Reboot Your Life: Tampa Student Loan and Bankruptcy Attorney Blog
In the past year, Floridians have been hit with ten thousand or more deficiency lawsuits by Dyck-O’Neal, a collector hired by Fannie and Freddie to go after unfortunate homeowners. Many defaults have been obtained against homeowners which should not have occurred due to lack of personal and/or subject matter jurisdiction. Many folks did not even know these additional lawsuits have been filed against them. A recent New York Times article recently addressed this focusing on the ability of Dyck-O’Neal to go after deficiencies even in cases in which the underlying foreclosure action was suspect.
Some defenses raised by defense counsel in these cases are now hitting the appellate courts. In one such case decided May 1, 2015, Reid v. Compass Bank, 1D14-930 (Fla. 1st DCA May 1, 2015), the First DCA affirms the rule that a plaintiff in a foreclosure case cannot file a new lawsuit to seek a deficiency if the foreclosure court reserved jurisdiction for the purpose of entering future orders relating to the foreclosure.
“Notwithstanding the fact that First Federal Savings supports the argument that a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment, we have determined that affirmance is warranted in this case based upon the circumstances presented.”
I have great news to report on our BP claims! We now have five claims being paid out in the last month alone! These of course have been pending all through the appeals process so it’s been a long wait.
Today, a legislator introduced a 
We are still able to strip second mortgages in a Chapter 7 bankruptcy here in Tampa Bay. However, there is a risk that the window of opportunity may be closing. Bank of America has filed several challenges to the U.S. Supreme Court in the past couple of years. Two of these cases, the U.S. Supreme Court has granted certiorari and has agreed to hear them: Bank of America v. Caulkett, Case No. 13-1421 and Bank of America, v. Toledo-Cardonna, Case No. 14-163. Currently, we are in the only Circuit that allows the stripping of second mortgages and HOA liens in a Chapter 7. The only requirement is that the home be worth less than the first mortgage at the time of filing. Once stripped, the second mortgage lien is gone forever, unless the bankruptcy discharge is revoked which is very rare.
As a Florida consumer bankruptcy attorney, we have been able to remove and strip off second mortgages due to the 11th Circuit’s decision in McNeal a couple years back. It is the only Circuit in the country that allows for a second mortgage lien to be stripped from homestead property. The key has been to show that the home does not have value over and above the amount owed on the first mortgage.
Many of our Tampa Bay, Florida clients facing foreclosure want to speak with their mortgage company and reach some kind of agreement for a loan mod, deed in lieu, cash for keys or short sale. Many do not. They’ve been there and done that and no longer want to receive in some cases hundreds of calls from a mortgage company.