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mediation.jpgThe Bankruptcy Court for the Middle District of Florida, Tampa Division, has recently implemented a mediation program for homeowners wishing to modify their first mortgages. The Orlando Division has had a similar program in place for a year or more and reports a success rate of 70%, unlike the state foreclosure mediation program which has a success rate of less than 5%. Combined with a reduction of debt in a Chapter 7 or even a stripped second mortgage in a Chapter 13, you may find keeping the house to be affordable with a modification. HAMP for instance reduces the interest rate to as little as 2%, may extend the term or carry a portion of the principal without interest to the end of the loan. If you believe that you can afford a (PITI) payment that is approximately 31% of your gross income, you may want to take advantage of this program.

Many reasons exist for the higher rates of success for mediations in bankruptcy. First and foremost, a bankruptcy filing tends to eliminate credit card, medical bills or second mortgage payments allowing for more income to be directed toward the first mortgage. Lenders attorneys have pointed to the smaller, more experienced bankruptcy mediation departments at banks or servicers that allow for better outcomes.

The Tampa Division just approved a standard fee of $1800 for their mediation program this past week payable to the debtor’s attorney in a Chapter 13 Plan (spread out over 5 yrs is $30 monthly). The cost of the mediator will be $350 for two hours split between the mortgage company and the debtor. This is the only fee that will be payable up front at the mediation.

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I’ve written previously about the Florida Legislature not renewing the designated funding for residential mortgage foreclosure cases. On July 1, 2011, most counties were forced to curtail or even shut down entire divisions when the money ran out.

In response, the Tampa judges in Hillsborough County, Florida put into place a new Administrative Order S-2011-029 setting forth new foreclosure procedures. This Order contains provisions that are intended to increase efficiency of the judiciary to stay on top of the foreclosure filings that are expected to increase the end of this year. One provision allows for the disposition of non-summary judgment motions without a hearing.

This refers mostly to the Motions to Dimiss or Motions for More Definite Statement although many motions fit this definition. A Motion to Dismiss or Motion for More Definite Statement is typically the first response to a foreclosure summons filed by foreclosure defense attorneys. The intent is to make sure that the Plaintiff’s Complaint contains sufficient allegations as to who they are and how they claim an entitlement to foreclose. The thinking is if the Plaintiff claims to have the right to foreclose, then why hide the ball? File a Complaint that properly alleges standing and attach a Note, Mortgage and documents to show the chain of transfers and default. This would eliminate unnecessary delays and discovery. The Florida Supreme Court felt the same way when in February 2010 it instituted a requirement that a Plaintiff “verify” the truth of the allegations before filing a Complaint.

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tipstricks.bmpOver the past few years in our foreclosure defense and bankruptcy practice, we’ve learned a little bit about mortgage modification in Florida and here are some tips and tricks of which homeowners should be aware:

Call your mortgage servicer and ask about their HAMP program and participation. Any bank who accepted TARP bailout funds back in 2008, or who has signed a servicing agreement are required to consider any potentially qualifying borrower for HAMP. HAMP modifications often provide for interest rates of as little as 2% and are usually more beneficial than in house mods.

Under a HAMP mod, you don’t have to miss a mortgage payment to qualify. You can simply submit an affidavit of impending hardship. Use the words “imminent default”. This avoids the lender telling you that you have to be three months deliquent for them to consider a mod, and then changing the story when you call again in three months by now requiring you to be current to modify your loan.

Ask about the Principal Reduction Alternative (PRA) if you are upside down in your mortgage.

Ask about the Hardest Hit Funds (HHF) available in the states hardest hit by the recession.
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mortgage-crisis.jpgThe ordinary household is drowning in mortgage debt. Sure, some homeowners were reckless, but most were not. Regardless of fault however until the mortgage crisis is fixed and our unemployment is cut in half, our country’s households will continue their downfall. This Thursday, President Obama is to announce some sort of plan to reduce unemployment and provide solutions to our mortgage crisis.

The New York Times editorial recently addressed NACBA’s Principal Paydown Plan. I urge everyone to read this editiorial and contact your representatives or the Whitehouse to support this plan which would amend the bankruptcy code to allow mortgage payments in a Chapter 13 Plan to go directly to principal thereby reducing or eliminating the underwater portion.

New approaches are necessary. HAMP has probably caused more foreclosures than it helped because of the poor implementation by the banks and mortgage servicers. For instance, I can’t count the number of homeowners who have said that their mortgage company told them they had to be three months behind before a modification could be discussed, only to call three months later and hear that modifications are only available for borrowers who are current. This doesn’t even count the homeowners who have given up after submitting their paperwork umpteen times. Or those on endless trials only to be told they don’t qualify and now owe $30,000 back payments by Friday. Oh and they can’t get a loan to catch up the arrears because their credit has been dinged by the servicer who failed to explain that a mortgage modification would destroy their credit.
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debt downgrade.jpgLet’s put into perspective the recent S&P debt downgrade of the United States.

U.S. Tax Revenue: $2,170,000,000,000 Fed. Budget: $3,820,000,000,000 New Debt: $1,650,000,000,000 National Debt: $14,271,000,000,000 Recent Budget Cut: $38,500,000,000

Now let’s remove 8 zeros and compare this to an ordinary household:

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creditcards.bmpAll this talk about a foreclosure plaintiff needing to have proper standing, chain of title and assignment records reminds us that the same is required, but often overlooked, in credit card lawsuits.

In Florida, debt collectors bringing lawsuits for unpaid credit card balances are required pursuant to Florida Statute Section 559.715 to show that any assignment of consumer debts is done with “written notice of such assignment within 30 days after the assignment”. If the creditor cannot produce evidence of the notice, the case should be dismissed. See LVNV Funding, LLC v. Harris (Fla. Miami Dade Cty. Ct. June 24, 2009). Also the courts regularly require documentation of the assignment by an authorized representative of the original creditor before a third party is allowed to obtain a judgment against the consumer.

Increasingly, evidence has appeared that shows debt buyers do not actually own the debt they are suing to recover. Large portfolios of accounts are divided and subdivided and sold to multiple buyers. Sometimes the debt buyer fails to pay in full for the accounts, and the right to collect is returned to the original creditor. More layers of complexity are added if the debt was pooled as part of a securitization. The debt collector will rarely reveal the existence of the trust even though it is the true owner of the debt.
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forkinroad.bmpOur Florida clients sometimes ask me why they cannot strip off a second mortgage in a Chapter 7 like often done in a Chapter 13 bankruptcy nowadays. The limitation can be found in the United States Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 417 (1992). The Court noted a distinction between the in rem and in personam claims created by a lien on a debtor’s property. The Court held that a Chapter 7 discharge of personal obligation leaves the in rem obligation intact against the property.

Even though a client might qualify to file a Chapter 7, sometimes the extra remedies available in a Chapter 13 make the more lengthy plan worthwhile. Under 11 U.S.C. 1322 a wholly unsecured second mortgage or HELOC can be stripped off a homestead. However, one other key difference exists between a Chapter 7 and 13. If a debtor retains a home in a Chapter 13, they are still personally liable for the first mortgage even if the second mortgage is stripped. Therefore, a Chapter 7 may still be best if the home is worth much less than the amount owed on a first mortgage and the debtor is uncertain about keeping the home long term.

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nacba.jpgNACBA (National Association of Consumer Bankruptcy Attorneys) responded this weekend to the government’s latest approach to the foreclosure crisis with what I call the Principal Paydown Plan.

Rather than turn us into a nation of renters under the recent suggestion that Freddie and Fannie rent their foreclosed properties or sell them as rentals, NACBA suggests again that a Chapter 13 bankruptcy can be modified to help families avoid foreclosure on massively underwater property. Without more focus on prevention, our housing market is certainly facing additional downturns.

The Principal Paydown Plan would require the reduction of interest on a primary mortgage to 0% during a Chapter 13 Plan thereby relegating the entire payment to principal (plus escrow). At the end of the bankruptcy, the debtor would have paid down their mortgage in many cases to the approximate fair market value of the property helping to slow the foreclosure numbers for those homeowners who would otherwise strategically default believing that their home value will take 10 or more years to recover.

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