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Foreclosure Defense
Foreclosure Defense
If the bank has the proper paperwork i.e. Mortgage, Promissory Note, Acceleration letter, and the Fair Debt letter, and they can prove they own the Mortgage and Note and or sent out the other paperwork then it is pretty hard to avoid the foreclosure, and the best thing is to try to stall it as long as it takes to modify your mortgage.
1. The Plaintiff has failed to state a cause of action because the Mortgage attached to the complaint does not show that the Plaintiff is the owner and holder of the Mortgage, there is no attachment that shows that Deutsche Bank National Trust Company is trustee for Long Beach Mortgage Loan Trust 2006-7. There is no attachment that shows that the Lender on the Mortgage, who is: Long Beach Mortgage Company, ever assigned or transferred its rights to Deutsche Bank National Trust Company or to Long Beach Mortgage Loan Trust 2006-7. The case should dismissed for failing to state a cause of action and for failing to attach necessary documents. (SEE Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic registration Systems, Inc., v. Dean Thomas Miesmer, Deceased, Et Al., 12 FLW Supp. 845 (Fla. Cir. Ct. 4th Jud. Cir. 2005).
2. The Complaint should be dismissed because the Plaintiff has failed to plead that the mortgage being foreclosed upon was assigned and or transferred to the Plaintiff. (SEE Mortgage Electronic Registration Systems, Inc. as nominee for Wells Fargo Bank, N.A. v. Marvin Johnson, 13 FLW Supp. 42(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, As Trustee for Morgan Stanley ABS Capital 1 Inc., Trust 2005-HE2 Mortgage Pass-Through Certificates, Series, 2005-HE2, v. Yolanda Ray, 13 FLW Supp. 136(Fla. Circ. Ct. 4th Jud. Cir. 2005); Mortgage Electronic Registration Systems, Inc. as nominee for Countrywide Home Loans, Inc. v. Angela Foster, 12 FLW Supp. 648(Fla. 4th Jud. Cir. 2005).
3. The Plaintiff has failed to state a cause of action because none of its attachments establish that it has standing to bring this lawsuit. (SEE Mortgage Electronic Registration Systems, Inc. v. Carol G. Dewinter, 12 FLW Supp. 554(Fla. Cir. Ct. 4th Jud. Cir. 2005)
4. The Plaintiff has failed to state a cause of action by not attaching a promissory note to the complaint. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
5. The Complaint should be dismissed for failing to join an indispensable party, and that party is the true lender listed on the Mortgage. (SEE Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
6. The Complaint should be dismissed because the Plaintiff never alleged nor did it comply with the Fair Debt Collection Practice Act by providing mortgagor with appropriate notice of her delinquency. Failure to provide proper statutory notice before filing suit prevents plaintiff from proceeding with foreclosure action unless and until condition precedent is satisfied. The complaint should be dismissed for violating the Federal Fair Debt Collection Practices Act. 15 U.S.C. 1692(g) requires that Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
The Defendant never received such notification. Before a Foreclosure action can be made against the Defendant the Plaintiff must prove that the aforementioned notice was sent and received by the Defendant. (SEE Nationsbank, N.S., Successor by Merger with Nations Bank, N.A. (South) Successor by Merger with NationsBank of Florida, N.A. v. Patricia L. Phillips-Jack, 5 FLW Supp. 542(Fla. Cir. Ct. 17th Jud. Cir. 1998).
7. The case should be dismissed because without a Note the property cannot be foreclosed. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
8. The complaint should be dismissed because the Plaintiff has not performed all the aforementioned conditions precedent before bringing this suit, to wit: complying with Fair Debt Collection Act, attaching necessary documents.
Foreclosure and Tenants
A tenant living in a residence that is being foreclosed upon must still pay the rent until the house is actually sold at which time the landlord is no longer the owner of the residence. If the tenant fails to pay the rent he or she could be evicted. Obviously if the written lease is expired or the tenant has an oral lease, the tenant can give proper notice to terminate the lease.
There is also an argument that the tenant can stop paying rent to the landlord once a final judgment of foreclosure has been entered against the landlord.
The tenant naturally does not want to pay and fears not having the security deposit returned.
There is a school of thought that the foreclosure is a breach of the covenant of quiet enjoyment and unless the landlord stops the foreclosure the tenant can get out of the lease.
However, the safest bet is for the tenant to pay the rent until the house is actually sold. In the event of a sale of the house there is a new federal statute that protects the tenant and allows the tenant to finish out the lease if there is one and if there is not one to get at least ninety days notice before the tenant has to vacate.
Foreclosure sale of leased premises does not constitute breach of landlord’s covenant for quiet enjoyment, since such covenant, express or implied, goes only to possession, not of title, and change of title to leased premises is of itself not inconsistent with lessee’s peaceable possession. Hyde v. Brandler, 118 A.2d 398 (Mun. Ct. App. D.C. 1955).
Thus, declaring that there could be no breach of the covenant for quiet enjoyment unless there was an eviction, actual or constructive, the court in Capone v. Hinck (1937) 163 Misc 47, 296 NYS 346, held that a tenant could not recover damages for breach of such covenant because of the institution of an action against him and his lessor to foreclose a mortgage on the leased premises, where it was not shown that there was an actual sale of the premises and a delivery of the referee’s deed to the purchaser. To the contention that the lessee had requested the lessor to defend the action to foreclose the mortgage and that the lessor had refused to do so, and that this constituted sufficient grounds for damages for breach of the covenant of quiet enjoyment, the court pointed out that the foreclosure action never reached a final stage of actual sale of the premises and delivery of the referee’s deed, but was settled by the lessor’s payment of a consideration to the lessee, who then surrendered the lease.
Lessors did not breach covenant of quiet enjoyment, despite lessors’ failure to pay their taxes, where lessees were not evicted, either actually or constructively, but continued to occupy premises through foreclosure sale and beyond. U.S. v. G & T Enterprises, L.C., 978 F. Supp. 1232, 80 A.F.T.R.2d 97-7908 (N.D. Iowa 1997), judgment aff’d, 149 F.3d 1188, 81 A.F.T.R.2d 98-2202 (8th Cir. 1998).
Although an action to foreclose a mortgage resulted in a decree of foreclosure, the court in John R. Thompson Co. v. Northwestern Mut. L. Ins. Co. (1937, DC Ohio) 31 F Supp 399, pointing out that it did not appear that there was a sale under the decree, but, on the contrary, that the mortgage was satisfied and discharged within the period given in the decree, held that the express covenant of quiet enjoyment in the lease was not breached by such proceedings, even if the covenant could be breached by loss of title by the lessor, it being apparent that no title was lost by the lessor under such proceedings.
Draft and Review Leases
Many people especially in the residential scenario do not read their lease before signing it. Also, many landlords write leases that do not protect them properly.
I draft and or review leases that protect the rights of my client, whether the client is a landlord or tenant.
There are certain clauses you should and must have in your lease.
For instance:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, OF THE FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in Florida Statute, 83.59(3)(c).