It should have been a straightforward case, but a clerical error put Bank of America on the losing end of a four-year foreclosure case Wednesday.
The bank won a final judgment against homeowner Heather Epstein in 2009. By the following year, she had vacated her Tamarac condo, and Bank of America gained control of the property with a new certificate of title.
The problem was the mortgage and all subsequent documents included an incorrect legal description of the condo.
“It’s about mistake upon mistake upon mistake,” said Epstein’s attorney Roy Oppenheim, who teamed with Donna Greenspan Solomon of Solomon Appeals Mediation & Arbitration and Jacquelyn Trask and Geoffrey Sherman of Oppenheim & Pilelsky. “And the mistakes continue to compound.”
A Brief Recap on the New Deficiency Judgment Deadlines
As I have explained in my previous blog posts and YouTube videos, July 1st 2014 was a key date in terms of deficiency judgments. If a bank had a foreclosure judgment entered in their favor at any time prior to June 30th, 2013 and the bank desired to file a lawsuit against the homeowner seeking a deficiency judgment, the deficiency judgment suit must be have been filed before July 1st, 2014. After July 1, 2014, under Florida Law, a deficiency judgment suit will have to be filed against the homeowner within one year after the entry of a foreclosure judgment or it can never be filed.
One of the reasons Florida legislators enacted this law is because they correctly recognized the burden and stress placed on constituents unsure of whether they were going to be sued for a deficiency years after a foreclosure judgment had been entered. It was a drag on the economy; plain and simple.
So who is Dyck-O’Neal, Inc.
Our firm has anticipated that there would be a rush by the banks to file deficiency judgment actions against homeowners as the clock ticked down to the July 1st, 2014 deadline. In fact, in June 2014 – Dyck-O’Neal, Inc., filed 323 deficiency cases in Broward County alone. We have also been retained to defend more deficiency judgment cases than the total amount of deficiency judgment cases we defended in all of 2013.
However, it is not just the banks doing the suing this time around. It’s also third party companies like Dyck O’Neal. Dyck O’neal, a company based out of Texas, has been filing thousands of deficiency judgment claims throughout the state and country. Since banks are well aware of the high costs in litigating claims against homeowners, most of them have chosen to act more efficiently and assign (sell) their deficiency judgment claims to third party collection companies like Dyck-O’Neal, Inc., for probably pennies on the dollar. These companies then attempt to squeeze whatever they can from homeowners in deficiency judgement actions and in many reported instances use harsh, harassing and aggressive methods to make the succumb to their demands. About 7 out of 10 deficiency judgment cases we are currently defending have Dyck O’Neal Inc. listed as the plaintiff. Dyck-O’Neal, Inc.,as been buying deficiency judgments from banks and going after homeowners like you since 1988. They are well versed and experienced in this game. You can be sure that they strategically chose which deficiency judgment claims to buy from the banks.
How Are We Defending Against Banks and Companies Like Dyck O’Neal?
During the initial “Complaint Stage” of deficiency judgment lawsuits, Oppenheim Law generally starts off by attempting to dismiss the entire case against the homeowner. We attack the deficiency judgment lawsuit filed by testing the legal sufficiency of the ‘Complaint.’ We also have seen many issues with ‘service of process’ in these new deficiency judgment lawsuits. During the “Complaint Stage” addition success is achieved by our associates challenging the substantive nature of the Complaint. For instance, many times the foreclosing bank discharged or “wrote-off” the deficiency amount after the foreclosure judgment was entered against the homeowner. In doing this, the banks received a tax credit by the IRS.
Oppenheim Law cases showed that the bank or their assignee (the companies they sold the deficiency judgment to such as Dyck O’neal) may not have a valid claim against homeowners since they have discharged the claim. If the deficiency judgment lawsuit is not completely dismissed during the initial “Complaint Stage” mentioned above, the Firm will move on to other, more technical strategies in defending your case. These strategies are unique and narrowly tailored to each of our clients’ specific needs based on the situation. Do Not Just Ignore the Deficiency judgement lawsuit
If there is one thing that the homeowner will take away from this blog-post is that the worst thing they can do if faced with a deficiency judgment lawsuit is to simply ‘ignore it.’ The entity filing the lawsuit wants you to ignore it! Why is that? If after 20 days the homeowner that has been served has not taken legal action, the Creditor, Dyck O’Neal Inc. or whoever is suing for the deficiency judgment will move for a Default Judgment. Once they are granted a Default Judgment by the court they will move to:
- Garnish your wages
- Cease your bank account
- Repossess your car
- Attempt to liquidate your assets
Stand Your Ground! To put this in lay terms, they will hound you (homeowner or property owner) like a wounded dog for up to 20 years. G-d forbid should you die, they can and will go after your estate, vigorously.
Do Not Give Up Your Rights To Defend Your Home – ‘Stand your ground ‘ means: Do not give up your rights to defend yourself. If you would like to know more or are interested in a consultation with one of our experienced attorneys currently handling several deficiency judgment cases, give Oppenheim Law a call at (954) 384-6114.
We HIGHLY recommend you retain an attorney if have been or anticipate being sued by Dyck O’Neal Inc. or by any other entity seeking a deficiency judgment against you.