The Sarasota Herald-Tribune interviewed Roy Oppenheim, among other Florida foreclosure attorneys, for his opinion on what to do during the foreclosure process. The article advises homeowners to fight foreclosure and never just give-in to a foreclosure notice. Read on for the full article.
Attorneys advise clients to stay in their homes
By Todd Ruger
Monday, June 29, 2009
SARASOTA COUNTY – Phil Agnes and other lawyers have two words for homeowners facing foreclosure: Stay put.
The flood of foreclosures has clogged the courts, allowing homeowners to stay in their homes while the paperwork goes through the system. Many homeowners are unaware that they can remain at home for months while the foreclosure is in court, attorneys say.
And homeowners willing to challenge the foreclosure sometimes can remain in their homes for more than a year, sometimes more than two years, just by filing a few basic legal documents.
“It’s in everyone’s best interest to stay in the home,” said Agnes, an attorney who volunteers at Gulf Coast Legal Services Inc.
A legal fight lets homeowners save money for post-foreclosure life, when a ruined credit score makes it harder to find a new place to live.
And there are more advantages, attorneys say: Making the legal process costly and time-consuming may push the lender to find alternatives to foreclosure like a loan modification or short sale, the attorneys say.
Staying in the house does not disrupt family life, and the owner takes care of the home, protecting its value for the bank and the neighborhood’s appearance.
Agnes said he sent letters to homeowners immediately after foreclosure filings, and about a third of them were returned because the homeowners had already left.
The Manatee and Sarasota court records are full of cases in which the banks waited months to move forward, even if the owner did not respond.
Agnes said he has two cases where he responded for the homeowners, and the bank has not filed anything in almost a year.
“And they’re still in the house,” he said.
Too rushed to fight
The attorneys for lenders hope owners do not bother to fight the foreclosure.
If a homeowner simply walks away from the property, attorneys can spend hardly any time in court and retake it in as little as 90 days.
Courts across Florida have expedited the process to clear tens of thousands of foreclosures that have been filed since the housing market fell in 2006.
Sarasota and Manatee counties had 46,455 filings since January 2006, far outpacing the final judgments in cases.
Adding to the clog, the lenders often pay law firms a flat fee for each judgment they obtain, so they focus on the easier cases, foreclosure defense attorneys who work in the system say.
When a homeowner files paperwork that takes the case out of the fast track and into the traditional court, lender attorneys sometimes seem to put the case aside.
“They don’t have time to necessarily fight these cases,” Agnes said. “If you just sort of roll over and do nothing, they’re not going to help you.”
And any motion that requires the banks to produce information can delay the case for months. The more difficult the request, the longer the delay.
The going time lag for banks to respond when a homeowner asks to see some types of paperwork? Up to six months.
“They’re very disorganized,” said Christy Greene, an attorney at Advocates For Justice in Jacksonville.
The system is set up to be advantageous to homeowners who fight, Fort Lauderdale area-based attorney Roy Oppenheim said.
The more time it takes the lender to get that judgment, the more chance the bank’s attorney will realize an alternative solution would be faster and cheaper.
“As of today, we’ve not had a client go to the courthouse and lose their home,” Oppenheim said.
Once homeowners appear to have lost the case, filing for bankruptcy will halt the foreclosure, typically for several months.
Digging in
Requesting records from the lenders is more than just a stalling tactic, attorneys say. Homeowners have every right to force lenders to prove they really own the home loan.
An unprecedented number of mortgages were repackaged together and sold as securities, which provides the best opportunities to homeowners trying to fight.
The facts in every case differ, so there are no guarantees on how long a homeowner can stay after they stop paying the mortgage.
Foreclosure defense attorneys can file the basic documents that will buy months in a home.
They usually take the case for a flat fee that could equal one or two months’ mortgage payments, and can avoid the legal pitfalls homeowners can fall into when trying to represent themselves.
For instance, homeowners filing an answer could unwittingly admit to how much they owe, or damage their chances to fight later in the case.
But even homeowners who cannot afford an attorney have been able to successfully buy more time. Many of the required documents can be found online.
One Manatee County couple simply asked for a 45-day extension to file an official response to the foreclosure.
Six months later, the court finally heard arguments on why they might deserve the extra time.
Oppenheim says he hears clients talk about what the lenders told them on the phone about the mortgage. Then he wants to hear for himself, and asks the bank for audio tapes recorded “for training purposes.”
“We may never get them, they may not have them, they might say they lost them,” Oppenheim said.
But just the request means a lot of time digging for the lender’s attorney, who will suddenly find it is much more productive just to focus on other cases in which the homeowner is not staying to fight, he said.
Every motion filed means a hearing on the motion, and those can take a month or two to schedule.
Beyond delays, it just makes sense to show up in court, the attorneys say.
“Any time you are sued you should never just walk away,” Greene said. “But I think the ultimate motive should be for transparency of who really owns my mortgage, and who can I talk to to negotiate.”
