Posts Tagged strategic default

Quiet Title

Action to Quiet Title.  A proceeding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it.  Black’s Law Dictionary, (2004).

There are many reasons why one may need to bring an action to quiet title on real property.

If you have purchased property at a tax lien auction, filing a quiet title action is necessary in order to be able to convey marketable title.  Through this action, any clouds on the title may be removed, and any prior claims may be extinguished, leaving the owner with clear and marketable title.

You may have a different situation, such as a conflict in boundary descriptions in diverse recorded conveyances due to a clerical error or there may be improper liens on the property.  In some cases, simply refinancing your home may create clouds on title in the event that the interests of the parties were not properly recorded or in the event that proper satisfactions of prior liens have not been properly recorded.

If you are considering whether or not to purchase a property that has been foreclosed on, or are considering buying a property at a foreclosure auction, there are issues related to title that you might want to discuss with an attorney.

If you have questions about Quiet Title actions, please call my office and I am happy to discuss your case with you.

In 2014, Attorney Alexander Scott Dennison filed a lawsuit in Sarasota County Florida to quiet title to property and argued that both the Statute of Limitations and the Statute of Repose have run. For more information about this case, which as of January 26, 2015 is still pending before the 2nd DCA, please visit this link to Howell vs Suntrust, et al.

Other Practice Areas

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    • Quiet title actions
    • Homeowner Association and Condo Association Disputes
    • Foreclosure Defense
    • Foreclosure Appeals
    • Landlord/Tenant
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    • Contact Drafting
    • Mediation
    • Appeals of Arbitration Rulings
  • International Law
    • Private international law including international business transactions.
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  • Criminal defense – misdemeanors

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Nicolas Cage in foreclosure?

They’re rich and famous and in foreclosure

While the article seems to suggest that these individuals are behind on payments because they borrowed more than they could afford (which seems to be the same business model of many large corporations and the U.S. Government) I would think that these individuals likely took a look at the reality of the business deal they had and decided that it was no longer worth it to them to pay sometimes three times what a property is worth, plus interest over 30 or more years, for the property.

This notion of deciding to default because there appear to be no other options has been termed a strategic default.  I am not sure what is so strategic about it, but I guess it sounds good.  When looking at the numbers, many people determine that it is no longer in their family’s best interest to continue paying on their mortgage.  If you find yourself in this position and would like to speak to an attorney about the risks and benefits of a so-called strategic default, contact my office.

Read the entire article here.

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Foreclosure Statute of Limitations and Statute of Repose in Florida

Last modified on 2015-01-27 16:59:08 GMT. 0 comments. Top.

I recently argued a case of first impression in the Second District Court of Appeals. The oral argument was held on January 21, 2015 in the Tampa Law Center at Stetson University College of Law.

William W. Howell vs. Suntrust Bank, et al. CASE NO.: 2D14-2610

The following documents relate to the case, and are shared here for your reference. Please note that the briefs filed in the case were all filed prior to the Third District Court of Appeals’ Opinion in Beauvais. As such, you will see that the Beauvais Court adopted in large part the reasoning contained in the Initial Brief. There is also an Appendix. The Bank’s Answer Brief includes their argument in response. Here a copy of my Reply Brief , which was filed in response to their Answer Brief. And finally, a Notice of Supplemental Authority.

Following the filing of the publication of the Beauvais opinion I was able to see clearly where the Statute of Repose was being misunderstood and I am currently working on an article outlining the argument I made in Oral Arguments in an effort to explain why the analysis of the Third DCA is flawed.

The relevant language from the Statute is:

95.281 Limitations; instruments encumbering real property.

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, except those specified in subsection (5), shall terminate after the expiration of the following periods of time:

(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturityBold emphasis added by me.

With these terms highlighted,  it is clear that the drafters used two different terms in the statute. The first, final maturity, is a fixed date. You can find it on a typical Mortgage recorded in every county in Florida. Here is an example:

 Example of Final Maturity Date from a Mortgage

Final Maturity = April 1, 2037

As you can see from this example, the final maturity is described as the date by which the entire indebtedness must be paid in full.

The second term, date of maturity, is a variable but only when you are talking about an installment contract with an acceleration clause. Absent an acceleration clause, the Final Maturity Date of a Mortgage is the Maturity Date. However, this is not necessarily the case when there is an optional acceleration clause.

Since the documents used in the majority of home loans, I refer to them as Fannie and Freddie Uniform Instruments, contain something called an acceleration clause, the date of maturity can only be determined by first determining whether the option to accelerate has been exercised by virtue of the lender providing written notice to the borrower. This Notice can be given in the form of a letter, or it can also occur in the initial pleading, the Complaint. By accelerating, a party thereby advances the maturity of the entire remaining indebtedness and the date of maturity becomes the date of acceleration. The result is that all of the remaining payments become due as one final payment, which is generally due 30 days following the date of the Notice.

Simply put, the Third District in the Beauvais opinion treated the final maturity date and the date of maturity as the same concept and therefore the same date. This is an understandable error given the complex nature of the law, but it is one that I expect will be corrected by this case currently before the Second District Court of Appeals.

So what?
Well, if the Statute of Repose has run, then no cause of action may be brought, ever, to collect the debt or to foreclose, and if the Statute of Repose has also run, the lien may be terminated by operation of law.

If you read the above and have questions about whether your lawsuit was filed timely or perhaps may be barred by the Statute of Limitations and the lien terminated by the Statute of Repose, contact my office.

Please note that the current law in Florida is still in limbo as the Third District has certified that their opinion is in conflict with the  Fourth DCA Opinion in Evergrene Partners, Inc. v. Citibank, N.A., 143 3d 954, 956 (Fla. 4th DCA 2014).

This is the video from the argument.

https://www.youtube.com/watch?v=xjQ9ugiSQ3M

 

Morgan Lamri found guilty of corruption offenses.

Last modified on 2014-12-03 19:49:49 GMT. 0 comments. Top.

“Morgan Lamri found guilty of corruption offenses

French tennis official banned for life for violations of the Uniform Tennis Anti-Corruption Program

French tennis official Morgan Lamri has been banned from the sport for life after being found guilty of multiple offenses under the Uniform Tennis Anti-Corruption Program (Program).

Mr Lamri, 22, was found guilty of charges laid under the 2012 and 2013 editions of the Program, in a case based on the findings of a Tennis Integrity Unit investigation.

The charges for which he has been found guilty and sanctioned are:

16 separate breaches of Section D.1.a of the 2012 and 2013 Programs:
“No Covered Person shall, directly or indirectly, wager or attempt to wager on the outcome or any other aspect of any Event or any other tennis competition”
One breach of Section D.1.d of the 2013 Program:
“No Covered Person shall, directly or indirectly, contrive or attempt to contrive the outcome or any other aspect of any Event”
One breach of Section D.1.e of the 2013 Program:
“No Covered Person shall, directly or indirectly, solicit or facilitate any Player to not use his or her best efforts in any Event”
Breaches of Section D.2.c of the 2013 Program:
“For the avoidance of doubt, (i) a failure of the Reporting Obligation by any Covered Person; and/or (ii) a failure of the duty to co-operate under Section F.2 shall constitute a Corruption Offense for all purposes of the Program.”
Independent Anti-Corruption Hearing Officer Jane Mulcahy QC considered the case and imposed the sanction.

The lifetime ban applies with immediate effect and means that Mr Lamri is not eligible to officiate, participate in or attend any tournament or competition organised or sanctioned by the governing bodies of professional tennis from the date of this statement.

Consistent with the confidentiality of the Anti-Corruption Hearing process, no further details will be made public.

The Tennis Integrity Unit is an initiative of the Grand Slam Board, the International Tennis Federation, the ATP World Tour and the WTA, who are jointly committed to a zero tolerance approach to corruption in tennis.

* The Uniform Tennis Anti-Corruption Program is the code of conduct under which the charges against Mr Lamri were laid. With effect from 1 January 2014 the regulations were updated and re-named as the Tennis Anti-Corruption Program. A copy can be downloaded above.”

Source: http://www.tennisintegrityunit.com/media/24/morgan-lamri-found-guilty-of-corruption-offenses/

 

Zombie Foreclosure Debt, it’s scary.

Last modified on 2014-11-19 17:31:21 GMT. 0 comments. Top.

What is worse than losing your home to foreclosure? This article describes a scenario that I have been advising clients on for years. And more and more in foreclosure courtrooms we are seeing banks pursue money judgments for deficiency balances.

Additionally, many people who had their previous foreclosure case dismissed are facing new foerclosure cases. If you would like to discuss your foreclosure or debt collection issue with an experienced attorney, please contact my office and schedule a free consultation.

http://money.cnn.com/2014/11/17/real_estate/zombie-foreclosure-debt/index.html

 

PINO Update

Last modified on 2014-08-26 22:58:21 GMT. 0 comments. Top.

Well, it has been a while but there is movement on the previously discussed PINO case. See Previous Post Here

Oral argument will be held this week and you can watch them streaming online here: Oral Argument Stream

I do not have the time to detail and analysis of this issue here but this case is important to all of us who defend Floridians in foreclosure and for in-depth discussion of some of the issue raised please check out what my colleague Matt Weidner has written about the case on his Blog. You will get a good overview of some of the issues and why this case is important not just for foreclosures but for the rule of law.

 

If you cannot sell your home, it has ZERO value. This is a problem.

Last modified on 2014-08-26 22:59:40 GMT. 0 comments. Top.

Take a look at this article describing a recent Massachusetts case.  A buyer of a foreclosure sought to quiet title to the property…read the entire article on Housing Wire.

“The issue for a homeowner is having to prove that a foreclosing entity had the right to foreclosure. But if I am someone who has bought a foreclosure, I now cannot sell my home until I can prove that the foreclosing entity had that right of foreclosure, which might be difficult for me to prove.”

If you cannot sell your home, it has ZERO value.  This is a problem.

 

PINO goes all the way.

Last modified on 2014-08-26 22:59:47 GMT. 0 comments. Top.

This case is important; anyone who wants to get a taste for the issues that lawyers involved in foreclosure defense deal with should read the linked documents.  This case really relates to one issue, which is committing a fraud upon the court and then, after you get busted, dismissing the case and getting a do-over without any consequences.  I will continue to watch with great interest.

Link to documents.

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New York Subpoenas 2 Foreclosure-Related Firms

Last modified on 2014-08-26 22:59:55 GMT. 0 comments. Top.

It appears that Florida is not the only state having these types of issues.  In a recent New York Times article, linked below, several New York foreclosure mills were the focus of the discussion.

“The New York investigation appears to center on two of the state’s foreclosure industry giants: the Steven J. Baum firm, headquartered in Amherst, N.Y., and Pillar Processing, a default servicing firm set up by Mr. Baum that was spun off in 2007. Representing JPMorgan ChaseWells Fargo and other large banks, the Baum firm has handled an estimated 40 percent of foreclosure cases in the state. Pillar Processing provides extensive services to the firm.” See full article HERE.

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Critics say MERS foreclosure halt shows broken business model

Last modified on 2011-02-19 15:17:11 GMT. 0 comments. Top.

The article I have linked to addresses one of my big concerns regarding the foreclosure mess.  The MERS scheme created a new paradigm.  In Florida, there is no law allowing an interest in a mortgage to be severed from an interest in a note, at least none that I have found.  I have made this argument, that the contractual language in a MERS mortgage; (1) is a nullity as a matter of law, or (2) it requires that the two separate chains of title must flow to the same plaintiff, and that such a plaintiff must take both the Note through endorsement and the Mortgage through assignment, simply having one will not work to provide standing because the other must be accounted for as well.  By having this dialog in the media, my hope is that we will be able to work toward a solution to this problem.   Read this article to learn more.

Read entire article here.

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4th DCA – Foreclosure Case of Great Public Importance

Last modified on 2014-08-26 23:00:31 GMT. 0 comments. Top.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents…”  And with that, the 4th DCA has sent the Pino case to the Florida Supreme Court.

Palm Beach Post

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Private Mortgage Modifications Were Double Obama Program in 2010

Last modified on 2014-08-26 23:00:36 GMT. 0 comments. Top.

Often people who fall behind on mortgage payments have suffered a temporary financial set-back and are able to resume making payments.  However, many people are unable to reinstate their loan, which requires all the late payments, penalties, attorney’s fees, and court costs be paid to bring the loan current.  Loan modification is when a lender re-works a deal and the borrower begins making payments once again.  I was not at all surprised when I read the following article, describing how the so-called Obama Plan has failed to deliver, at BusinessWeek.com.

Bloomberg Businessweek

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Bank of America dealt another blow in foreclosure cases in Nevada

Last modified on 2014-08-26 23:00:45 GMT. 0 comments. Top.

Order by Nevada Court halts 8,900 foreclosure cases.  Courts are taking notice all over the country that there are major problems with a lot of foreclosure cases and here is another example.

Read entire article here.

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The Loan Modification Mine-Field

Last modified on 2011-01-27 15:28:01 GMT. 0 comments. Top.

Every day I meet with individuals involved in foreclosure at various stages of the process.  One of the most common stories people share with me is that they have spent all of their energy working with their lender and have seen no results from their efforts, other than their frustration.  They have sent documents that were requested of them, made voluminous disclosures and resubmitted paperwork countless times, only to be given one of a litany of excuses why they were not approved for a loan modification.  Rather than me tell my stories, I’ll share one from the Kansas City Star.

What is described in this article should not be happening.  When people go into “default” on the direction of their lender, the lenders should be estopped from proceeding in litigation.  These cases are heard in courts of equity and there is nothing equitable of a lender playing pied-piper and luring people into default.

Read the entire article here.

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Banks drop foreclosures in Southwest Florida

Last modified on 2014-08-26 23:00:52 GMT. 0 comments. Top.

It seems that all the hard work over the past years by everyone in the foreclosure defense arena is paying off and it seems at least some of the lenders are beginning to get concerned.

Read the entire article here.

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“Jeffrey Stephan” foreclosure cases to be dismissed!

Last modified on 2011-01-19 13:13:42 GMT. 0 comments. Top.

“Ally Financial, one of the nation’s largest lenders, said Tuesday that it is withdrawing all of its foreclosures in Maryland that were approved by employee Jeffrey Stephan, the “robo-signer” who admitted he signed off on thousands of files every month with little or no review.”

The use of the word “approved” is perhaps misleading.  It appears that this individual merely executed fraudulent affidavits.  Or rather, affidavits that are not what they purport to be.

In Florida, we have thousands of cases where this individual and others like him signed documents improperly.  A read of the deposition testimony of any one of the numerous “vice-presidents” or “secretaries” (pick a title) of these banks shows that they were employed for the purpose of putting pen to paper, and little or nothing more.  I am curious to see how our Florida Courts continue to treat these cases.  It makes no sense to me why we continue to have thousands of voidable judgments being entered in cases all over the state with the only explanation being that we need to move cases along and clear the docket.  These judgments place a cloud on the title of these properties.  If the properties are not marketable because the title companies refuse to insure them, it is hard to be optimistic about a meaning housing recover any time soon.  These cases must be dismissed and new cases filed not only in Maryland but in all judicial foreclosure states.

Read the entire article here.

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Nicolas Cage in foreclosure?

Last modified on 2014-08-26 23:01:00 GMT. 0 comments. Top.

They’re rich and famous and in foreclosure

While the article seems to suggest that these individuals are behind on payments because they borrowed more than they could afford (which seems to be the same business model of many large corporations and the U.S. Government) I would think that these individuals likely took a look at the reality of the business deal they had and decided that it was no longer worth it to them to pay sometimes three times what a property is worth, plus interest over 30 or more years, for the property.

This notion of deciding to default because there appear to be no other options has been termed a strategic default.  I am not sure what is so strategic about it, but I guess it sounds good.  When looking at the numbers, many people determine that it is no longer in their family’s best interest to continue paying on their mortgage.  If you find yourself in this position and would like to speak to an attorney about the risks and benefits of a so-called strategic default, contact my office.

Read the entire article here.

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2011 is going to be the peak for foreclosures?

Last modified on 2014-08-26 23:01:08 GMT. 0 comments. Top.

2011 to Hit Foreclosure Record – Three Need-to-Knows for Foreclosure Buyers

Well, I guess it wouldn’t be the new year without some predictions.  So I found this article to share with you.  If this author is correct, 2011 will see a record number of homes in foreclosure.

Read the article here.

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Bamboozled by the Media on Housing and Foreclosures

Last modified on 2014-08-26 23:01:18 GMT. 0 comments. Top.

“But the American public is not being prepared for the hard truth – there is another leg down in housing this year.”

The media tend to paint a picture of things and most people tend to accept it as presented.  However, two different “media artists” can use the same “paint,” the same basic story, quotes, and statistics, and create a vastly different picture for the reader.  I thought this article illustrates this with a recent comparison of two articles covering the same subject matter.

Read the entire article here.

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2,500 Homeowners Put In Foreclosure While Awaiting Mortgage Modifications: Attorneys

Last modified on 2014-08-26 23:01:28 GMT. 0 comments. Top.

One of the problems occurring daily around Florida and around the Country is described in this December article.  Recently, courts have recognized that the process the lenders employ, that of pied-pipering homeowners into working with them on a modification, meanwhile sending the file to a law firm to file foreclosure, get a default entered, and move the case quickly to a default final judgment and a foreclosure auction, is improper.

Read the article here.

Courts around Florida have been reminded often by defense attorneys that there is something fundamentally wrong with this practice.  The attached Order is one example from 2010 where a Duval County Judge agreed and set aside a final judgment.

USBank-Order-Granting-Motion-to-Set-Aside-Sale-and-Judgment-of-Foreclosure

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Paralegal Sues Fla. Foreclosure Firm

Last modified on 2014-08-26 23:01:39 GMT. 0 comments. Top.

The full story can be read here.

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Judges Berate Bank Lawyers in Foreclosures

Last modified on 2014-08-26 23:01:51 GMT. 0 comments. Top.

One question I often ask myself is how, given all of the rules regulating our courts, our judges, and attorneys, that all of the well-publicized issues in foreclosure cases have gone on for so long.  The New York Times published an article on the issue and features a well-known Florida firm.

“The judge, Scott Fairgrieve of Nassau County District Court, wrote that “swearing to false statements reflects poorly on the profession as a whole.””

Read the entire article here.

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Fannie Tests Foreclosure-Prevention Plan in Florida

Last modified on 2014-08-26 23:02:04 GMT. 0 comments. Top.

Loan modification can be an effective way for a borrower who has or is currently going through a temporary loss of income to get back on track and have an opportunity to continue making mortgage payments.  Like everything in life, there is no magic bullet that works in every situation.  But is seems to make sense to keep more homes in the hands of people who care about them, care for them, and have a desire to continue making payments.  Please see the Wall Street Journal article on efforts of Fannie Mae to encourage lenders to work something out with homeowners sooner rather than later.   Often the case is that a lawsuit is filed and many thousands of dollars in legal fees are incurred by the home-owner before any meaningful discussion takes place with the lender or loan servicer about any kind of work-out plan or modification.   As a result of this practice, the amount of late payments also builds-up and in most cases puts the possibility of reinstatement out of reach for most people, even those who do become re-employed or whose financial situation rebounds.

Read the entire article here.

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Massachusetts Supreme Judicial Court Rules on Standing to Foreclose

Last modified on 2011-01-07 17:14:14 GMT. 0 comments. Top.

To follow-up from a previous post, please enjoy the Bloomberg article on standing.

“The case is U.S. Bank v. Ibanez, 10694, Supreme Judicial Court of Massachusetts (Boston). The lower-court cases are U.S. Bank National Association v. Ibanez, 08-Misc-384283, and Wells Fargo Bank NA v. LaRace, 08-Misc-386755, Commonwealth of Massachusetts, Trial Court, Land Court Department (Boston).”

Read the entire article here.

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L.A. Times on the Florida Attorney General’s Report

Last modified on 2011-01-07 15:40:31 GMT. 0 comments. Top.

Attorney General Pam Bondi

Attorney General Pam Bondi

Previously this week I posted a document titled “UNFAIR, DECEPTIVE AND UNCONSCIONABLE ACTS IN FORECLOSURE CASES.”  The L.A. Times yesterday published the following:

Titled  “Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases,” the presentation includes alleged examples of fraud and does a good job explaining the complicated process of securitization and some of the missteps major financial institutions made when they wrote, packaged and sold mortgages during the boom years. It explains how those missteps have come back to haunt banks during the housing market’s decline.Read the full article here.

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How to Get Rid of a Second Mortgage Without a Loan Modification

Last modified on 2011-01-06 15:11:42 GMT. 0 comments. Top.

There is not a one-size-fits-all solution to every situation.  This recent article in the Huffington Post illustrates that point.  There are options available to you when you find yourself going through rough financial waters and a skilled and knowledgeable attorney can help you determine what options may work best in your situation.

Link to Huffington Post article.

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Foreclosures May be Undone by State Ruling

Last modified on 2011-01-06 14:39:39 GMT. 0 comments. Top.

Bloomberg reports that an upcoming ruling in Massachusetts will address the issue of the validity of the alleged transfers of an interest in a mortgage under new banking practices that were developed to facilitate the securitization process.  Too bad it is not a Florida case, but it will be persuasive and a case to watch.  I pulled a few quotes but the article is worth a look.

Read the entire article here.

“The record in this case reflects how mortgage lending changed in recent years and how the industry failed to ensure that its new business model conformed to state law,” Massachusetts Attorney General Martha Coakley wrote in a brief supporting the borrowers.”

“The fight between homeowners and banks before the Supreme Judicial Court in Boston turns on whether a mortgage can be transferred without naming the recipient, a common securitization practice. Also at issue is whether the right to a mortgage follows the promissory note it secures when the note is sold, as the industry argues.

A victory for the homeowners may invalidate some foreclosures and force loan originators to buy back mortgages wrongly transferred into loan pools. Such a ruling may also be cited in other state courts handling litigation related to the foreclosure crisis.”

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Top Lenders Set for Foreclosure Settlement: Report – ABC News

Last modified on 2011-01-04 16:21:29 GMT. 0 comments. Top.

We are in new year and it promises to be exciting for all of us involved in foreclosure.  The Attorneys General across the country have been involved in a probe of industry practices involving the filing of questionable if not fraudulent documents and it appears that there may be a settlement forthcoming. See article from ABC news.

Top Lenders Set for Foreclosure Settlement: Report – ABC News.

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Florida Attorney General Releases Foreclosure Report

Last modified on 2011-01-06 14:56:19 GMT. 0 comments. Top.

I post for your enjoyment a report from the Florida Attorney General.  As many of you who know me already know, the issues they outline are some of the same issues I found over the previous year or more in the files I have worked on.  It is formatted like a slide show.  Share with your friends.  This is a good primer on how even what many call the best legal system in the world can break down if the people responsible for protecting it are not vigilant.

Foreclosure-Report-from-Florida-AG

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