The Oppenheim Law editorial team found this ironic:  A drug dealer has more constitutional rights to protection from the government in his home than your average homeowner in foreclosure.

In a case being appealed to the United States Supreme Court, the Florida Supreme Court recently held that because the “home” has a long standing history of receiving additional constitutional protect

Interestingly enough, the U.S. government, through Freddie Mac and Fannie Mae, is the single largest investor of residential mortgages. So what this really means is that the government can steal your house through bad loan paperwork and fraudulent foreclosure practices, but the local drug dealer is safe from a sniff by Franky the Drug Sniffing Dog.ions, using a drug sniffing dog outside the front door of a drug dealer’s house constituted an illegal search and seizure under the Fourth Amendment. Yet this same court has allowed banks and investors to use the lower courts in Florida as their own private collection agency.

This is yet one more example of the absurd turn that this country has taken during the real estate crash and subsequent foreclosure crisis, putting the government into the position of protecting the sanctity of a home owned by a drug dealer violating criminal laws, while stripping the same protections from one who is just down on his financial luck, in part due to the banks themselves.

The English belief that “every man’s house is his castle” formed the basis of the Fourth Amendment, and yet now has been convoluted to only protect criminals from prosecution, while leaving homeowners in foreclosure high and dry against a system that steamrolls their constitutional rights in the interest of protecting big banks, Wall Street, and now Uncle Sam.

The Florida Supreme Court stated in its holding that a “dog sniff” was “a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment.”

Notably, numerous bank executives have been quoted as saying egregiously negative things about homeowners who admittedly cannot afford their payments, but who have legitimate defenses against banks who have attempted to ignore constitutional and statutory rights as homeowners.

Essentially, these lenders and their leaders who are paid tens of millions of dollars a year have taken the position that “these homeowners haven’t paid, so who cares about their rights and any defenses they may have.” Yet, for a drug dealing homeowner whose house is full of drugs, the fact that his house may have been subject to unlawful search and seizure is not only highly relevant, but in fact could prevent any prosecution of him, even though he clearly is guilty.

The question raised by this case is: how can the Constitution protect drug dealers from “Franky the Drug Sniffing Dog,” while leaving thousands of homeowners homeless at the hands of illegals seizures by “Freddie and Fannie – the government investors?”

The Constitution was not intended to protect only part of the population. The Court should interpret the Constitution evenly, and should not work to protect criminals over the average American taxpayer suffering at the hands of a broken economy.

If you are in or near foreclosure and need help keeping your home, please contact the team at Oppenheim Law.

Foreclosure defense attorney and legal blogger Roy Oppenheim shared his thoughts on the Florida Supreme Court’s mandated mediation process with Miami Herald writer Harris Meyer in an article published on Sunday about Florida foreclosures.

“I enjoy mediations and find them very effective,” Oppenheim said. “But I won’t mediate unless the bank has done its homework.”

Oppenheim went on to explain mediation can be successful for homeowners and the banks only if the mediator is skilled, the lender has read the documentation and also knows the value of the property and the holding costs.

Oppenheim’s comments follow the news that foreclosure filings in Broward have fallen from 51,670 in 2009 to 17,565 in the first five months of 2010. However, as Oppenheim Law explained on the South Florida Law Blog in May, this decrease in Florida foreclosure filings can probably be attributed to the new rules promulgated by the Florida Supreme Court requiring every residential mortgage foreclosure complaint must be verified and prove that the plaintiff is the actual owner and holder of the promissory note.

Oppenheim Law wrote, “Until now, banks have been abusing a Florida statute allowing them to file a foreclosure based on a “lost note.” The problem: the notes aren’t lost; the banks are just too lazy to look for them. This new rule is halting foreclosure filings in their tracks, as banks scramble to find the notes so they can foreclose.”

Also less encouraging is the fact that commercial foreclosures are increasing, and concerns of increased residential foreclosures due to the re-setting of rates under adjustable-rate mortgages may accelerate, according to the Herald.

Want to learn more about mediation and foreclosure? Join Oppenheim Law for our free monthly foreclosure defense workshop next Wednesday, July 7 @ 6 pm and check out the entire Miami Herald foreclosure story in the Oppenheim Law Newsroom.

Until now, banks have been abusing a Florida statute allowing them to file a foreclosure based on a “lost note.” The problem: the notes aren’t lost; the banks are just too lazy to look for them. This new rule is halting foreclosure filings in their tracks, as banks scramble to find the notes so they can foreclose.

Before, foreclosure mills were simply filing a complaint and claiming a ‘”lost note,” without actually ever looking for it. Now, the courts are requiring attorneys to prove the banks have at least attempted to find the note. Prior to this rule, banks would file the complaint, and the note would always mysteriously appear four months later IN ALMOST EVERY CASE.

An article published today in The Sun-Sentinel found foreclosure filings have dropped 36% since last month in South Florida. Local attorneys and judges are attributing this to the colossal mess at the banks, as they scramble to find the notes.

Before, they had plenty of time to look for it. Now, they can’t do anything without it. While this might seem like good news for the overwhelmed court system, in reality it is simply delaying the inevitable. Like the receding waters before a tsunami, we can expect a substantial increase in filings once the banks begin finding these “lost notes,” and then the entire system could drown.

Anthony DiMarco of the Florida Bankers Association sees it a bit differently, claiming the decrease in filings is due to the banks’ increased number of loan modifications, and an increased willingness to approve short sales.

GIVE ME A BREAK!

Based on raw numbers, DiMarco is dead wrong! Although Obama’s Making Home Affordable plan had promised over 3 million loan modifications by now, in reality the banks have accepted only 300,000. Furthermore, of these 300,000, only 13,059 were in South Florida. Thus, it is ridiculous to say the banks are being more cooperative.

Maybe DiMarco has never tried to call a bank to discuss a short sale or loan modification. If he had, he would likely find that being on hold for hours at a time, having the bank tell you they have lost your sensitive financial documents, and being constantly hung up upon, is not exactly “cooperation.” If DiMarco actually believes what he is saying, he should stand by the receding waters until he is swept out to sea by the forthcoming foreclosure tsunami.

From the Trenches,

Roy Oppenheim

Oppenheim Law, along with a team of lawyers, recently brought a series of class action suits against various banks alleging the banks charged improper fees at closing.  Specifically, these banks have been accused of the unlicensed practice of law for charging documentary preparation fees in connection with their mortgages.

Interestingly, the Florida Supreme Court recently heard arguments concerning this practice and we invite you to watch fellow counsel argue this case.

Ultimately because the state and federal government have woefully failed to regulate banking institutions, in part because of their cozy relationship between the banks, lobbyists, regulators and politicians, these class actions will send a strong message to the banks that their morally bankrupt conduct needs to change.

As Oppenheim Law continues to defend Florida foreclosures, we will invite you to participate in various class actions where together we identify systemic, unfair and deceptive trade practices by the banks.

If you believe you have a set of facts that arises to the potential of a class action, we invite you to contact us by email.

The Court acknowledged the system is not working. Foreclosure filings are expected to reach 456,000 cases in Florida by the end of 2010, a 50% increase from those in 2009. Thus, the Court felt compelled to do something.

My free foreclosure and real estate workshop on Thursday, January 7, at 6 p.m. is designed to review the “Year That Was” and preview the “Year That Will Be” based on the New Rules for 2010.

These new rules mean banks will be taken to task by the legal system. If conducted properly, a homeowner can demand proof of the Note and ownership of the loan prior to mediation. If the bank does not show up at the mediation or does not have a person with “true” authority to settle the case, the Court can issues sanctions against the bank and even hit the bank with attorney’s fees in some instances.

Until now approximately 75% of cases in mediation settled. That number should now shrink since the system will soon be overloaded with mediations. The real question is how to take control of this new strategic tool. Of course, one has to be mindful of the old saying, “Be careful what you ask for.”  That will certainly be the situation here.

You need to know your objective and have a plan or strategy. Is your desire to walk away without the bank coming after you, or is it to stay and renegotiate the loan to its new underwater value? Or is it to rent the house and just be able to stay?

Lots of creative options will arise that are good for the homeowner and even the bank. The key is knowing what is best for you and using this new opportunity as a way to fashion your own bailout.

I hope to see you all Thursday night, January 7th, at our free Florida foreclosure defense and real estate workshop as Oppenheim Law helps you achieve a New Bailout in the New Year. Again, I wish you all the best in 2010!