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FRIVOLOUS DEFENSE TO FORECLOSURE CAN COST BORROWER $$$

By
Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

A mid June decision by an appellate court in Florida, the trial court was upheld in sanctioning defense counsel and borrower in a foreclosure action for filing frivolous and unsupported mortgage foreclosure affirmative defenses that delayed resolution of the case.  The court awarded over $20,000 in attorney fees against the defense counsel and another $18,000 in "delay damages" (which was mostly interest on the mortgage note).

Florida statutes require that the $20,000 be split 50/50 with the defendant borrower and the attorney was responsible for all of the "delay damages" (and this most certainly will end up as a malpractice action against the attorney for the borrower's $10,000 liability).  The case can be found at  Korte v. US Bank Nat. Ass'n, --- So.3d ----, 2011 WL 2200678 (Fla. 4th DCA 2011) and is a relatively easy "must read".

Unfortunately, just like the "foreclosure factories" used by the lenders, borrowers are reading about miraculous delays and even some "wins" regarding the "staying in your home without paying your mortgage" popular "solution" to having the value of their home be more than the amount of the mortgage indebtedness.  Defense attorneys find it more expedient to also follow the "factory protocol" of throwing the kitchen sink of defenses into every case.

I represent both borrowers and lenders.  Such kitchen sink defenses are too common, such as the suit to foreclose a commercial loan on a horse training facility in Lee County with no home located on it.  The defense counsel brought Truth in Lending and RESPA defenses.  Neither of these rules and laws apply to commercial loans.  As in the Korte case, we brought in the motion for attorney fees and damages under section 57.105 of Florida Statutes.  My case eventually settled, so we never reached the merits of the issue discussed in the Korte case.  But it is good to know that we would have prevailed.

But the problem here isn't just the attorneys - it is that Borrowers should be realistic and not make demands upon counsel that don't make sense.  Yes, it is the Borrower's attorney that needs to guide the Borrower to those realistic expectations.  Borrower defense counsel should also provide representation that is legally required and legally supported and ......... is designed for not just a short term, but a long term solution for the client.  For example, see my article FORECLOSURE DEFENSE FALLACY .

Throwing in the kitchen sink of defenses against the wall to see what sticks is not proper legal representation.

Copyright 2011 Richard P. Zaretsky, Esq.

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Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 email: RPZ99@Florida-Counsel.com  - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com  NEW Website www.Florida-Counsel.com.

See our easy to understand articles at:

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James Loftis
RealEstate911.com - West Palm Beach, FL
RealEstate911.com

Hello Richard,

  Interesting post, I recommend to all my clients that they have a good Attorney to represent them in there  foreclosure or short sale,

Jun 12, 2011 05:49 AM
Bob Hertzog
Summit Home Consultants - Phoenix, AZ
Designated Broker

Just 2 days ago, our local paper ran an article, talking about attorneys practicing outside the scope of their expertise. The article cited bankruptcy and foreclosure mitigation specifically.  With the down economy we are facing, many attorneys are looking outside their area of expertise, in hopes of making a few bucks.  The AZ Bar Association is aware of this, and frowns upon it big-time.

The article goes hand-in-hand with what you just wrote.  Finding an experienced attorney with a proven track record is a must when dealing with foreclosures/loss mitigation.  Excellent read, as always!

Jun 12, 2011 12:10 PM
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

Richard,

Excellent blog post. There are too many ills running here. Some just offer to drag it for years for just $400 a month

Congrats on the feature

Jun 12, 2011 12:32 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!

Richard- The judges will allow for time to close on a short sale all day long if you have an offer in hand and the homeowner shows the court that they are really trying to get to closing and not just stay in their house without paying. I know the Mr Korte quite well and I know this is what his office most often does. And I will leave it at that.I wonder what they will do now with their thousands of cases they do this with. You are right, it is no different than when the shoe is on the other foot legally. Katerina

Jun 12, 2011 12:45 PM
C. Lloyd McKenzie
Living Albuquerque - Albuquerque, NM
Living Albuquerque

Richard, thanks for keeping us updated on with short sales and foreclosure in the Legal system

Jun 12, 2011 04:25 PM
Steven Cook
No Longer Processing Mortgages. - Tacoma, WA

Maybe this, along with the banks' reconfiguring for better response time, will help move some of these properties off the fence and start getting them cleared, so we can stabilize the market and get things moving again.

Jun 12, 2011 04:47 PM
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

I read your other post too. This should be a warning to homeowners who could end up with more financial troubles than they started with.

Jun 12, 2011 06:51 PM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

I read about this case in the papers.  There's an awful lot of 'lawyers' out there now promising homeowners some results that just doesn't seem to be legitimate.  I like the old adage, if it sounds too good to be true, it probably isn't.

Jun 13, 2011 12:05 AM
Steve Roake
Freedom Group Global - Naperville, IL
Make Moving Easy!

Good post.  Many homeowners believe that they can delay, delay, delay and have zero consequences to not paying the mortgage for 2 or more years.  I have a few short sellers to share this with.

Jun 13, 2011 02:49 AM
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

I could not believe that there are only 9 comments. It is so important... I see some crap generating tons of comments, while it is often much ado about nothing, but agents not learning what is important?

I am reblogging it

Jun 13, 2011 04:48 AM
Deborah "Dee Dee" Garvin
C2 Financial - San Diego, CA
C2 Financial

Richard,  I have to thank Jon for the reblog!  And, he is correct, I cannot believe this was not featured as you have provided some very valuable information for consumers listening to some of the flakey advertisements I hear in the SoCal area!  Thank you for the opportunity to reblog.

Jun 13, 2011 05:27 AM
Gene Riemenschneider
Home Point Real Estate - Brentwood, CA
Turning Houses into Homes

I like the fact that there a sanctions for frivolous law suits.  We need more of those in this country.

Jun 13, 2011 05:52 AM
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Richard the ones that get me are the attorneys who charge $500 or so a month just to prolong things. When in fact they are just postponing the inevitable or giving false hope of a loan mod.

Jun 13, 2011 06:52 AM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Jon - I know.  Sometimes I see 130 comments and I can't figure out why.  On the other hand, my articles seem to get reblogged usually 6 to 12 times or more....... so others are hopefully getting some feedback to.

Bryant - If I ran my practice like that I would be richer - but it is just not my style.

Jun 13, 2011 09:34 AM
Bill Gillhespy
16 Sunview Blvd - Fort Myers Beach, FL
Fort Myers Beach Realtor, Fort Myers Beach Agent - Homes & Condos

Hi Richard,   Very interesting post.  Hopefully some of these abuses and the penalties for them will dissuade others from this tactic.  Well done !

Jun 13, 2011 09:45 AM
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
"It's Wendy... It's Sold!"

Richard - I've linked this on my FB business page, as I have many of your articles. Do you cover the whole state of Florida?

Jun 15, 2011 12:30 PM
Leslie Ebersole
Swanepoel T3 Group - Saint Charles, IL
I help brokers build businesses they love.

I'm with Jon....

Too many distressed homeowners are hanging their hopes on the very slim chance that their mortgage deed isn't properly recorded or that the AG will make those nasty banks go away. Very, very unrealistic.

Jun 16, 2011 05:42 PM
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

The scam artists that advertise "STOP FORECLOSURE" are also the culprits in these cases.

Jun 18, 2011 03:23 AM
Sharon Harris
Keller Williams Keystone Realty - Hanover, PA
Realtor

It is so easy to promise a desperate person the hope they want to hear.Sad that there so many willing to do it.

Jun 20, 2011 01:48 AM
Anonymous
Rock

Mortgage Fraud Examiners exposed thev"Pretender Defenders" in their latest press release http://neighbors.denverpost.com/viewtopic.php?f=215&t=123490692

Jan 26, 2012 11:47 PM
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