Saturday, November 24, 2012

Miami 'As-Is' Foreclosed Condo Buy Comes Complete With Squatters; A Chilling New Trend? Maybe So, As Chance To Score Free Rent, Water, Cable TV Too Tough To Pass Up For Some


In Miami, Florida, WFOR-TV Channel 4 reports:

  • Unmasking suspected squatters isn’t simple because they are turning up in homes that are up for sale.

    It used to be that if you bought a house “as is” you got a great deal. Well, a chilling new trend is to buy the house “as is” and that means complete with squatters inside and it’s the buyers’ responsibility to get them out.

    Christina Malloy is living the nightmare as she buys a condo in Downtown Miami.

    For months, CBS4 Investigates has been following her as she purchases and tries to close on a one bedroom apartment; squatters somehow moved in and keep changing the locks and have figured out how to sneak in and out of the building. “What’s your message to them,” CBS4’s Chief Investigative Michele Gillen asked Malloy. “Get out because I am coming for you,” Malloy said.

    As someone who buys and sells property for a living, Malloy said it’s frightening how often she now comes face to face with squatters.

    I go to open the door and there’s people inside. There’s furniture. There’s beds. There’s personal items,” Malloy said.

    And that’s exactly what she finds when she finally gets to see the inside of her unit and videotapes the possessions of the squatter living there; TV hooked up to cable, a place to eat, but no living room furniture. "I absolutely consider them criminals,” said a property manager who is fed up with the problem.

    He describes them as out of control in multiple buildings decorating our skyline. He asked that we mask his identity to protect his condo’s reputation.

    Some people who have no rights to this property move in, use the free water, use the free cable, destroy property and for what? So they can live for free,” he said.

    For months, CBS4 Investigates has been documenting cases across South Florida where police or banks have been notified that people living in vacant and foreclosed homes or apartments – allegedly – don’t legally belong there.

    They are getting a free ride,” said Miami Commissioner Marc Sarnoff. Sarnoff said the number of absentee owners coupled with banks so slow to foreclose is a recipe for disaster.

    Unfortunately, the police are ill-equipped to deal with this because if someone just shows a document, a quit claim deed, a lease, the police treat it as a civil matter. And then you go before a judge that takes time, you have to hire a lawyer and next thing you know you are months, weeks, sometimes almost a year away to get a person out that doesn’t belong in the property,” Sarnoff said.

    When police are called, squatters often say they are the victims. And, in some cases, they may be victims of crooks posing as realtors or property owners.

    On a recent day, Miami-Dade police were called out to a house in Miami-Dade County to investigate a burglary. The alleged criminal: a mother of two who says she was duped by a make believe realtor who took her money and disappeared after renting her the house – a foreclosure not available for rent.

    She was just so convincing,” the woman said describing the demeanor of a realtor who turned out to be a fake. “Did you write a check?” Gillen asked. “No, I gave her cash,” the woman said. Just hours after this exchange, the woman found herself an efficiency apartment and moved her family out of this house.

    There are some honest victims, usually the ones willing to negotiate with you. They are the ones who say, ‘Do I need to pay’,’” said the property manager. But countless numbers are conning the system and you never know whose property they might move into next.

    You don’t know what they have behind that door. But who knows if they have a gun. Who knows if they are going to attack you. Who knows what I’m going to find. Will I find a dog, will I find drugs, will I find guns, will I find someone dead? I just don’t know,” said the property manager.

Financially Strapped Condo Owner Walks Away From Home, Loan Payments; Returns To 'Un-Foreclosed' Apartment Three Years Later To Find A Foreclosed Neighbor Squatting Comfortably On Premises; Complaints To Cops Fall On Deaf Ears


In Little Tokyo, Los Angeles, KABC-TV Channel 7 reports:

  • What would you do if you left your home only to return to find a stranger moved in, changed the locks and won't leave?

    In 2007, Jeff Cote bought a condo in the Little Tokyo Lofts in downtown Los Angeles, Two years later, he lost his job and could no longer make the payments on his loft. Thinking it would go into foreclosure, he packed up and moved out. Cote left it locked and empty.

    But a few months ago, Cote found out his loft, which did not go into foreclosure, is not empty. A stranger is living in his home and has been for three years. "Memorial Day weekend, I found out a squatter was living in my loft," Cote said.

    Cote said the alleged squatter is Johnathan Glover, who Cote said changed the locks, painted a wall and won't leave.

    Court records obtained by Eyewitness News indicate Glover was evicted from his last two residences. One of those residences is the loft right next door to Cote's.

    "He was evicted from 311 and he moved right into my loft, which is 312," Cote said.

    When Cote found out about Glover, he asked him to leave. Glover said he would and even signed an agreement to move out in August. Cote thought the matter was closed and listed his loft as a short sale. That was several months ago. Since then, the squatter has refused to leave, Cote said.

    Cote filed a police report claiming Glover is a trespasser, but was told there was no evidence a crime had been committed, so there was nothing law enforcement could do.

    Dennis Block, an attorney who specializes in evictions, said by law the rightful owner cannot remove a squatter by force. In most cases, the homeowner has to file a civil action in court, prove it's their property and evict the squatter. That process can take months or even more than a year.

    "I think they're tantamount to being thieves, it's as simple as that," Block said. "Somehow the law doesn't look at them like that, they deem this to be a civil dispute and make a landlord file a civil lawsuit. But it's clean and simple, they're stealing."

    Adding to Cote's problems, no one has been paying the homeowner association dues on his loft and he recently received a bill from the association. The bill is nearly $36,000.
***
  • Glover denies he is a squatter because he claims he makes monthly rent payments of $2,150 to another landlord. When asked for some proof of the payments, Glover said he always pays with cash or a money order, not checks. He also said the rent was last paid in June.

    [Glover's rental] agreement states the payments are to be made to a Thomas Marx with Countrywide Property Management in Citrus Heights near Sacramento. But when Eyewitness News tried to contact Marx, his cellphone number didn't work and his email came back unanswered.
***
  • "The squatter claims he is going to be out about mid month," Coter said. "He told me that via text, although he has told me a lot of lies."

    Over this past weekend, an Eyewitness News producer spotted Glover outside the loft and asked who he was. He denied he was Glover, but later confessed to his identity. Eyewitness News followed him into the loft. He said he was in the process of moving out after three years of living there.

    This week, Cote finally got his loft back and his first task was to get the locks changed.

Dozens Of Confused Rent-Paying Tenants Worry About Possible Pre-Xmas Boot After Discovering Foreclosure Notice Directed To Their Landlord


In Greenville, North Carolina, WITN-TV reports:

  • There was concern and confusion from dozens of apartment residents in Greenville Tuesday after a notice of pending eviction was posted on several buildings. Some said it would mean they need to move out just days before Christmas.

    One resident told WITN he talked to the property management company who said a notice was taken to the wrong apartments, but the sheriff's office says it was posted correctly.

    Resident William Ward looked over the summons posted by the Pitt County Sheriff's Office Monday on the apartment building where he lives on Caldwell Court. It ignited confusion over whether or not he and other residents in the area would have a place to live at the end of the month.

    "You've been paying your rent on time, you don't expect to be left in the dark until the last minute and then boom all of the sudden this pops up," said Ward.

    The papers which include a notice on a foreclosure hearing set for December 4th, names four owners to appear. If the ruling is against the owners, a notice of ejection is also attached that has people thinking they may be removed days before Christmas. The summons lists the debt owed as more than $743,000 to BB&T as of October 18th.

Friday, November 23, 2012

Blind, Disabled Thief Scores Big Win; $.11 On The Dollar Deal Allows Him To Pay $50/Month For 2 Years To Buy Out Of Felony Burglary Charge, Jail Time After Boosting $11K In Property From F'closed Neighbor's Home; Victim Left In Tears


In Paris, Maine, the Bangor Daily News reports:

  • A Rumford man who pleaded guilty to stealing items valued at $11,000 from his neighbor’s house in May will get no jail time.

    Charles E. Hamilton, 47, of 26 Rangeley Place, was given a two-year deferred disposition in Oxford County Superior Court on Wednesday. That means he has to make restitution of $1,200 at $50 a month through the district attorney’s office and refrain from committing another crime, said Joseph O’Connor, assistant district attorney.

    If Hamilton meets those conditions, the case against him would be dismissed after two years.

    That did not sit well with Jodi McKenna, who identified herself before Justice Robert W. Clifford as the single mother from whom Hamilton stole home furnishings and irreplaceable family mementos.

    There were things in that house that can’t be replaced, family items,” said an emotionally distraught McKenna, formerly of 30 Rangeley Place. “It upsets me to no end that someone I trusted could do this to me.”

    O’Connor acknowledged that Hamilton is legally blind and on disability. “Obviously, the amount that would be paid in restitution does not come close to the amount lost by Miss McKenna,” O’Connor said.

    Clifford said the amount of restitution was based on Hamilton’s financial condition. If he fails to meet the obligation, he will face up to five years in prison and a $5,000 fine.

    Twelve hundred dollars doesn’t even come close to what I lost,” McKenna said, starting to sob. “I’m unemployed and trying to support my daughter.”

    The case began Wednesday when Hamilton gingerly approached the judge, sweeping a walking cane for the blind from side to side ahead of him. He stood beside his court-appointed lawyer, Maurice Porter, who told Clifford he and the DA’s office had agreed to a plea deal wherein a felony burglary charge stemming from the May 3 incident and arrest would be dismissed.

    Hamilton pleaded guilty to a felony theft charge and Clifford read into the record a lengthy list of McKenna’s belongings that were stolen by Hamilton.

    They included a ¾-cut diamond ring and assorted jewelry, five rolls of insulation, a cooler, napkins with rings, compact discs, two step ladders, a training potty, a dog dish, a Coleman stove, a boot dryer, tree injections, a lamp, a memory-foam bed roll, a safety helmet, Christmas decorations, three gas cans, two pitchforks, solar lights, a state quarter book with quarters, a 32-inch television set, a Nintendo Wii, a Dell computer, Stihl and Black & Decker weed whackers, silverware, a nightstand, furniture, five blankets, four pillows, assorted children’s toys, Hallmark Christmas ornaments, a scanner, a Hewlett Packard printer, an antique bassinet, a Coleman tent, assorted tools, a pocketbook, a clock, paintings, darts, a Sony video camera, three baskets and a home gym system.

    O’Connor told the court that had Hamilton not pleaded guilty, he would have said that McKenna was forced to move out of her home in January 2012 when a bank started foreclosure proceedings. He said the bank changed the locks on the building.

    McKenna returned this past spring to discover her house had been ransacked and that the thief entered through a broken window in the basement. She contacted Rumford police Cpl. Lawrence Winson, who interviewed Hamilton and got a confession.

    Hamilton, however, said McKenna told him he could take the belongings, which McKenna denied, O’Connor said. Hamilton claimed the door was unlocked; McKenna said the bank locked it up.

Attorney Faces Heat Over Missing Trust Account Cash, Failure To Pay Off Mortgages At Real Estate Settlements; Invokes 'Victim' Card, Pins Blame On Estranged Wife For Allegedly Taking $2M+ Dip Into Closing Proceeds


In Columbus, Georgia, the Ledger-Enquirer reports:

  • A year into a Columbus real estate fallout, the State Bar of Georgia has begun disciplinary proceedings against attorney Michael A. Eddings, alleging a list of professional conduct violations that could jeopardize his law license.

    The bar this month filed a thick formal complaint outlining 10 disciplinary matters that involve hundreds of thousands of dollars diverted from his firm's trust account. The allegations come as federal agents conducted an apparent search of Eddings' north Columbus law office Tuesday, carting off bins of documents sealed with FBI evidence tape.

    Investigators wouldn't comment on their activity at 860 Brookstone Centre Parkway or the prospect of criminal charges, but the seizure seemed to highlight an intensifying law enforcement interest in the firm's dealings, even as Eddings remains mired in civil litigation. Eddings and his defense attorney, Rob Poydasheff, were seen conversing with the FBI, suggesting Eddings has continued to cooperate with investigators.

    The bar complaint and FBI search marked the latest legal turmoil for Eddings, a well-known attorney and business owner whose fall from grace has stunned fellow attorneys and the local real estate community. Over the past year, Eddings, a former Army infantry officer, has seen his caf├ęs and downtown restaurant shuttered and faced a flurry of lawsuits from clients whose lives were affected when Eddings' firm failed to pay off their mortgages at real estate closings.

    "What's frustrating is we've done nothing wrong, but we're the ones that are paying the price," said Christa Humphrey, a former Columbus resident who fears Eddings' failure to pay off the mortgage on her home last year could affect her husband's credit and delay his retirement from the military. "I am a little bit frustrated by it because it is taking so long."

    Eddings, 48, has filed for divorce and blamed his estranged wife for his firm's legal issues, portraying himself as a victim and accusing Sonya L. Eddings of converting more than $2 million from the escrow account. But the bar's 44-page complaint points out Michael Eddings' responsibilities as an attorney.

    It claims he "allowed" improper withdrawals from his trust account and failed to keep "measures giving reasonable assurance that the conduct of non-lawyers employed or retained by him were compatible with his professional obligations." The bar requested a special master be appointed to hear the disciplinary proceedings, and Michael Eddings was given until early next month to respond to the allegations.

    He referred a request for comment to Poydasheff, who did not return repeated messages Tuesday from the Ledger-Enquirer.

    The fallout came to light about a year ago when Eddings' trust account was frozen and he was suspended from closing transactions amid an audit of his finances. Sonya Eddings told the auditors of a title insurance company more than a year ago that she failed to make several payoffs from closings and began, in 2007, transferring "small amounts" from the firm's escrow account to cover expenses for another business.

    Sonya Eddings -- whose current address is listed as "unknown" in the bar complaint -- has insisted that no one else at the firm was aware of her actions. She also is accused of creating false wire confirmations to cover her actions but has not yet been charged.

    First American Title Insurance Company has sued the Eddingses for conversion and fraud, claiming they failed to disburse more than $2 million after various real estate transactions.

    The bar complaint rests on similar allegations, including the case of Humphrey, a typical victim of the missing payoffs.

    Michael Eddings represented Humphrey and her husband, Dustin Humphrey, an Afghanistan war veteran formerly stationed on Fort Benning, when they sold their home in September 2011. According to the bar complaint, the lender deposited about $142,000 into Eddings' trust account, but the firm did not pay off the mortgage on the Humphreys' property.

    Community Bankers Mortgage called the Humphreys in October 2011 asking for the mortgage payment, apparently unaware that the property had been sold. Dustin Humphrey called Eddings' office, the complaint says, and an unidentified employee "knowingly and falsely" told him the payment had been made via wire transfer "and that the situation would be remedied."

    The Humphreys later received notice from Community Bankers Mortgage that a check drawn on Eddings' trust account had been returned due to a stop payment. The complaint says this led to foreclosure proceedings.

    Christa Humphrey, who now lives in Springdale, Ark., said she fears the foreclosure will go forward now that her husband has returned from overseas. A foreclosure likely would mean her husband won't be able to retire from the military in four or five years as he planned, and it could hurt his credit and limit their ability to buy another home.

    "The fact that this could affect his military career is just beyond me," she said. "How could anybody let that happen? It's not the bank's fault, but it's not our fault, either."
Source: Local attorney Michael Eddings accused of professional conduct violations.

(1) The Clients' Security Fund of the State Bar of Georgia (Part X - Rule 10-101 et.seq., Georgia Bar Rules Handbook) was established to reimburse clients who have suffered a loss due to misappropriation or embezzle­ment by a Georgia-licensed attorney.

For similar "attorney ripoff reimbursement funds" that sometimes help cover the financial mess created by the dishonest conduct of lawyers licensed in other states and Canada, see:
Maps available courtesy of The National Client Protection Organization, Inc.

Recently-Disbarred South Florida Lawyer Agrees To Plead Guilty To Trust Account Ripoff Of Cash Belonging To Unwitting Clients


In Fort Lauderdale, Florida, the South Florida Sun Sentinel reports:

  • A recently disbarred lawyer who admits he stole about $1 million — including money from the widow and three young children of a friend who died in an accident — was jailed [] on a fraud charge.

    Scott Rovenger, 59, who practiced in Fort Lauderdale and Plantation, expects to serve eight years in state prison under the terms of a plea agreement reached with the Broward State Attorney's Office, his attorney, Howard Greitzer, said. Rovenger will formally plead guilty to scheming to defraud in the next few weeks and will remain locked up until he has served his full punishment, Greitzer said.

    Rovenger admitted that he stole from many of his clients during the past 20 years and entered into fraudulent and bogus settlements that he lied about, according to a sworn statement he gave to state prosecutors and the Broward Sheriff's Office.
***
  • Rovenger agreed to be disbarred in May after a Florida Bar investigation uncovered a small part of his misconduct — that he inappropriately removed money from one trust account. He was previously admonished in 2009 over a fees dispute with another lawyer.

    Rovenger stole money from another account to settle the case that was questioned by the Bar, court records show. He realized in the past several months that he couldn't keep doing what he'd been doing for years and decided to confess and face the consequences, his lawyer said.

    He confessed and provided sworn statements to former clients and others to try to help them get as much money back as possible from him and a Florida Bar fund that helps repay wronged clients.(1)
For more, see Disbarred lawyer jailed after admitting he stole about $1 million from clients.

(1) The Florida Bar's Clients' Security Fund was established to reimburse clients who have suffered a loss due to misappropriation or embezzle­ment by a Florida-licensed attorney.

For similar "attorney ripoff reimbursement funds" that sometimes help cover the financial mess created by the dishonest conduct of lawyers licensed in other states and Canada, see:
Maps available courtesy of The National Client Protection Organization, Inc.

Thursday, November 22, 2012

State Bar Shuts Down Attorney's Operations In Another Law License Rental Racket Involving Convicted Felon, Loan Modification Ripoffs


The State Bar of California recently announced:

  • The State Bar of California announced [] it has shut down the operations of an Ontario lawyer who allowed his name and law license to be used in a scheme to defraud distressed homeowners.

    The bar obtained a court order [...] to assume jurisdiction over the law practice of Gary David Tracy, 50, (bar # 167212). His firm, known as Realty Attorney Group APC and Realty Group & Consulting LLC, gave false hope to dozens of clients whose homes were already in foreclosure. Many of the clients’ homes had already been sold.

    In return for thousands of dollars in fees, the firm filed shell petitions in U.S. Bankruptcy Court that only delayed the inevitable loss of the clients’ homes.

    The bankruptcy fraud scheme represents the newest variation of the loan modification scams emerging from the housing crisis. Since February 2009, the State Bar’s Office of Chief Trial Counsel has received thousands of complaints against attorneys regarding loan modification fraud. More than 100 attorneys have been disciplined so far, including 22 who have been disbarred.

    Tracy formed an illegal partnership with a convicted felon and abdicated responsibility and control of his law practice to non-attorneys, Deputy Trial Counsels Mia R. Ellis and Lara Bairamian alleged in their petition to assume jurisdiction of the practice.

    The clients in these situations are desperate and in financial turmoil,” the petition said. “They are vulnerable and seeking a lifeline from a legal professional that can save their home.”

    In July, the U.S. Bankruptcy Court for the Central District in Santa Ana sanctioned Tracy $10,000 after it found his firm was responsible for 80 bankruptcy filings, most of which did not identify the firm as the preparer of the petition.

    The State Bar has identified at least nine clients who paid money to the firm and were abandoned. One woman paid the firm $12,400, including an $800 payment deducted from her account after she lost her home and was evicted. Many of the clients had never met Tracy.

    [The] order by San Bernardino County Superior Court Judge Brian S. McCarville authorized the bar to secure the firm’s files, freeze its bank accounts and notify its clients to seek new counsel. Clients who have additional questions are advised to call the State Bar at 213-765-1778.
For the California State Bar press release, see State Bar Shuts Down Law Firm Involved In Bankruptcy Fraud Scheme.

(1) The State Bar of California Client Security Fund was established to reimburse clients who have suffered a loss due to misappropriation or embezzle­ment by a California-licensed attorney.

For similar "attorney ripoff reimbursement funds" that sometimes help cover the financial mess created by the dishonest conduct of lawyers licensed in other states and Canada, see:
Maps available courtesy of The National Client Protection Organization, Inc.

California State Bar Brings Disciplinary Charges In Connection With Attorney Allegedly 'Renting Out His Law License' To Loan Modification Operator In Exchange For Share Of Fees


The State Bar of California recently announced:

  • The State Bar of California has filed disciplinary charges against a Garden Grove attorney accused of taking illegal advanced fees from distressed homeowners and partnering with non-lawyers in a large-scale loan modification scheme.

    Stephen Lyster Siringoringo [Bar # 264161] has been charged with 25 counts of misconduct including collecting advance fees for loan modification services, forming a partnership with a non-lawyer, sharing fees with a non-lawyer, moral turpitude and aiding in the unauthorized practice of law.

    Siringoringo heavily advertised his services in southern California, even though the state Legislature has prohibited the acceptance of advance fees for loan modification work.

    "Mr. Siringoringo's acceptance of advanced fees in disregard of California law is a stark reminder that almost three years after the passage of SB 94, loan modification abuses and fraud are alive and well and that some of the most financially distressed and vulnerable members of the public are still being victimized and exploited for financial gain," said Ashod Mooradian, deputy trial counsel at the State Bar.

    According to the notice of disciplinary charges against him, Siringoringo, 31, first met his non-lawyer partners Alfred Clausen and Josh Cobb, the owners and operators of Clausen & Cobb Management, Inc. (CCMI), in December 2009. Soon after, Siringoringo agreed to allow them to open an office his name in Upland, in exchange for a share of the legal fees it brought in.

    The office, staffed by CCMI employees who operated independently, performed legal services and with met clients without Siringoringo's supervision. The operation generated enough money to open two other locations in Siringoringo's name – in Glendale and Rancho Cucamonga.

    Filed Oct. 10, the disciplinary notice lists at least 23 victims of the loan modification scam, some of them couples. It also accuses Siringoringo of “habitually” disregarding his loan modification practice and misleading his clients into believing he was actually in charge of their cases “when in truth and fact CCMI was in charge and operated the loan modification law practice known as Siringoringo Law Office or the Law Offices of Stephen L. Siringoringo.” The State Bar has placed a consumer alert on his online attorney profile page.

    Siringoringo's case represents the latest in the State Bar's ongoing efforts to combat loan modification fraud. Since February 2009, the State Bar’s Office of Chief Trial Counsel has received thousands of complaints against attorneys regarding loan modification fraud. More than 100 attorneys have been disciplined so far, including 22 who have been disbarred.
Source: Garden Grove Attorney Charged With Taking Advanced Fees From Distressed Homeowners, Forming Partnerships With Non-Lawyers.

See ETHICS ALERT: Legal Services to Distressed Homeowners and Foreclosure Consultants on Loan Modifications for a California State Bar advisory addressing the professional ethics issues arising in relationships between attorneys and non-attorney loan modification operators.

Bar Boot Urged For California Attorney Who Peddled Law License To Loan Modification, Forensic Audit Racket For $250/Month Per Client


In San Francisco, California, the San Francisco Chronicle reports:

  • A State Bar judge has recommended disbarment for a Marin County lawyer who made $177,000 while representing homeowners who were falsely told they could prevent foreclosure by withholding their mortgage payments and suing their lenders.

    Greenbrae attorney Sharon Lapin insists she was unaware of the wrongdoing by US Legal Services, which contacted thousands of distressed homeowners and promised to protect them from foreclosure. She was a contract attorney with the company from August 2009 to November 2010 and represented 130 of its clients.

    But Lapin "caused significant harm to vulnerable, desperate clients, the public and the administration of justice," Judge Lucy Armendariz of the State Bar Court said in a ruling made public Friday.

    The bar immediately suspended Lapin, 57, who has practiced law since 1993. She can seek review from a panel of the court or appeal directly to the state Supreme Court, which must approve all disbarments.

    Meanwhile, the state attorney general's office has shut down US Legal and is suing the company, its owners and Lapin for damages.

    Armendariz said US Legal told owners they could save their homes by suing lenders for predatory practices. Owners were persuaded to pay thousands of dollars for worthless loan "audits" and were often told to stop paying their mortgage and send half of their usual payment to US Legal to underwrite the meritless lawsuits, the judge said.

    The company assigned clients to Lapin and paid her $250 a month per client. But she allowed US Legal to handle the lawsuits, took no action to prevent dismissal of the suits and did not return clients' phone calls, Armendariz said.

    Attorney Richard Lubetzky, who represents Lapin in the disciplinary proceedings, said she filed legitimate suits, did not mislead clients and was unaware that US Legal was advising them to withhold mortgage payments. "She got caught up and became a victim," Lubetzky said.

Wednesday, November 21, 2012

Miniature Swine A Therapy Animal, Says Homeowner After City Nixes Waiver Request To Keep Cuddly 3-Pound Pig; Situation May Be Federal Case In The Making If City Not Careful


In Coral Springs, Florida, the WTVJ-TV Channel 6 reports:

  • Kason Ray smiled big Friday as he played with Twinkie, his pet pig. The 8-year-old boy’s family in Coral Springs considers Twinkie a domesticated lifesaver. “She's very calming to him,” said Heather Ray, whose son has Down syndrome. “He'll scoop her up and love on her and pet on her. He really interacts with her so well.”

    But keeping the pig is against a city ban on livestock. Heather Ray said she was denied a waiver to keep Twinkie, but said she hasn’t been kicked out. "It's important for us to have something for Kason that he feels accepted," Ray said. "This animal loves him no matter what."

    Twinkie helps Kason get through his days. It's something psychotherapist Alina Gastesi-de Armas recommends. "The unconditional love a pet gives them allows them to grow and to have empathy," Gastesi-de Armas said. "People are sometimes not as open to their needs as a pet might be."

    In keeping the pig, the Ray family invokes the American Disability Act, a law that gives civil rights protections to individuals with disabilities that are like those provided to individuals on the basis of race, sex, national origin and religion.

    Even though the city told the Ray family they could not keep their pig, the ordinance hasn’t been enforced, the family said. It is something the family said it is happy about.

    "If we do get fined or get notices to get rid of her, then we will go to the Department of Justice and take it one step further," Ray said.(1)

    Why not get a cat or dog? Kason's father is allergic to them, and Twinkie doesn't make anyone cough or sneeze, the family said.

    In Volusia County, a 2-year-old autistic boy and his family are facing a similar problem – using animals to help cope with everyday life, while breaking a city code.

    "It doesn't take into consideration the uniqueness of each person's situation," Gastesi-de Armas said. "This child obviously has a great deal of fondness for this pet and hopefully people will take that into consideration when they make their decision."
Source: Pig Is Part of Coral Springs Family Despite City Livestock Ban (A Coral Springs family plans to keep their pet pig, even though there is a city livestock ban).

See also, South Florida Sun Sentinel: Twinkie the pig may have to move out of Coral Springs:
  • Convinced the pig was in the best interest of her child, Ray decided she'd deal with City Hall later. She bought the pig from a farm in Texas for $1,300. The pig costs the family about $25 a month for food and vet bills.

    Twinkie is one of nearly 300 miniature pigs sold every year, said Lona Morris, owner of Texas Tiny Pigs in Waco, Texas. She said families with allergies are among her top customers, as well as people looking for therapy animals.

    The city shouldn't consider Twinkie livestock because she wasn't bred for food or clothing fiber, argues Susan Magidson, president of the Society for the Advancement of Pet Pigs in Pennsylvania.

    "That's very sad," she said of the Rays' situation. "Pigs are the finest companion animal ... They cause no illnesses to people, with rare exceptions, they don't bark at night. They are very, very quiet."

    Jerry Brown, spokesman for the federal Department of Housing and Urban Development in Washington, D.C., said if a medical professional prescribes the pig as a therapy animal, then the Ray family might be protected under the Fair Housing Act.(2) Ray said she has a note from her pediatrician.

    Ray argues that pigs are increasingly being used as animal-assisted therapy. Shriners Hospitals for Children in Northern California, for example, has used pigs as therapy.
(1) The inability to make the distinction between a service animal, an emotional support/assistance animal and a household pet can give rise to a very costly legal problem for landlords, homeowner associations, municipalities purporting to enforce code restrictions, etc. Both the Housing Feds, the Civil Rights Feds, and others have shown a high degree of interest when these situations arise. See, for example:
In other cases in which the four-legged animals have prevailed over their two-legged antagonist-counterparts in actions attempting to mischaracterize them as livestock, see:
  • Gebauer v. Lake Forest Property Owners Ass'n, 723 So. 2d 1288 (Ala. Civ. App 1988) (in ruling against a homeowners' association and in favor of a family and its Vietnamese pot-bellied pig, the civil appeals court of Alabama pointedly observed "This is not a case in which a family is treating a farm animal like a pet, such as Arnold the pig of television's "Green Acres" fame. Gebauer bought a breed of pig that is bred specifically as a pet. The breed is much smaller than a farm pig and differs from a farm pig in several respects...");
    ...............................
  • James v. Smith, 537 So. 2d 1074 (Fla. 5th DCA 1989) (under the specific facts of the case, a Florida appellate court concluded that two ponies kept by a landowner were "domestic pets" within an exception to an anti-livestock covenant in a housing subdivision's deed restrictions, and accordingly, were permitted to stay on the premises. 537 So.2d at 1076-77);
    ............................
  • 'The Swine Stays!' Says Judge To HOA; Well-Behaved Wilbur The Pot-Bellied Porker Dodges Boot As Effort To Evict Beloved Family Pet Deemed 'Not Kosher' (homeowners association was successfully sued for threatening foreclosure on a family if they didn't give their family pet, a pot-bellied pig, the boot. Go here for the persuasive arguments, including case law authorities, made by the homeowner in this case; and go here for a deposition transcript from the family veterinarian, who was able to persuasively articulate to the court the difference between a breed of pig that is considered to be a 'household pet' and a regular farm pig that is generally considered 'livestock' - a consumption pig).
(2) Ibid.

Failure To Cough Up Homeowner's $20K Attorney Fee Award For Failed Foreclosure Attempt Leaves Delinquent Bankster Facing Foreclosure


In St. Augustine, Florida, WTEV-TV Channel 30 reports:

  • A local woman is taking on a monster megabank by filing a foreclosure of her own. Wells Fargo tried to take her home. A judge ruled she could keep it and Wells Fargo owes her for the trouble, but the bank still hasn't paid up.

    Rebecca Sharp likes to come home to this house every night. But seven years ago, she thought, that might change. "I was served with a summons pending foreclosure," said Sharp.

    Wells Fargo said she was six months behind on her mortgage. But she fought the foreclosure, and eventually the case was dismissed. The judge also ruled Wells Fargo should pay Sharp. She and the bank settled on nearly 20 thousand dollars for attorney's fees.(1) Eight months later she still hasn't seen that money.

    So, to try and get it, Sharp and her attorney turned the tables on Wells Fargo. "We filed a foreclosure notice to get our client the money she's owed," said attorney Tom Pycraft.

    It was filed against a local Wells Fargo branch down in St. Johns County. "Foreclosure cases are based on borrowers not paying bills. Now, Wells Fargo has not paid its bills. There's an irony there," said Pycraft.
For more, see Local woman wants to shut down big bank.

(1) For more on homeowners scoring thousands in attorney fee awards when successfully fending off bankster foreclosure attempts, see:

Billing Mechanism Allowing For Tax Liens, Foreclosure Over Unpaid Garbage Collection Fees Reaches Georgia High Court


In Duluth, Georgia, DuluthPatch reports:

  • The Supreme Court recently heard oral arguments by attorneys for Robert Mesteller, a Snellville resident who is taking on Gwinnett County about its way of collecting payment on sanitation services. The issue is that the money is collected on tax bills, something Mesteller claims is illegal and unconstitutional.

    The outcome of Mesteller’s appeal won’t be heard for several weeks. However, even if it fails, state Rep. Brett Harrell, whose district includes Snellville and parts of Loganville and Grayson, is also taking on the issue. He is re-introducing legislation in January to prevent municipalities using tax bills to collect anything other than taxes. Harrell said his reason for re-introducing House Bill 291 is not opposition to any particular program, just with the billing mechanism.

    In Georgia, we have non-judicial foreclosure; so, the lien is placed on your home and you are not even afforded an opportunity to stand before a judge and plead your case - again for non-taxes,” Harrell said, adding he had 60 co-signers to the bill when originally introduced. He acknowledges that he does face opposition.

    The associations of Counties and Cities representing corporate government rather than the citizens of those counties and cities are the primary opponents at the capitol. Around the state, the opponents are those elected and staff members that are more concerned with revenue to the corporate government rather than protecting those they serve.”

    Gwinnett County officials, however, say that if either Mesteller’s lawsuit or Harrell’s legislation is successful, the outcome might not be so good for county taxpayers. Joe Sorenson, communications director for Gwinnett County, warns that if the county were unable to bill for solid waste and recovery services via the property tax billing system, it would have to create a new billing system or significantly modify an existing one.
For more, see Lawsuit Win Could Increase Trash Pickup Cost (Gwinnett trash collection back in courts and at State Capitol. County warns outcome of either could result in increased costs for county residents).

Se also, Ga. Supreme Court to Take A Look At Gwinnett Trash Plan.

Conned By Broker Into Taking Name Off Deed, Widow Suffers Heart Attack, Then Boot When Hubby's Unexpected Death Triggers BofA's Reverse Mortgage Foreclosure


In Leavenworth, Kansas, KCTV Channel 5 reports:

  • [T]wenty years ago, Rebecca and Walter Simpson bought a modest home on Klemp Street in Leavenworth, KS, where they could retire and quietly live out their lives. "It was a lovely place and we enjoyed it very much," Rebecca Simpson said.

    The enjoyment faded in the spring of 2007, when the couple's adjustable rate mortgage kicked in and pushed their monthly loan payment to an unmanageable amount.

    When Walter Simpson broke that news to his wife, she says he also promised to figure out a way to keep them afloat financially. "He said we can't make the payments if we don't take the reverse mortgage," she said.

    According to her, he had already talked with a broker who was willing to write up the reverse mortgage. But there was a catch.

    She said the broker refused to do the deal unless her name was removed from the deed. "They said that's the only way we'll do it," she said.

    She said she balked at the idea of her husband's name alone appearing on their property records. She acquiesced after the broker offered a reassuring promise. "If something happened, they would bring the reverse mortgage back to me and I'd have to renew it," she said.

    With her husband insisting a reverse mortgage was the only way for them to make their next payment, she put pen to paper. "I signed away my rights," she said. "And it just became Walter's home only."

    It was a signature she deeply regrets. Less than three years later, on Valentine's Day 2010, her husband slumped over in his favorite chair while watching television. "I gave him mouth to mouth and I just couldn't get him to… he opened his eyes and just closed them back," she recalled. "He loved me with all that was in him, and I loved him."

    Very quickly, the consequences of a reverse mortgage without her name became a reality. According to her daughter, Cynthia Brown, "The ground hadn't even settled on him (Walter Simpson). They sent her that foreclosure letter, 30 days (later)."

    That foreclosure notice, sent by Bank of America, nearly caused a second death in the family. After reading it, Rebecca Simpson suffered a heart attack. "Three days later they were inserting a pacemaker, they had to do it that quick," Brown said.

    Unaware of the reverse mortgage, Brown wrote a letter, from her mother's hospital room in Kansas City, MO, asking the court to halt the foreclosure. Her only answer came during a visit to check on the Leavenworth home.

    Instead of the clean, beautiful house she was expecting to see, Brown said she confronted by filth, cracked toilets, missing heirlooms and bright orange stickers that read "Winterize, do not use." The stickers served as evidence that BOA had already sent a third-party company into the now bank-owned house.

    Brown claims those contractors botched the job, causing unbelievable damage to the home. "So when it came winter, the pipes froze and burst; Destroyed the downstairs," Brown said.

    Even if Rebecca Simpson felt well enough to apply for a new reverse mortgage, Brown no longer believes her mom could qualify. The equity the house once held no longer exists and therefore a new reverse mortgage likely wouldn't cover the cost of repairs. "We don't have the money to fix it. It's a shell of what it used to be. It's condemnable, I think," Brown said.
***
  • Without her name on the deed, her only real option is to hire a lawyer and sue BOA for the loss of and damages to her personal property left in the home when the bank foreclosed. What the Simpson's went through is not supposed to happen.

    Under federal law, the Simpsons should have received counseling before signing anything. Rebecca Simpson doesn't remember any counseling.

    According to law professor and reverse mortgage expert Victoria Duke, a good counselor should have warned Rebecca Simpson about what coming off the deed would mean in the event of her husband's death.

    "Women outlive men," Duke said. "If I had a client in front of me, where the wife is younger than the man, I would absolutely say no. Don't sign away your interest."

    Duke adds that the broker handling the Simpsons reverse mortgage may have been aware of the likelihood of Walter Simpson dying first and the home returning to the bank. Duke said the broker may actually have earned a bigger commission by inking a deal with only Walter Simpson's name on it.

    "That broker may have intent to get that senior to sign up for a reverse mortgage that may not be good for them," Duke said

    Not good is a perfect way to describe the outcome of Rebecca's reverse mortgage.

Tuesday, November 20, 2012

Unresolved Issues May Leave Recent Ohio High Court Court Foreclosure Ruling In Limbo; Losing Bankster Asks State Supremes To Address 'Lack Of Standing' v. 'Lack Of Subject Matter Jurisdiction'; 'Void Judgment' v. 'Voidable Judgment'


The foreclosure litigation in a recent big homeowner victory in the Ohio Supreme Court in Fed. Home Loan Mtge. Corp. v. Schwartzwald is apparently not over as the bankster in this case filed a motion for reconsideration in which it asks the court to clarify certain matters that weren't resolved in the ruling.

From the Motion For Reconsideration:

  1. The Court should clarify whether a plaintiff's failure to prove standing as of the filing of a complaint deprives a common pleas court of subject matter jurisdiction;
    .........................
  2. If the Court in fact held that a plaintiff's lack of standing as of the filing of a complaint deprives a common pleas court of subject matter jurisdiction, then the Court should only apply that rule prospectively;
    ........................
  3. Because Defendants-Appellants Duane and Julie Schwartzwald did not seek a stay of the execution proceedings and the property at issue has since been sold to a third party, the Court should remand this case to the common pleas court to permit Freddie Mac to prove that it in fact had standing as of the filing of the Complaint, and to instruct the common pleas court to only dismiss the case without prejudice if Freddie Mac cannot do so.
From the Memorandum In Support Of Motion For Reconsideration:
  • The Opinion is unclear as to whether the Court intended to hold that a plaintiff's failure to have standing and its inability to "invoke the jurisdiction" of the court deprives a common pleas court of subject matter jurisdiction. That distinction is crucial, as a judgment rendered by a court without subject matter jurisdiction is void (and not merely voidable).

    If the Court did intend to hold that a plaintiff's failure to have standing deprives a common pleas court of subject matter jurisdiction, then the Opinion changed the law of Ohio,and threw into question judgments rendered in literally hundreds of thousands of foreclosure actions (and potentially every judgment ever rendered in this state). If a plaintiff's lack of standing deprives a common pleas court of subject matter jurisdiction, then Plaintiff-Appellee Federal Home Loan Mortgage Corporation ("Freddie Mac") respectfully suggests that the Opinion be limited to prospective application only.

    Finally, following the common pleas court's judgment in this case, Defendants-Appellants Duane and Julie Schwartzwald did not seek a stay of the sheriff's sale, and the property has been sold to a third party.1 The Opinion's dismissal of this case without prejudice leaves the parties in an unusual position. To avoid this case once again being returned to the appellate process, Freddie Mac requests that this case be remanded to the common pleas court and that it be afforded the opportunity to show that it in fact had standing as of the filing of the Complaint.
Go here for the entire Motion For Reconsideration and the accompanying Memorandum in support thereof for the full discussion of the issues as contained in the recent court filings.

Thanks to Deontos for the heads-up on these latest developments.

NJ Appeals Court: Excessive Delay In Raising 'Standing' Issue In State Court Proceeding Fatal To Foreclosure Defense; Judgment Obtained By Standing-Lacking Lender Not Necessarily Void


Law 360 reports:

  • A New Jersey appeals court ruled Wednesday that a homeowner couldn't use standing arguments to disrupt a foreclosure decision after excessive delay, adding that a foreclosure judgment won by a party that lacked standing isn't necessarily “void” under the meaning of a key court rule.(1)
For more, see Delayed Standing Defense Can't Upset Foreclosure: NJ Court.

For the ruling, see Deutsche Bank National Trust Co. v. Russo, Docket No. A-2437-11T1 (NJ App. Div. November 14, 2012) (for publication).

(1) In this regard, the court stated:
  • Based on our reading of Guillaume and Deutsche Bank, we conclude that, even if plaintiff did not have the note or a valid assignment when it filed the complaint, but obtained either or both before entry of judgment, dismissal of the complaint would not have been an appropriate remedy here because of defendants' unexcused, years-long delay in asserting that defense. Therefore, in this post-judgment context, lack of standing would not constitute  a meritorious defense to the foreclosure complaint.

    In reaching that conclusion, we note that, contrary to defendants' contention, standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not "void" within the meaning of Rule 4:50-1(d).

    In the federal courts, standing is a jurisdictional concept, because Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies. See Raftogianis, supra, 418 N.J. Super. at 353 (citing In re Foreclosure Cases, 521 F. Supp.2d 650, 653-54 (S.D. Ohio 2007)).

    By contrast, the Superior Court of New Jersey is a court of general jurisdiction, Swede v. Clifton, 22 N.J. 303, 314 (1956), and in our courts, the requirement that a party have standing is a matter of judicial policy not constitutional command. See DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) ("Unlike the Federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, para. 1.") (Pollock, J., concurring); Salorio v. Glaser, 82 N.J. 482, 490-91, cert. denied, 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980).

    "Because standing affects whether a matter is appropriate for judicial review rather than whether the court has the power to review the matter, and standing is a judicially constructed and self-imposed limitation, it is an element of justiciability rather than an element of jurisdiction." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998); see also Gilbert v. Gladden, 87 N.J. 275, 280-81 (1981) (distinguishing the concept of justiciability from that of subject matter jurisdiction).4

Picture Becoming Clearer On How Banksters Are Skating Out Of Paying Foreclosure Fraud Settlement From Their Own Pockets


David Dayen writes in Firedoglake:

  • This one offers a bit of vindication. I cannot tell you how much grief I got from “official sources” over the clear reality that banks would be able to pay off their penalties in the foreclosure fraud settlement with investor money.

    HUD Secretary Shaun Donovan flat-out said it, and then had to backtrack and obfuscate. But it was clearly set up by the terms of the settlement. Banks would get credit under the settlement for modifying loans in private label mortgage backed securities, which means the investors take the hit.

NM Judge Slams Fastbucks For Locking Borrowers Into Recurring Inescapable High-Cost Consumer Loans; 'Star' Employee Testifies: "We Just Basically Don’t Let Anybody Pay Off!"


Law Professor Nathalie Martin writes on Credit Slips:

  • [T]he New Mexico Attorney General’s office has sued Fastbucks for providing unconscionable loans to New Mexico citizens, both under the common law unconscionability doctrine and the state’s Unfair Practices Act’s unconscionability provision.(1) Read the short, pithy opinion Download Fastbucks decision.

    The court’s opinion, karmatically handed down on Yom Kippur 2012, found that FastBuck steered borrowers into loans that subjected them to higher interest rates and kept them locked into recurring cycles of debt, that the FastBucks entities were experts in the loan products they created, and that these experts demonstrated their superior knowledge of these alternative loan products through their explicit actions to maneuver around the regulation of payday loans.

    The court also found that defendants provided incentives to their representatives for steering borrowers into the more expensive installment loan products and away from less expensive loan products, and for promoting and prolonging recurring inescapable indebtedness.

    One FastBucks employee testified in court that “[w]e just basically don’t let anybody pay off [a loan]…. we tell them how their tax refund is better used at Wal-Mart . . . than at FastBucks, and we basically talk them into making a payment and continuing to be our customer.”

    She said she was congratulated for her approach and used as an example for how other employees of FastBucks could conduct themselves to earn the conspicuous financial rewards.
***
For more, see New Mexico Court Finds FastBucks Loans to be Unconscionable.

For the ruling, see State of New Mexico v. Fastbucks Holding Corporation.

(1) The Unfair Trade Practices Act (UPA) is New Mexico's version of the state laws that prohibit unfair and deceptive acts and practices in trade and commerce (generically referred to as state UDAP statutes).

For more on UDAP statutes across the U.S., see Consumer Protection In The States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes.


(2) See Santa Fe New Mexican: Judge Vigil, just retired, wins $1 million lottery.

Monday, November 19, 2012

Another Homeowner Files Lawsuit Alleging Illegal Foreclosure Lock-Out; Round Up The Usual 'Suspects'


In Chicago, Illinois, WLS Radio 890 AM reports:

  • A former Lake Villa couple is suing Bank of America, claiming the bank wrongfully started foreclosure proceedings and locked them out of their home when the property was supposed to be up for a short sale.

    Plaintiffs Kevin and Christine McKee filed the lawsuit in U.S. District Court Tuesday. They claim Bank of America had filed a foreclosure complaint against their former home in the 3700 block of North Columbus Avenue in Lake Villa, but that the bank agreed to a short sale of the property when they moved out in November 2010.

    The couple and their teenage daughter moved to Florida, to seek medical treatment for Kevin McKee’s injuries from a car crash two years earlier, the suit said.

    The McKees claim that while they were away, the bank went ahead with the foreclosure without notifying them, and sent a crew from Miken Construction to winterize the home and change the locks, according to the suit.

    They only learned workers had been in their home after a neighbor called them saying people were inside their house, according to the McKees, who claim their house was supposed to be secured and shown by realtors.

    Crews allegedly ripped out their new kitchen cabinets and took all of their personal belongings still inside the house -- among them family antiques, sensitive personal information, tax returns and baby pictures of their daughter.

    The McKees have since sold the home, but claim Bank of America still has their belongings. The suit claims the bank had no right to enter their home or send remission crews.

    A spokesperson for Bank of America declined to comment on the pending litigation Tuesday night. A message left for Miken Construction was not immediately returned.

    The suit accuses Bank of America, its subsidiary BAC Home Servicing and Miken Construction of trespassing, conversion, negligence, intentional infliction of emotional distress, invasion of privacy and willful and wanton conduct. They also accuse Bank of America of breach of contract. The suit seeks an unspecified amount in damages, plus court costs.(1)
Source: Former Lake Villa couple sues Bank of America over ‘illegal’ lockout.

For the lawsuit, see McKee et al v. Bank of America, N.A.

(1) For those homeowners who've been screwed over by wrongful lockouts by foreclosing lenders (and their confederates) and seek some possible guidance on how much their cases might be worth if they seek to sue, see:
For examples of filed lawsuits involving illegal bank break-in, "trash-out" & lockout cases, see:

Cash-Poor City Approves Amnesty For Unpaid Code Enforcement Fines; Will Take Conditional $.15 On Dollar To Let Property Owners Off Hook


In Fort Lauderdale, Florida, the South Florida Sun Sentinel reports:

  • Fort Lauderdale property owners who have run afoul of the city's code enforcement inspectors and owe money in unpaid liens may get some relief – at least for a while. A month ago, city staffers proposed a Code Enforcement Lien Amnesty Program, and last week the City Commission approved the measure unanimously.

    The program allows homeowners with unpaid liens to pay only 15 percent of the total under certain conditions. Owe $100,000? You pay only $15,000. A whopping $85,000 is forgiven.

    Conditions include a provision that homeowners must pay for any repairs and renovations that caused the liens, as well as any costs incurred by the city.

    The Code Enforcement Lien Amnesty Program expires June 28.

    The program "will provide the city with a mechanism to clear many old and cumbersome liens from the books," City Manager Lee Feldman wrote in the original proposal. It will "stimulate the sale of many abandoned properties" and "allow homeowners suffering foreclosure to obtain clear title and renegotiate their mortgage."(1)

    The program could also be a way for the city to raise money when it's having cash problems, said Tim Smith, a former commissioner in Fort Lauderdale. "We did it in 2004 to avoid laying off public safety aides. And it makes people come into code compliance. It's saying, 'Here's the carrot. Clean up your house.'"
For more, see City revives lien amnesty initiative.

(1) With regard to a Florida property owner who was living in the subject home at the time the code enforcement fines were imposed, and has continuously made the premises their primary residence/homestead since then, the state homestead exemption from forced sales (under Article X, Section 4 of the state constitution) prevents the attachment of a lien against said home so long as the property remains the owner's homestead. The homeowner still may owe the fines, but that debt is not collectible through the enforcement of a lien, since no lien exists in these cases.

Hopefully, the City of Fort Lauderdale will inform their homestead-protected citizens that the unpaid code enforcement fines relating to their homes don't constitute liens on said homes (fat chance).


For examples where the City of Fort Lauderdale and two other Florida cities disregarded the state homestead law against forced sales and tried to screw their citizens anyway by attempting foreclosure on their homes over unpaid code enforcement fines (and - in the cases of the other two Florida cities - almost got away with it; they conned two of Broward County's snoozing trial court judges into believing the homeowner was not entitled to homestead protection, only to suffer reversal by a state appeals court), see:

Asset-Heavy Mortgage Guarantors & Co-Signers Beware: No "One-Action" Rule In Sunshine State; Foreclosure Judgment-Holding Lenders In Florida Can Opt To Snatch Your Personal Assets Before Setting Date For Public Sale Of Loan Collateral


From the Florida Banking Law Blog:

  • In a typical foreclosure action in Florida, a creditor forecloses the real property first, the court determines the fair market value of the property as of the date of the foreclosure sale (usually through a deficiency hearing under Fla. Stat. §702.06), and then the creditor pursues a money judgment under a breach of note or breach of guaranty count.

    The borrowers and guarantors are entitled to a setoff equal to the fair market value of the collateral, which determines the amount of the deficiency judgment.

    However, creditors sometimes find themselves in a situation where they do not want to, or perhaps are unable to, foreclose the property (e.g. there are potential environmental liabilities associated with the collateral, the collateral is subject to an automatic bankruptcy stay, or the collateral is simply undesirable).

    It may also be the case that the guarantors have assets that a creditor would like to pursue immediately, and the creditor does not want to wait for a foreclosure sale.
***
  • [W]here a foreclosure sale has not yet been set, there is nothing to preclude a Plaintiff in Florida from pursuing its legal remedy first, and then if the judgment is unsatisfied, pursuing the equitable remedy of foreclosure second.(1)

    In [a] recent case, 
    Royal Palm Corporate Center Ass’n, Ltd. v. PNC Bank, NA, [89 So.3d 923] (Fla. 4th DCA 2012), the court expressly declined to set a foreclosure sale date so that the Plaintiff could first pursue, and execute upon, its money judgment before foreclosing the property and before setting a deficiency hearing under Fla. Stat. §702.06.

    In order to ensure that the plaintiff did not receive double recovery, the plaintiff certified to the court that the money judgment had not been satisfied, after which it could elect to foreclose the property.

    Royal Palm illustrates that a creditor does not have to set a foreclosure sale before obtaining and executing upon a money judgment against borrowers and guarantors. This is particularly true where the creditor holds an absolute guaranty.

    Since the ability to execute a judgment is of paramount importance, particularly where defendants are solvent, this case is an important tool for creditors to consider as they evaluate their options in the foreclosure context.
For more, see Creditors Who Want to Execute on a Money Judgment Need Not Foreclose First.

To contrast the apparent rule in Florida that allows a stiffed mortgage lender to seek multiple remedies simultaneously with the rule in California and Michigan that prohibits this, see
(1) Regarding a mortgagee's right to pursue multiple remedies simultaneously, the Florida appeals court stated:
  • It has long been the common law that, to collect money owed on a note, a mortgagee may pursue its legal and equitable remedies simultaneously, until the debt is satisfied. In the early case of Booth v. Booth (1742) Eng. & Wales Chancery, 2 Atk. 242 (3d. ed. 1754), the plaintiff brought an action against the defendant for the accounting of an estate owned by the plaintiff's brother, for which estate the defendant had been the guardian and on which he had obtained a mortgage. Id. at 242-43. The defendant brought the action of ejectment for possession of the estate[2] and, at the same time, an action "to foreclose the equity of redemption."[3] Id. The plaintiff sought a stay of the defendant's ejectment action because of his concurrent foreclosure proceedings. Id. Lord Chancellor Hardwicke wrote, "Though the defendant is foreclosing the equity of redemption here, yet he is not precluded from bringing an ejectment at law at the same time, unless there is something very particular to take it out of the common case."[4] Id. at 243. But because whether the mortgage was already satisfied was in dispute, "it is not quite so clear as the common case," and the chancellor stayed the ejectment. Id.

    More than 200 years later, the supreme court of New Mexico articulated the complete rule, its rationale, and the minority view:

    Under the traditional common law rule, upon default by the mortgagor, a mortgagee has independent remedies which he or she may pursue. The mortgagee may sue either on the note or foreclose on the mortgage, and may pursue all remedies "at the same time or consequently." As long as there is no double recovery on the debt, the mortgagee may pursue either or both remedies. Absent a statute to the contrary, "state courts have uniformly held that holders of notes secured by a deed of trust can both sue the maker or guarantor and foreclose on the property regardless of which action they pursue first."

    The distinction between the two remedies is found in the historic view that a foreclosure action is purely quasi in rem, affording relief only against the secured property, and a suit on a bond or note is in personam.[[5]] A judgment of foreclosure applies only to the property secured by the mortgage, and does not impose any personal liability on the mortgagor. If the foreclosure of the mortgaged property fails to satisfy the debt secured by the mortgage, the creditor may then pursue an action on the underlying note.

    Some jurisdictions have adopted legislation providing for a "one action" rule that requires a mortgagee to file only one lawsuit in which he or she pursues all remedies for a debt that is secured by a mortgage. One of the purposes of such statutes is to protect the mortgagor from multiple lawsuits since the mortgagee's separate causes of action, even though theoretically distinct, are closely connected and should be decided in one suit.

    Kepler v. Slade, 119 N.M. 802, 896 P.2d 482, 484-85 (1995) (footnote omitted) (citations omitted).

    The traditional common law rule is the majority rule in the United States; it has been recognized by the Supreme Court of the United States on at least three occasions.[6] As the Kepler court noted, the jurisdictions that do not follow the rule have statutes that require a mortgagee to file only one suit for all of his remedies (the "one-action rule"), or consecutively.[7]

    Florida is in the majority. Less than a year after Florida became a state, the Supreme Court noted this tenet of the common law without any disagreement in Manley v. Union Bank of Florida, 1 Fla. 160 (Fla.1846). There, a mortgagee argued "that a mortgagee has, at common law, three remedies, all of which he may pursue at the same time, viz: that he may bring suit at law, upon the bond or note secured by the mortgage; institute an action of ejectment, to put himself in possession of the rents and profits of the estate; and file a bill in Chancery, to foreclose the mortgage." Id. at 214. To this, the Court responded, "All this is very true." Id. Even if the Supreme Court had not approved the rule, it would have been the common law of this state by operation of statute.[8]

    We have found no Florida statute, and none has been called to our attention, that would prevent a mortgagee from pursuing legal and equitable remedies at the same time.

    The statute concerning deficiencies, section 702.06, Florida Statutes (2008), is more limited in nature than the statutes in the minority of states. Although the reporters of the Restatement seem to believe that section 702.06 is something of a one-action rule, see Restatement (Third) of Property (Mortgages) § 8.2 cmt. b (1997), neither its language nor its history or purpose support that reading.

    Section 702.06 binds a plaintiff to a deficiency decree once the plaintiff sets the deficiency process in motion, but expressly provides that "the complainant shall also have the right to sue at common law to recover such deficiency," except against an original mortgagor when the mortgage was for the purchase price of the subject property, the original mortgagee buys the property at the foreclosure sale, and the original mortgagee obtains a deficiency decree against the original mortgagor.[9] Not only has PNC not yet started the deficiency process, but the mortgages here were not for the purchase price of the subject properties. If PNC certifies non-satisfaction of the money judgments, it will be bound to the deficiency process and only if the trial courts do not adjudicate the merits of a deficiency will PNC be able to bring separate law actions on the foreclosure judgments for the deficiency.

    With regard to the statute's history, the legislature enacted what is now section 702.06, which took the place of an old equity rule of like effect, to grant a court the power to enter deficiency decrees; "[b]efore the adoption of [the equity rule] in 1873 ... no deficiency was authorized in equity courts, and the only remedy for a balance due was a suit at law."[10] See Letchworth v. Koon, 99 Fla. 451, 127 So. 321, 322 (1930). Section 702.06's grant of such power was designed to "relieve the parties from the expense and vexation of two suits, one equitable and one legal," and to allow "the whole controversy [to] be adjusted in one suit." Edwards, 130 So. at 59 (emphasis added). This is what PNC has done.

    It appears we have not seen these remedies pursued at the same time in the same action because, before 1967, a suit at law on a note and a suit in equity to foreclose a mortgage proceeded in separate courts. In 1967, Florida adopted rules of civil procedure which gave circuit courts jurisdiction to hear cases in which counts at law and counts in equity could be set forth in the same complaint as alternative grounds for relief. In re Fla. Rules of Civil Procedure 1967 Revision, 187 So.2d 598, 600 (Fla.1966); Fla. R. Civ. P. 1.040, 1.110(g). In fact, Rule 1.110(g) provides that claims may be "stated in the alternative," "regardless of consistency and whether based on legal or equitable grounds or both."

    As alluded to by the Kepler court, the reason that an action at law on a note may be pursued simultaneously with the equitable remedy of foreclosure is that the two remedies are not inconsistent. Junction Bit & Tool Co. v. Village Apartments, Inc., 262 So.2d 659, 660 (Fla. 1972). "[P]ursuit of one without satisfaction is not a bar to the other." Klondike, Inc. v. Blair, 211 So.2d 41, 43 (Fla. 4th DCA 1968), approved, Junction Bit, 262 So.2d at 660; see also Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983) (an action on a note and an action to foreclose on a mortgage are not inconsistent remedies).

    Klondike is distinguishable but instructive. In Klondike, the plaintiffs first obtained a judgment on the note, did not cause execution to issue, and never received any payments; over a year after the issuance of the final judgment on the note, the plaintiff sued in foreclosure.[11] 211 So.2d at 41. We reversed a summary judgment in favor of the defendant, holding that the doctrine of election of remedies did not apply because the remedies were not inconsistent. Id. Unlike the plaintiff in Klondike, PNC did not bring separate actions on the notes before pursuing foreclosure. But, the principle articulated in Klondike is broad enough to apply here.

    In light of the common law, the merger of equity and law courts, and the consistency of the remedies, the instant suit at law on the note and guaranties was properly joined with the mortgage foreclosure. Nothing precluded PNC from pursuing its legal remedy first;[12] if the judgment is unsatisfied, the court has retained the ability to set a foreclosure sale. That sequence — money judgments first, foreclosures second — approximates the procedure upheld by this Court in Klondike and the supreme court in Junction Bit & Tool Co., and it is consistent with the principle that an unsatisfied money judgment is no bar to a later foreclosure.

    Defendants rely heavily on Farah v. Iberia Bank, 47 So.3d 850 (Fla. 3d DCA 2010), to argue that PNC was limited to the deficiency process if it sought to obtain judgments beyond foreclosure. However, Farah is factually distinguishable. Though the opinion is light on facts,[13] it appears that the Farah final judgment contained both a money judgment and a foreclosure judgment; the money judgment ordered that "execution issue," and the foreclosure judgment set a sale of the property. Thus, the Farah final judgment simultaneously allowed the plaintiff to execute on the money judgment and foreclose on the subject property, which is impermissible. The third district struck the language "for which let execution issue" from the money judgment and allowed the foreclosure to proceed.

    Unlike the Farah final judgment, the judgments here did not both issue an immediately executable money judgment and initiate the foreclosure process by setting a sale of the property.

    Rather, the judgments set up the procedure contemplated by Klondike and Junction Bit, allowing pursuit of the legal remedies and permitting the initiation of the foreclosure sale process only after PNC certified that the money judgment had not been satisfied. This structure assures that, while PNC was able to pursue both remedies, it will not get a double recovery.