Orlando Foreclosure Attorney

Orlando Foreclosure Attorney, Joshua F. Porter discusses the changing world of foreclosures in Orlando

Orlando Foreclosure Attorney, Joshua F. Porter keeps a close eye on the recent trends of foreclosure work in Orlando.  This blog post touches on the importance of retaining an attorney that is sensitive to the ever-evolving foreclosure process and the changing needs of homeowners.

Long gone are the days of “undue delay tactics” and other “stall tactics” when it comes to Orlando Foreclosures and Attorneys.

For the past several years, courts have struggled with how to handle the massive expansion of foreclosure lawsuits.  Plaintiffs – the lenders, servicers, and banks – have developed new legal strategies and tactics.  Many of these changes were a result of trial and error and brought on by developments in recent case law.   A successful foreclosure defense requires diligence and an awareness of these changes.

    • For example, often time over the past few years a simple “motion to cancel foreclosure sale” was sufficient to cancel and reschedule a sale on behalf of a homeowner.  This strategy allowed homeowners more time to settle the matter with the lenders or provided homeowners relief as they prepared for moving out of the home.  Changes in court rules and development of case law have made this strategy more difficult.  Many local courts now require more than just an “excuse” to cancel the sale.  Often times, a court will only cancel the sale of a home if the homeowner can provide specific statements of fact as to why the homeowner needs “more time” before the sale of the property.  This type of development in the law requires a foreclosure defense to be more comprehensive.
    • Very recently I attended a court hearing on behalf of a homeowner client in Brevard County.  While waiting for my chance to defend my client, I witnessed two different attorneys state that their client had just retained their services only days prior to the hearing.  Since the attorneys needed more time to prepare a foreclosure defense on behalf of their new clients, the attorneys made the appropriate motion to continue the case until a later date.  The court refused, stating that all parties to the suit must play by the same rules and that the court would not continue the case simply because a litigant (in this case the homeowner) waited until the last minute to retain the services of an attorney.

Orlando Foreclosure Attorney practices and service sometimes miss the mark.  It is important that an attorney recognize changes in which strategies are more likely to be successful and tailor the defense based on those developments.

Foreclosure defense advocates in Central Florida

  • The legal advocacy center of Central Florida wrote an entire manual on “Foreclosure Defense” and you can read that manual here: Orlando Foreclosure Attorney.
  • The manual is an excellent resource to understand some of the concepts in foreclosure law.  The problem with relying on such a manual for a foreclosure defense is that it was written in 2008 and doesn’t reflect the constant evolution of foreclosure defense.  In addition, the rules of civil and court procedure are complex and often pitfalls for the amateur litigant.  These are just two reasons I believe it is important to hire a diligent foreclosure attorney, sensitive to the developments in foreclosure law and capable of personalizing a strategy as it relates to these developments.
  • Other attorneys have also noticed these changes.  Orlando Bankruptcy Attorney Richard Baker wrote an entire article about the change in attitude of judges as it relates to defendant – homeowner rights.  View this Orlando foreclosure attorney perspective and read his article by clicking here.

A quick note about the “bank” tactics in Orlando Foreclosure cases.

It’s an unfortunate twist that Plaintiff lenders, banks, and servicers, are able to allege standing against a homeowner simply by stating the Plaintiff is the holder of the mortgage.  This development is complex, but in my opinion, resulted from the financial and banking industry’s fear it would not be able to prove who owned what mortgage and its desire to skip as much “procedural red tape” as it could get away with.  This decision resulted in numerous violations of due process.  To illustrate, in 1997, the State of Florida, Office of Attorney General filed a report of its investigation into an Orlando foreclosure attorney titled “Assurance of Voluntary Compliance” which reviewed consumer complaints and other information alleging, among other things:

  • Foreclosure actions have been filed before the legal standing of the Plaintiff has been determined
  • Process servers have provided false returns of service in foreclosure actions
  • Unnecessary Defendants, such as John and Jane Doe, unknown tenants and unknown spouses, have been named in foreclosure actions and served with complaint, increasing costs to foreclosure Defendants
  • Forged documents have been filed with Courts in foreclosure actions
  • Affidavits have been filed which were executed by persons without knowledge of the allegations contained in the affidavits
  • Documents have been filed which were notarized outside the presence of the party whose signature was being notarized
  • Summary judgment of foreclosure have been obtained without proper notice

In my view as an Orlando Foreclosure Attorney,  the allegations listed above provide reasonable defense theories to present on behalf of a homeowner. I believe a homeowner defendant should have the right to dismiss a lawsuit brought upon by a “thief.”  The current state of foreclosure law allows a mortgage holder to continue prosecution of its foreclosure lawsuit even if that mortgage holder has no actual right to hold the mortgage.  This requires a homeowner defendant to litigate beyond the motion to dismiss stage.  For this reason, I believe it is important to have an Orlando foreclosure attorney assess and analyze a homeowner’s unique situation before determining the appropriate foreclosure defense strategy.  Additionally, if you would like to discuss in more detail the “ins and outs” of mortgage-holders and their right to sue (hint: research “negotiable instruments” and UCC Article 9), do not hesitate to contact me.

Orlando Foreclosure Attorneys need to be aware of the latest loss mitigation options and programs available instead of solely relying on temporary, procedural delays.

As touched on above, tactics must continue to develop along with the foreclosure law to employ a successful defense.  For example, new programs have emerged that were previously unavailable that may allow a homeowner to stay in his or her home on a rental or permanent basis.

Orlando Foreclosure Attorney Joshua F. Porter stands by willing and able to assist you with your Orlando foreclosure needs.

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