title defects that would render the property unmarketable. This right is provided under the terms and provisions…

Movers and Breakers

Moving day can be an exciting time for many!  However, the thought of moving always causes angst, frustration, and physical/emotional exhaustion.  To avoid most of these emotional and physical moving issues, Sellers and Buyers should research said issues and then eventually hire vetted and reputable moving companies. Moving companies come in all sizes (i.e., National to local) and shapes (i.e., service and costs). …

Survey What, Survey Who?:

A buyer of real property normally is required to procure a survey due to a lender’s requirements. This is not so when a buyer is purchasing real property using cash or private financing. We often see the preceding buyers attempt to reduce their costs by forgoing the cost of a new survey and rely on…

I just noticed something…

Real estate sellers and buyers are often required to provide contractual notices to their counterparties relative to all kinds of different issues.  For instance: cancelling a contract requires timely notice, objecting to title issues requires notice, and financing issues require notice, to name just a few. How does one party provide notice to another?  The…

Standard Or “As Is?” That Is The Question

While Florida law requires no particular form of contract for a real estate transaction, the FR/BAR Contract forms are the most utilized and well-recognized residential contract forms in Florida.  The FR/BAR Contracts, created and approved by a collaboration between the Florida Association of Realtors and the Florida Bar, include two Contract forms: the Residential Contract…

Modern Uses For Life Insurance Trusts

Since the enactment of the Tax Cut and Jobs Act of 2017, the utility of the irrevocable life insurance trust (ILIT) has been in question. The substantial increase in the federal estate tax exemption–$11.4 million for an individual and $22.8 million for a married couple in 2019-greatly reduced the need for estate planning aimed at…

Can I Get A Pre-Nup (Or A Post-Nup)?!?

  With respect to real property transactions, understanding contracts is a daily challenge.  Whether it is a listing agreement, an “As Is” agreement, or even a warranty deed, contracts are at the heart of what real estate agents deal with (outside of the actual clients.)  On occasion, non-real estate contracts will creep into a transaction…

Property Sharing: Yours, Mine and Ours

Many times property ends up having some form of shared ownership. Sometimes it is simply in the form of joint tenants or tenants in common, but sometimes more complex forms are involved such as life estates, ownership through entities or even by agreement (such as a co-habitation agreement). Over the years, statutes and common law…

Delinquent HOA Assessments – Who’s Responsible?

Investors of a foreclosed property often ask if they will be liable for delinquent HOA assessments that came due prior to their purchase of the property from the court.  In 2007, the Florida Legislature chimed in on the issue by passing Florida Statute 720.3085, which states (among other things) that “a parcel owner is jointly and severally liable with the…

Fish in the Pool?! A REO Cautionary Tale

Recently, we encountered a transaction where a real estate investor purchased a REO property, and after closing, discovered tens of thousands in code enforcement liens against the property.  The buyer was never told of the liens prior to purchase and was fully responsible to pay the liens.  It turns out the liens were due to…

Foreclosures on the Rise: Clarifying the Statute of Limitations

In 2013, after the Florida legislature significantly overhauled the foreclosure statutes, new foreclosure filings in Florida nearly came to a complete halt.  Now, however, we are seeing an increase in foreclosure filings, as the banks have modified their procedures to comply with the new statutes.  With this influx of foreclosure filings, we are also encountering…

How Long Does a Lender Really Have to File for Foreclosure?

As any person involved in the real estate industry is well aware, there were hundreds (if not thousands) of foreclosure cases filed in 2007 and 2008 which were dismissed due to improper documentation or non-compliance with Florida’s foreclosure statutes.  Recently, many lenders have been re-filing these previously dismissed cases with better legal counsel or more…

FHA “Back to Work Program”

We all know how difficult it is to financially recover from a traumatic financial loss following a property foreclosure, or even a softer loss following a short sale.  In most cases, a homeowner who lost a property to foreclosure may not be able to qualify for a new conventional mortgage for up to seven (7) years after losing a home.  Under Federal Housing Administration…

The New Foreclosure Legislation is Now Law and Affects More Than Just Foreclosures

On July 1, 2013, many revisions to the Florida foreclosure statutes went into effect. While many of the new provisions are technical in nature and primarily effect attorneys practicing foreclosure law, the overall effect is a dramatic change in the foreclosures process and the rights of struggling homeowners. Also, most of the changes are retroactive,…

House Bill 87 And The Impact Of Florida Mortgage Foreclosures

As you may have read, House Bill 87 (H.B. 87) was recently passed by the Florida legislature and proposes to make significant changes with respect to the Florida Statutes regarding mortgage foreclosure actions.  As of now, H.B. 87 will become new law unless Governor Rick Scott decides to exercise his veto power, which seems unlikely…

Navigating a Short Sale – Tips & Reminders

With the extension of deficiency waiver tax relief, we have seen no slowdown with respect to short sales, and do not anticipate a slowdown in the foreseeable future.  With that in mind, we wanted to remind anyone who routinely handles short sales to consider the following: Do not forget about how critical it is to…

Bank of America Process Changes

Originally Published: 4/13/2012 Several Florida legislature bills, including HB 213, are attempting to make Florida a non-judicial foreclosure state, which would allow banks to foreclose on properties in certain instances without filing a lawsuit or otherwise using the judicial process. This may preclude homeowners from the opportunity to defend foreclosure, which many experts believe is…

Deficiency – What is it and How Much Time Does My Bank Have to Sue?

Originally Published: 3/27/2012 When an underwater home is sold in a short sale or a foreclosure, the greatest concern is almost always over the remaining mortgage balance owed by the homeowner (known as a “deficiency balance”) and how long the lender has to try to collect it.  When a property is sold in short sale,…

How Bankruptcy Can Backfire on Homeowners in Foreclosure

Originally Published: 3/12/2012 Many homeowners resort to filing bankruptcy in order to stop an imminent foreclosure on homestead property when no other legal options are available.  While, in most cases, the mortgage holder can still foreclose on the property, it cannot do so until the property is released from the bankruptcy estate.  This can take…

Foreclosure Update in Florida

Originally Published: 2/7/2012 Several Florida legislature bills, including HB 213, are attempting to make Florida a non-judicial foreclosure state, which would allow banks to foreclose on properties in certain instances without filing a lawsuit or otherwise using the judicial process. This may preclude homeowners from the opportunity to defend foreclosure, which many experts believe is…

Bank of America Short Sale Seminar Summary

The Berlin Patten short sale negotiating team recently attended a Bank of America Short Sale Seminar.  The following is a brief summary of what Bank of America advised its seminar’s attendees:  Short sales are about two primary things to Bank of America:  Hardship and net proceeds Investors are reluctant to postpone foreclosures as the buyer…

Response to Anonymous Blog Entry: Title Agents should still not be conducting short sale negotiations

On or about September 30, 2011, an anonymous reader provided a response to a blog Berlin Patten had sent to its readers regarding who can or should be engaged in the negotiation of short sales. While we debated whether or not to further comment on the subject (as the blog response did not really specifically…

Short Sale “Pre-Approvals”

We are frequently asked about listings being marketed as “pre-approved” in the MLS. We suspect this designation is intended to imply or suggest that there can be a quick closing.  We feel that the use of the term “pre-approved” can be misleading and lead to unrealistic or false expectations. Other than a pre-approval under HAFA,…

Short Sale Negotiations

We have been asked by several real estate agents to investigate whether or not a title company or title agent can conduct short sale negotiations. One of Berlin Patten’s contacts at the Florida Department of Financial Services, Bureau of Investigation, Title Services, responded to our inquiry as follows: “The license for a title insurance agent does not…

Fraud Investigation – A Top Priority for Freddie Mac

In previous blogs, we have discussed our concerns about short sale fraud and the warning signals to watch for.  According to Freddie Mac’s Mortgage Fraud Officer, Short sale fraud has also become the top priority for Freddie Mac’s fraud investigation unit as well. Per the attached article, recent trends that Freddie has been alerting Real…

Assignable Contracts & Specific Buyers

Please be advised that short sale lenders are getting very strict about approving the specific buyer identified on the contract. As such, lenders are carefully scrutinizing assignment provisions in contracts. Short sale lenders who are reviewing contracts (that permit the contract to be assigned) are kicking back the contracts more and more frequently.) Lenders are…

Berlin Patten’s Short Sale and Bankruptcy Services

Real Estate professionals are frequently confronted with listing a short sale property encumbered by two or more mortgages and a seller who is strongly considering bankruptcy as its “exit strategy.” We have struggled with that same scenario… working on a short sale for months, and then the seller decides to file for bankruptcy. At that…

HAFA Policy Changes for Servicers

Lenders’ inconsistent eligibility requirements seem to be the most consistent thing we have seen with respect to the Federal Government’s HAFA (Home Affordable Foreclosure Alternatives) Program.  The Federal Government seems to have taken notice. On August 9, 2011, the Home Affordable Foreclosure Alternatives Program adopted certain policy guideline changes.  The changes, we presume, are in…

The Importance of a Municipal Lien Search

Performing a municipal lien search is crucial when purchasing property in this day and age. In many cases there are unknown or undisclosed fees, costs or other issues that will impact a buyer post-closing. In addition a municipal lien search generally will assist a seller in complying with contractual terms to avoid a default. Examples…

Short Sales – Working with Second Lenders

Anyone who works with short sales knows that it can be very difficult to get short sales approved when there is a second (or even third lender). To successfully complete a short sale, ALL lenders (among others) must agree. The problem is that in many instances, they do not. In fact, we have seen situations…

A New Buyer Can Be Substituted for One Who Walked

We have learned of a very interesting development with respect to Bank of America. Bank of America has advised that it will permit a new buyer to step into the shoes of a buyer who has walked away from a transaction.  Furthermore, Bank of America has advised that the process will not have to begin…

Deficiencies and Deficiency Judgements

We spend a great deal of time counseling prospective short sale sellers regarding the advantages of attempting to pursue a short sale rather than allowing their property to go through the foreclosure process. Many people do not realize that the foreclosure process is a two step process. The first step is the sale of the…

Bank of America Realtor/Broker Listing Agent Certification – Questions and Answers

The new Bank of America Realtor/Broker Listing Agent Certification (the “Certification”) has fostered some significant concern among real estate agents. The most common questions and our comments/responses are as follows: 1. Question: Does paragraph 1 of the Certification mean that Bank of America will not pay a commission. Answer: No! Bank of America never paid…

Wells Fargo Short Sale Addendum

As expected, Wells Fargo has followed suit with Bank of America and has put out a new Short Sale Affidavit (attached hereto). Similar to the agreements recently published by Bank of America, Wells Fargo appears to be getting more aggressive in trying to curb flips and low offers and is now requiring realtors and closing…

Bank of America Document Warning

Please be advised that Bank of America is now requiring the parties to a short sale transaction to execute certain form documents before they will consider your short sale for approval. The buyer and seller will be required to execute a new addendum, and somewhat interestingly, the agents involved in the transaction will also need…

Nonlawyer Assisting the Short Sale Seller: Ministerial Acts or UPL?

As you know, short sale negotiations (and negotiators) are coming under great scrutiny by local and federal authorities. There are significant new disclosures for non-attorneys, and now the Florida Bar is weighing in on the subject. In essence, various proposals under consideration by the Florida Bar suggest that a great deal of the short sale…

FTC Issues New Rules for MARS

The Federal Trade Commission (FTC) has issued new rules that might impact real estate practitioners who represent clients involved in short sale transactions. The Mortgage Assistance Relief Services (“MARS”) regulations define anyone providing services which assist or attempt to assist the consumer in negotiating a short sale as a “MARS” provider. Depending on certain factors,…

Foreclosure Sales Moves to the Web

Starting July 14, 2009 Karen E. Rushing, Clerk of Court and County Comptroller, will offer a web-based service that sells Sarasota County foreclosed property on the internet. If you wish to participate in the Realforeclosure online service, proof of publication and sale fee must be received in the Clerk’s Office no later than 5:00 p.m.…

Fighting Foreclosure

There are differing opinions concerning homeowners who contest foreclosure proceedings in an effort to continue to stay in their homes without making mortgage payments. A recent article in the Sarasota Herald Tribune offers one perspective. The article titled “Fighting a foreclosure may beat the alternative” written by Tom Lyons reads “Staying, it appears, can be…
Menu