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Did The Lender Have The Right To Foreclose: The Standing Issue

All legal cases begin with an injured person and a responsible party. This is true whether you are talking about a car wreck, a breach of contract, or a criminal matter. In order to seek recovery for an alleged wrong, the person filing a lawsuit must have standing to do so. This legal term of art means that the person or entity suing has the right to do so, either by being the injured party or by holding a contract or other piece of paper that gives legal rights. When determining whether a lender has standing to file a foreclosure, several factors must be present.

This issue first came to forefront of the legal landscape right here in Florida. In 2007, when foreclosure rates were at an all-time high, important information about lenders’ foreclosure practices came under heavy scrutiny. To recap, the issue was as follows:

● Evidence was uncovered showing that lenders were having employees sign affidavits to start the foreclosure process without having any actual knowledge of the loan status. This was the so called “robo signing” scandal.

● Many lenders were not actually in possession of any obligatory documents that would give them the right to enforce payment. Without a right to enforce payment, there is no right to foreclose the mortgage.

● Most foreclosing plaintiffs were merely servicing loans, and not entitled to accept payments. This was problematic because only the entity entitled to payment has the right to file a lawsuit for nonpayment.

While many lenders have changed their practices, there are still untold numbers of instances where a foreclosure is initiated by a plaintiff without the right to do so. If you have questions about whether the entity suing you for foreclosure has standing to do so, you should challenge the entire procedure. Doing so requires requesting to be shown the original note and that the plaintiff was in possession of the note prior to suing you. This process requires careful legal analysis and the assistance of a skilled legal professional.

If you are being foreclosed on and believe the case is wrongful, call our office for help. We will review the facts of your unique circumstances and develop a strategy that fits the facts. Call a Plantation, Florida debt relief attorney today for more information.

Was The Foreclosure On My House Wrongful?

Losing your home deals a harsh blow to your family. With the massive increase in foreclosure filings in recent years, more and more courts are taking extra special care to make sure the foreclosure is done properly and without glitches. If you believe the foreclosure on your home is wrongful you can and should challenge its validity. Doing so will ensure the process proceeds as it should and that the result is correct.

Florida foreclosures, like every other state, should only be initiated by the lender that has the right to take back possession of the home. Common errors made by foreclosing lenders include:

● Foreclosing without the proper documentation.

● Foreclosing on an active duty military member.

● Failing to account for the amount due or being able to prove the note is in default.

● Starting a case with documents that were not signed by you (either a forgery, or simply not signed at all).

If you have any doubt as to whether the foreclosure on your house is proper, call our office. When things don’t seem right, they usually aren’t. You have the right to make sure the lender has the right to foreclose on you and that they provide proof of the debt as well as the amount they claim to be past due. You are entitled to an accurate pay history and to see the originals of the loan documents. When a lender fails to abide by the rules and regulations governing foreclosures, the process should go no further. This has been the general feeling across the country and the courts are not ignoring the severity of displacing people from their homes. This is your “day in Court” and you should take full advantage of the opportunity to challenge the possible loss of your home.

 

If you are being foreclosed on and believe the case is wrongful, call our office for help. We will review the facts of your unique circumstances and develop a strategy that fits the facts. We offer an individualized approach and work with you to reach satisfactory results. Call a Plantation, Florida debt relief attorney today for more information.

How Do I Sue A Debt Collector?

Most collection lawsuits involve a creditor suing a consumer for a past due debt. There are certain procedures that the creditor is required to follow, and when the creditor fails to play by the rules you can and should take action against them. Possible results from a lawsuit against a debt collector include monetary damages for the amount you are out of pocket for having to bring the action as well as possible punitive damages. Punitive damages are designed to “punish” the offender, and prevent repeat of the offensive behavior in the future.

The Fair Debt Collection Practices Act governs the way in which a debt collector is allowed to collect debts. The Act also provides for remedies to consumers who have been the subject of an abusive or harassing collection practice. Remedies include:

● Actual damages incurred.

● Payment of attorney fees for having to sue the collector.

● A mandatory $1,000.00 fine per violation of the Act.

You can sue a debt collector in state court, in federal court, or within a bankruptcy proceeding. Where you bring suit will depend on the specific facts of your case, and a trained attorney will know which option fits your case. We have experience bringing actions against debt collectors and place an emphasis on this type of case within our legal practice. For help, call one of our trained legal professionals.

If you are being harassed or threatened from a debt collector, call our office for help. We will fight for a full and fair compensation for your damages while holding the creditor’s fee to the fire for accountability. Call a Plantation, Florida debt relief attorney today for more information.

Phantom Debt or Zombie Debt

These names may be foreign to some, but the companies that operate within their confines are not. If you (or someone you know) have ever been subjected to debt collectors, then you probably are well aware of who phantom or zombie debt collectors are. According to a report issued by CNN in July 29, 2014 one in three Americans are now dealing with debt collectors.

Types of Debt Collectors

Debt collection practices fall into three major categories – house accounts, collection agencies or debt purchasers. With house accounts, employees of the company (their representatives) are tasked with collecting past due debt. Their goal is to resolve and collect outstanding balances before a debt becomes too old (typically six-months) and is written-off as uncollectible. Once the debt is written-off, it is usually sent to an outside collection company that is tasked with collecting the outstanding balance. In most cases (but not all), the collection agency gets a percentage of any monies they collect, some get upwards of 50% of all the money they collect. The last category of debt collectors are debt purchasers. These collection companies buy old debt that is no longer being worked by the original creditor or an external collection company. In most cases, the debt has aged substantially (often three or more years since the debtor defaulted).

How the Phantom/Zombie Debt Works

The reason it is called phantom or zombie debt is that these old debts tend to arise from the dead or are not owed or belongs to someone else – like someone with the same name or a deceased child or parent. After years of not hearing about an old debt, suddenly and out of nowhere, a letter or phone call comes from ABC, XYZ, (or whatever) Asset Management Fund (Company, LLC, etc.). The letter will state that they are attempting to collect on the debt owed to “such and such” company. They will lead you to believe that they are a debt collector working for the original creditor. However, this is not true.

The truth is they have purchased the debt from the original creditor or a collection agency (one that has given up on collecting the debt) for mere pennies on the dollar. They might have purchased your old debt that was originally $1,000 for as little as .50 cents. In the extreme, they may have spent several dollars for the debt. The asset purchase companies relish buying this debt for two reasons – it is a fraction of the original cost and with cumulative interest added it is now worth many times more than the original amount you owed the creditor.

Why the Misrepresentation?

Most (if not all) of these asset purchase buyers want you to think that they are representing the original creditor and that they are going to make you an exceptional, but limited time offer. They try to convince you that you can finally settle this debt and put it behind you. They hope that you, the debtor, is ignorant of zombie debt collectors and will easily fold to their demands and antics.

If they were honest and forthright and explained that they purchased the debt for pennies on the dollar, they would lose their ability to extort monies from you using deception. The asset purchase model is so lucrative that if only a small percentage of accounts paid up, the profits become staggering. One of the leaders in “debt asset purchasing” claims the retail value of their portfolio is over a billion dollars – are you starting to see the picture.

Consumer Rights and Protection

As with all debt collection, there are laws, regulations, and practices, which govern and provide protection for debtors. Unfortunately, overzealous collectors sometimes (all too frequently) go beyond what the law allows in attempting to collect a debt. In some cases, a collector may have violated federal law and could be subject to fines/penalties or both. It is important for a consumer to understand their rights and to seek the help of legal counsel when these rights are violated.

The next blog will detail the rights of consumers, and the standards that creditors and collection agencies are expected to adhere as defined in the Fair Debt Collection Practices Act.

If you are having problems with debt or debt collectors, Dzousa Legal is here to help you. We will gladly meet with you to discuss your options. The initial review of your matters is without obligation or fees.