The zombie cases are the ones that were dismissed without prejudice, meaning that they can be re-filed; because lawyers for the banks didn’t show up to hearings or the cases were dismissed due to legal and technical irregularities. Typically, such cases were handled by large foreclosure mills that had sloppy practices.

Now banks are getting a second shot at the cases, which will further clog the court system with even more cases. However, the backlog in the courts and the long periods of inactivity in the zombie cases does buy homeowners more time.

The future surge of cases also creates the danger that the “cookie-cutter” approach lambasted by Judge Jennifer Bailey, the head of the Miami-Dade civil court division, will once again be used by lawyers overwhelmed by the sheer number of cases to deal with. The problem is that the cookie-cutter approach was what allowed the banks and mortgage servicers to fraudulently foreclose on homeowners in the first place.

There is the potential, with the anticipated surge in foreclosure cases, for further fraud and abuse.

The irony is it could be happening with the exact same foreclosure cases that the document mills mishandled in the first place!

Is homeownership still part of today’s American Dream? A recent article in the Wall Street Journal shared some old school advice on buying a home in today’s economy, more along the lines of Depression Era thinkers versus Baby Boomer spenders.

1. Buy what you can afford without scrimping on other needs. If you need to save for retirement or college, save. Don’t think your Florida home is going to pay for them.

2. If you need to move in less that seven years, then rent, don’t buy. You will be hard pressed to break even on your Florida home unless you live in it for a long time.

3. Values could stay depressed for many years. The only way you can plan to build equity in your Florida home is to pay down the mortgage.

Whether buying or selling a Florida short sale or foreclosure or renting; make smart decisions in light of today’s economy. Today’s housing market is still unraveling.

Some feel like what the banks have done to the American homeowner is criminal. And they just might be right.

According to a investigation by CBS I-Team reporter Al Sunshine, 50 state attorney generals are investigating the foreclosure debacle. As it turns out, the bank you borrowed money from probably does not own your mortgage anymore. Many mortgages have been bundled up so they look safe for investors and then sold off, Sunshine says.

He estimates 95% of mortgages are now controlled by what’s called a servicer, which is a bank or financial company which handles your mortgage and monthly payment. They are the ones who collect fees and penalties from home owners, and according to Sunshine’s report, they are the first ones to make yet more money when a home is foreclosed.

And therein lies the problem with the mortgage system, foreclosure attorney Roy Oppenheim told Sunshine.

“It was in their interest to have the foreclosure go through the process versus a modification,” Oppenheim explained. “Typically the way the servicers were compensated, they would receive more compensation through a foreclosure than through a modification.”

So the interests of the borrower are in constant conflict with the interests of the servicer. Since they are often not the bank that lent you the money in the first place, there is little risk to them, and foreclosure is better for their bottom line.

“The whole process is wrought with conflicts of interest. It’s just a rotten bag of apples,” Oppenheim concluded.

If this is the boat you’re in right now, Oppenheim Law is here to help. Click here to view the entire story on CBS4: The Secret Truth about Foreclosures, or check out the video below:

We’re just half way through the first month of 2011 and foreclosure fraud continues to make headline news. Tonight Oppenheim Law will be in Boca Raton hosting our monthly foreclosure defense workshop “The Future of Foreclosures”.

Will this be the year of the short sale?

How will the Feds help (or not help)?

What is the best foreclosure bailout for you?

This week I spoke to Wall Street Journal’s Market Watch, Florida’s Sun Sentinel and DebtWire, a global financial news service, about my perspective on foreclosure defense in 2011.

Tonight we will answer your questions live online or in person.

Tune in to the webcast via Oppenheim Law TV for
The Future of Foreclosures Workshop
Tonight at 6 p.m.,
or come in person to the Boca Raton studio located at
95 NW 11th St., Boca Raton, FL 33432.

Our monthly workshop is designed to walk homeowners through various foreclosure defense strategies such as short sales, strategic default, loan modifications, deed in lieu and deficiency judgments, taking into account today’s law and the homeowner’s legal rights.

If you are a Florida homeowner facing foreclosure, you may not be thinking about the long-term economy. But Roy Oppenheim, a Florida foreclosure defense attorney, sees the big picture and how it relates to the foreclosure crisis.

Oppenheim offered Florida homeowners his insights on the economy in a recent interview on the talk show “Mind of Money” with Asset Protection Attorney Douglass Lodmell.

As Oppenheim sees it, Florida homeowners—whether they are in a foreclosure crisis or not—have to recognize that the current state of the economy is the new norm. There isn’t going to a rapid change in today’s economy.

“We need to look at what happened in Japan with the lost decade. This could be a lost generation,” Oppenheim says. “I’m not trying to scare people, but you need to understand that the Federal Reserve throwing $600 billion into the economy to prevent it from deflating further suggests that there are real serious problems with this economy.”

What is the way out? Oppenheim offered three possible paths Florida homeowners should be aware of as they make decisions about foreclosure defense strategies. The U.S. could opt for any of these three strategies:

1. The Third World Approach: Inflating the U.S. dollar so that Florida homeowners have more money, debt is worth less and easier to pay off, but real estate is worth more. Oppenheim says this is the current direction the government is taking.

2. Open the Borders: Allowing immigrants who can invest $250,000 or more into the economy to settle here. If upper middle class people from around the world come to America, it will create a demand for products and services.

3. Green Energy Revolution: Finding alternatives to fossil fuels, figuring out how to store and transport that energy, or even finding a way to remove the carbon footprint from fossil fuels. Oppenheim says this would be as significant as the Industrial Revolution and would change the trajectory of the U.S. forever.

What do you do if your house is in foreclosure? Do you put your head in the sand and enter into the financial crisis? Or do you launch a foreclosure defense?

Roy Oppenheim, a respected Florida real estate and foreclosure defense attorney, offered strategic advice for Florida homeowners in a recent interview on the talk show “Mind of Money” with Asset Protection Attorney Douglass Lodmell.

“The bank crisis is a wonderful opportunity to literally engage the bank in hand to hand combat. There’s an old expression that says to keep your friends close and your enemies closer. You need to bring the bank to you,” Oppenheim says.

Engage the bank like you would engage the enemy.

“Once you’ve engaged the bank, you can then attack them on their fraudulent documentation, if there is any. And more importantly you can engage them to do a short sale, a loan modification or a deed in lieu of foreclosure, or maybe a restructured foreclosure. There are many options.”

Of course, Oppenheim says, before you engage the bank you need to assemble a foreclosure defense team. The good news is the bank is usually willing to negotiate. Oppenheim says banks understand it could take 18 to 20 months—at a price tag of about $1,000 a month—to carry a piece of property that’s in foreclosure. The bank also risks sanctions for any illegal activity with the mortgage. Oppenheim says it’s in the bank’s best interest to find some sort of workout.

What if? The dreaded deficiency judgment.

“At the end of the day, our end game is to make sure that at all costs there is not a deficiency judgment against our clients.” None of our clients that we have defended from the beginning have had a deficiency judgment entered against them. “That may change. If we exhaust all options, we would consider bankruptcy.”

What if Florida homeowners have foreclosure issues and also many thousands of credit card debt? Oppenheim looks holistically at the situation and determines how best to approach it. That may mean asset protection, foreclosure defense, or filing for bankruptcy.

Right now, with banks in crisis, everything is negotiable. As Oppenheim sees it, now is the time to ask the tough questions and decide on the best strategy for your foreclosure defense.

More on what Oppenheim thinks about deficiency judgements and protecting your assets.

Below are some questions and answers from the workshop:

How does a lawyer get the judge to do the right thing in following their responsibilities of a judge?

If a judge makes a bad decision, a judge can be appealed. If the judge is not following law or makes a bad decision, they can be appealed and the decision can be reversed

What typically happens when the bank trying to foreclose does not own the mortgage? Does it get dismissed until the proper mortgage holder is located?

It should get dismissed as a matter of law. However, judges love to give banks a lot of chances to get it right, so the judges will usually allow the case to continue to the summary judgment stage. At that point, if the bank still can’t produce an assignment then the summary judgement will be denied. This is not good law, but rather the judge made lore that has no precedence other than for appellate courts to tell the lower courts to knock it off. That happens frequently these days, but not often enough.

Around 11 million Americans owe more on their mortgages than their homes are worth. Some economists suggest that the government should encourage banks to write down the principal of some underwater mortgages.

How can you guarantee that you are free from any deficiency judgment with a severely underwater mortgage?

As discouraging it is to lose your place to foreclosure, borrowers may still be liable for the deficiency amount. It’s the difference of what’s owed on the house loan and what the bank could sell for at an auction. “Deficiency judgments” can come after ex-borrowers at any unexpected time frame after they have lost their house.

It can be an unpleasant shock for borrowers who have sold their home via a short sale arrangement where the bank approved selling the property for an amount less than the mortgage debt.

Unlike many other states, in Florida, if you are foreclosed upon and the mortgage balance exceeds the property’s value, the Bank will likely try and come after you for the balance. That process is called a deficiency judgment.

If the Bank gets a deficiency against you, the deficiency judgment will be recorded in the public records and will be collectable for up to 20 years. In fact, even after you die the Bank can collect against your estate.

Unfortunately, when South Florida homeowners walk away from their mortgages without hiring an attorney they expose themselves to the likelihood of having their wages or bank accounts garnished. Oppenheim Law tries very hard to avoid our clients ever being subjected to a deficiency. Whether we end off modifying the loan, arranging a short sale or referring the client to bankruptcy counsel, our Florida foreclosure defense attorneys will not let our clients be subjected to the indignity of having to be enslaved to a debt for up to 20 years after loss of the property.

Oppenheim Law has not yet had a deficiency judgment entered against any of their clients. Some clients only come to our South Florida foreclosure defense attorneys after the bank has foreclosed. Oppenheim Law still defends these clients against the bank’s attempt to have a South Florida deficiency judgment entered against them. We challenge the banks and frequently are able to negotiate an acceptable solution.

Strategic default is increasing daily for those who have no other choice. How can Oppenheim Law help homeowners?

Strategic default, or strategic foreclosure, is a process by which homeowners who can afford to continue making their monthly mortgage payments, make a calculated financial decision to default on their mortgage in order to improve the likelihood of getting out from an underwater property.

Strategic default is also often the first step for homeowners looking to execute a short sale, loan modification or deed-in-lieu of foreclosure. Strangely, banks will usually not even consider a request for any of these real estate options unless a borrower is at least one month behind on their mortgage payments. Homeowners are being forced into default by the banks’ inefficiency and unwillingness to offer meaningful assistance.

After doing the math and watching property values shrink in some instances to less than half of what’s owed on a mortgage, more than 1 million homeowners joined a growing group who have allowed the banks to file foreclosure against them in order to get a strategic advantage in negotiations with the bank.

According to the Chicago Booth/Kellogg School Financial Trust Index, strategic default accounted for one third of all the first quarter foreclosures in 2010.

If strategic default is an option you are considering, it is suggested you consult an attorney. Oppenheim Law can protect your rights during the strategic foreclosure process, prevent deficiency judgments and represent your interests during negotiations with your bank.

Need help? Contact Oppenheim Law today.

Roy Oppenheim with daughter Wendi Oppenheim

The game was close for most of the night and down by a touchdown. It was late in the fourth quarter. And then the big play came in; the quarterback threw from about the 35-yard line to the team’s star receiver in the end zone.

But wait. There were a series of flags and the refs called offensive pass interference and two personal penalties. The receiver had pushed himself off the defensemen propelling him into a position to catch the ball.

The Verdict: Touchdown does not count and the ball was placed back 30 yards further down field. The refs did their job and the fans accepted their fate.

Banks cheated, did not play by the rules

That’s when it all clicked for me. The banks cheated when they filed their foreclosures. They did not play by the rules. And the refs did not have the backbone to protect the integrity of the game.

If you check the “game” rulebook that is the most important function of a judge: To protect the integrity of the judicial system. Not to show favoritism, to remain impartial, and to be fair.

What the GMAC, JP Morgan Chase, and Bank of America Foreclosure Fraud crisis is demonstrating to the world is that when the judiciary does not apply the rules fairly they can jeopardize the integrity of the game.

Had last night’s and previous penalties not been properly called, football as we know it, would not be the most popular spectator sport in the US.

It is the RULES that we all know and respect! The new video replay ref is an added form of protection to ensure that no illegal play is permitted to go forward in the game. What a PR problem it would be to allow 250 million people to see a bad call on TV and YouTube!

So why did the judges who are all licensed attorneys and have taken various oaths of office allow this spectacle to happen? The answer is plain and simple. They were playing to the home team fans as opposed to their professional obligations. In this case the home team was the banks, their attorneys and a governmental apparatus that wanted the foreclosure cases disposed of as quickly as possible at all cost.

Who cares about the rules or about offensive pass interference? That receiver last night would have caught the ball anyhow, is what until days ago the judges were saying. I say NO!

Let’s hold the judicial system accountable

As avid sports fans and members of a democracy viscerally understand RULES count and playing fair is a hallmark of our system. I think we need to hold the judicial system accountable.

I don’t want to hear the excuses. I couldn’t see the play; my line of sight was blocked, I was afraid that if I called the play according to the rules, the game would go into over-time; it was unwritten not to enforce certain rules; or better yet, I am not in good-enough shape to run up and down the field. Or come on… you don’t really expect me to count the number of players on the field?

Let’s be blunt: the judges were co-opted by having “rocket dockets”

The judicial system was expected to become the private collection agencies of the banks. The judges assumed that the banks and their attorneys would not cheat. All across this nation the judges were caught sleeping in the drivers seat. Time and time again homeowners were denied their procedural due process rights to present evidence and confront the banks.

May I respectfully suggest that our esteemed judiciary spend a little more time with their sons and daughters at Friday night high school football games and ask themselves what would happen if they kept making bad calls all night, every game?

Roy Oppenheim

From the trenches

P.S.

I continue to help Florida homeowners learn more about developing stories concerning bank fraud like today’s Sun Sentinel story and also last night’s CBS Investigative Report headline Mortgage Foreclosure Nightmare. I will focus on mortgage foreclosure bank fraud in my foreclosure defense workshop on Wednesday October 6 at 6pm.