Foreclosure Defense

Published on: March 31, 2023

Avoid Foreclosure – Be Aware of New Amended Procedure That Will Act as a Gag Order

I know I posted about this before, but it bears repeating as I fear many homeowners will lose their home to foreclosure if they don’t know about this very important rule change last summer.

Important new change for opposing MFSJ for those living in Florida. Don’t expect to just show up at the hearing and argue — this rule will prevent anything you say from helping you.

Take a look at the 4^th Circuit case which I believe is the first ruling on the amended MFSJ rule. Page 4: https://www.4dca.org/content/download/839898/opinion/212397_DC05_06082022_101625_i.pdf

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Published on: March 29, 2023

Mortgage Company Billing Errors – Merely Transferring the Account Does Not Eliminate Legal Responsibility

By Christie D. Arkovich, P.A.

Some borrowers run into trouble with their mortgage companies that is not of their own doing. One thing the mortgage servicer likes to say is that it isn’t their problem, the prior servicer handled that – and the borrower is still in default or owes some fee.

However, the subsequent servicer has liability for this.

State v Family Bank of Hallandale, 667 So2d 257 (Fla. 1st DCA 1995) is a case that can be used to show subsequent servicer liability: The law is well established that an unqualified assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned.

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Published on: March 23, 2023

Facing a Foreclosure Filing? Don’t Go it Alone.

By Christie D. Arkovich, P.A.

Supposed a foreclosure lawsuit is filed against you. You file an Answer. The plaintiff files a motion for summary judgment quickly. New civil procedure rules require a homeowner to file his or her defense 20 days before a hearing. Most people are unware of that rule and lose. Even if they show up at the hearing, if they didn’t file their defenses to the MFSJ 20 days prior, they cannot raise any defenses. This is even if they had already filed an Answer when they were initially served. This is only one problem a homeowner could face in a foreclosure proceeding.

“I can’t imagine someone going through it without legal help, because I know how it was for me,” said Philip Jackson, a retired Clearwater police detective who has been involved in a long-running legal fight with St. Petersburg stemming from a foreclosure lawsuit the city brought against him in 2019.

Published on: November 21, 2022

Surprise surprise — The Exit from Forbearance Can Get Messy!

By Christie D. Arkovich, P.A.

While it took longer than I and many other consumer advocates thought, the house of cards is starting to slip finally. Many mortgage companies did not fully disclose exactly what would be required once the CARES Act expired and mortgage payments would resume. I’m sure many homeowners have claims out there but don’t realize it. These consumer claims are no small thing and can be leveraged for better mortgage terms than what is being offered. The CFPB is going after Carrington with a big fine — but a private action will result in actual damages for the homeowner.

CFPB Takes Action Against Carrington Mortgage for Cheating Homeowners out of CARES Act Rights

The Consumer Financial Protection Bureau (CFPB) is taking action against Carrington Mortgage Services for deceptive acts or practices under the Consumer Financial Protection Act in connection with mortgage forbearances, according to a CFPB press release. The CFPB found that Carrington failed to implement many protections, provided to borrowers with federally backed mortgage loans who were experiencing financial hardship, during the COVID-19 public health emergency. The CFPB found that Carrington misled certain homeowners who had sought a forbearance under the CARES Act into paying improper late fees, deceived consumers about forbearance and repayment options, and inaccurately reported the forbearance status of borrowers to the big three credit-reporting companies: Equifax, Experian and TransUnion. The CFPB is ordering Carrington to repay any late fees not already refunded, repair its faulty business practices, and pay a $5.25 million penalty that will be deposited into the CFPB’s victims relief fund.

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Published on: June 22, 2022

Chapter 13s – Easier to File Now Due to Debt Cap Increases

By Christie D. Arkovich, P.A.

If you have significant debt but have been told that you cannot file a Chapter 13 consumer bankruptcy, now you can file bankruptcy and not risk dismissal by the U.S. Trustees office. This change occurred because the Bankruptcy Threshold Adjustment and Technical Corrections Act was signed into law yesterday. Prior to this Act, someone with high debt was forced into a Chapter 11 — which is extraordinarily expensive and time consuming for the average consumer. A Chapter 13 is much more cost-effective and efficient to reorganize someone’s finances.

While the name of this Act is thoroughly boring, it is very practical and necessary. This Act fixes a recurring problem that has reared its head more in the past year than ever before. Student debt has reached such a high number for many borrowers, that it was actually preventing someone from filing bankruptcy to address that student debt, or even to get rid of ordinary household debt or stop a foreclosure.

Now the debt limit for an individual filing a Chapter 13 is $2.75 million and the Act also removes the distinction between secured and unsecured debt. This new law is temporary and will sunset on June 21, 2024. So basically, this means that if you wait two years to file, you will NOT receive the benefit of this debt increase and may again, be prohibited from filing bankruptcy.

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Published on: May 19, 2022

Foreclosure and Deficiency Reporting on Credit Reports

By Christie D. Arkovich, P.A.

A mortgage servicer called a “furnisher” for purposes of credit reporting is responsible for updates to a borrower’s credit report. Many times following a foreclosure, there is a limited time for the lender to seek a deficiency judgment. Here is Florida it is one year. If a year goes by, and the lender fails to seek a deficiency judgment then it waives the amount it is still owed after the foreclosure sale of a home.

Here’s the good news: If a lender fails to report a deficiency as having been eliminated, discharged or abolished, it is then reporting inaccurate information. This inaccurate reporting opens the door to the furnisher’s liability under the federal Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq., (the “FCRA”) per the Ninth Circuit (California) in a recent case. Gross v. CitiMortgage, Inc., 20-17160 (9th Cir. May 16, 2022).

This case is being compared to a leading contempt case, where the Supreme Court in Midland Funding LLC v. Johnson, 137 S.Ct. 1407, (2017) found that a debt collector who filed a proof of claim in a bankruptcy that was obviously barred by the statute of limitations did NOT engage in false, deceptive, misleading, unconscionable, or unfair conduct so there was no violation of the Fair Debt Collection Practices Act. While this decision involved a different set of circumstances and a different law, it is clear that these two views could be considered as inconsistent.

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Published on: April 8, 2021

What to Expect When Mortgage Forbearance Ends?

By Christie D. Arkovich, P.A.

The CFPB stated today “[w]e are at really an unusual point in history. I don’t think anybody has ever before seen this many mortgages in forbearance at one time that are expected to exit forbearance all at one time.”

No kidding. This may be the calm before the storm type of thing if mortgage servicers don’t get it right when all these forbearances end.

Living in Florida sometimes it seems like the pandemic is firmly in our rearview. While we are still working from home, it’s mostly because we want to be part of the solution, and can get our work done with our cloud server. But people are out and about pretty regularly now.

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Published on: February 16, 2021

Foreclosure moratoriums extended once again to end of June (but only for federally backed mortgages!)

By Christie D. Arkovich, P.A.

Today, President Joe Biden is extending a moratorium on home foreclosures for federally backed mortgages until June 30, after previously setting the expiration date at the end of March. Biden also announced the expansion of a mortgage relief program, pushing the window to request mortgage forbearance until the end of June.

You can check our resources page under “Foreclosure Related” to see if your mortgage is federally backed here. Just type in your property address under Freddie, Fannie or MERS to discover who owns your mortgage.

For those who have private loans, there is no mandated federal moratorium. You may be covered under a local or state moratorium though.

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Published on: June 16, 2020

Smoothing the Rough Edges in Interpreting COVID forbearances for mortgages and other liens

By Christie D. Arkovich, P.A.

Some creditors and loan servicers are jumping the gun in pursuing foreclosures, HOA liens, COA liens. The federal government is also taking the position that it’s okay to pursue cases already in litigation. We had to file a motion to abate arguing that the moratorium preventing involuntary collection activity includes cases already in litigation — which is well supported by case law.

None of these things should happening while the moratoriums are still in place. For mortgages and tenant evictions in Florida, that means we are in a holding pattern until July 2 when the foreclosure and eviction moratorium is set to expire. This includes actions on other liens as well. Florida Statute Section 702.09 defines mortgages to include HOA and COA liens so they have to put things in park, same as other traditional mortgages.

It also appears that certain banks are not honoring mandatory forbearance requirements — if you have received any messages, letters or phone calls re: SPECIAL FORBEARANCE options, please reach out to us asap to help make sure that this goes smoothly.

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Published on: May 15, 2020

Local Insight Provided about the CARES Act on May 20 next week!

By Christie D. Arkovich, P.A.

Webinar: Why you should care about the CARES Act

May 20, 2020 at Noon

The Tampa Bay Bankruptcy Bar Association will be hosting a FREE Webinar via Zoom on May 20, 2020 from 12:00 to 1:30pm. Why you should care about the CARES Act and its impact on Student Loans, Foreclosure, Collection, and Consumer and Business Bankruptcy. Christie Arkovich, Jake Blanchard, Nicole Mariani Noel and Chapter 13 Trustee, Kelly Remick, will discuss provisions of the stimulus bill that expand or create options for Debtors in Chapter 13 cases as well as Small Business Debtors under Subchapter V and many more. Panelists will also discuss foreclosure, forbearance, collection and student loan impacts. No cost to attend. This will be a live webinar and will not be recorded. Register here.

Couldn’t come at a better time now that things are hoppin’ a bit more! I encourage our colleagues to register for local insight to help represent our clients the best we can in these trying times