The Florida Bar Presents: The art of the objection – Part I.
The following video was produced for the South Florida Law Blog by Roy Oppenheim, Oppenheim Law.
If are you going to go to trial, what are your objectives? Roy Oppenheim spoke as guest lecturer at The Florida Bar sponsored seminar along with other counsel and appellate judges where he discussed trial strategy in light of preparing for a possible appeal.
Court tosses 5-year foreclosure limit – posted by Roy Oppenheim Sunday, April 28th, 2014
With the first serious wave of foreclosures now six years past, some borrowers with aging or abandoned cases were counting on a common contract law that says a person has five years to sue on a debt or give up the right to collect.
While it only pertains to foreclosures in a very specific set of circumstances, the collapse of the state’s largest so-called “foreclosure mill” in 2011 left an estimated 100,000 cases in disarray and an unknown number fitting the right profile.
The idea was if the case gets dismissed — something common if the paperwork was faulty or missing — the lender only had five years to refile or the home could go to the borrower free and clear.
But the 5th District Court of Appeal in Daytona Beach said Friday that the statute doesn’t work like that, and it has asked the Florida Supreme Court to weigh in on the matter, saying it is of “great public importance.”
“I understand they don’t like the idea that people can end up with free houses but this undermines and defies the purpose of a statute of limitations,” said foreclosure defense attorney Roy Oppenheim, who is fighting a high-profile foreclosure deadline case in Boca Raton in which homeowners stand to win a multimillion-dollar waterfront mansion. “This is going to create a bizarre and unintended set of circumstances.”
In Friday’s ruling in U.S. Bank National Association v. Patricia J. Bartram, et al., the key issue was when the clock started ticking on the five-year deadline. Many foreclosure defense attorneys agree that happens at the time of “acceleration” — when the bank decides after a series of missed payments that the entire loan amount is due.
That typically occurs when the foreclosure is filed with the court. Bartram’s foreclosure was filed in May 2006 by the Law Offices of David J. Stern, which closed in March 2011 after allegations of wrongdoing.
In May 2011, the court dismissed the foreclosure after the bank missed a conference. “The record does not reflect what was occurring in the bank’s foreclosure case for the intervening almost five years,” Friday’s decision says.
Starts Anew when each mortgage payment is missed:
Eventually, the court canceled the note and mortgage and said the bank no longer could enforce its right to collect the debt. But on appeal, it was decided the five-year deadline to collect started anew when each mortgage payment was missed. That essentially means the bank is under no deadline to refile for the life of the mortgage, plus five years, said attorney Mike Wasylik, who represents Lewis Bartram. Lewis and Patricia Bartram are divorced. ”
This case is really important and has a massive footprint across the state,” Wasylik said. “There are easily thousands of cases this could affect.”
Short Sales and Foreclosures – 1099 Waiver of Deficiencies
The arcane implications of receiving a 1099 after a short sale or a foreclosure are as complex as the opening lines in Sir William Shakespeare’s’ Hamlet. Thus, the question is not; “to be or not to be” but, rather whether to waive a deficiency or not.. and that is the question.
Roy Oppenheim, Oppenheim Law – esq, Florida real estate and homeowner defense attorney and national legal blogger explains the differences in short sales and foreclosures for Florida Homeowners regarding taxes, the IRS and waivers of deficiency. You can also watch this video here.
Full Act is here:
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them? To die: to sleep;
No more; and by a sleep to say we end
The heart-ache and the thousand natural shocks (70)
That flesh is heir to, ’tis a consummation
Devoutly to be wish’d. To die, to sleep;
To sleep: perchance to dream: ay, there’s the rub;
For in that sleep of death what dreams may come
When we have shuffled off this mortal coil,
Must give us pause: there’s the respect
That makes calamity of so long life;
For who would bear the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despis’d love, the law’s delay, (80)
The insolence of office and the spurns