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The State of Foreclosure: Same As It Ever Was, Same As It Ever Was

Same As It Ever Was -- Same As It Ever Was

Foreclosures in Florida – Same As It Ever Was (Courtesy: Talking Heads)

Maybe it is because foreclosures were merely a blip on the radar during the presidential election.

Maybe it is the fact that the home prices are looking healthier than they have in years.

Regardless, some people have been lulled into a false sense of security about the state of foreclosures here in South Florida. To my amazement, I will get the occasional phone call, asking if we are still doing foreclosure defense.

The short answer is, of course! While there are less homes starting the foreclosure process, there remains a backlog of foreclosure cases in Florida and in other judicial foreclosure states. Banks are still trying to illegally throw people out of their homes, and so I am still defending many of those homeowners.

Florida remains on the top of the list for states with foreclosure activity, with a filing rate more than double the national average. In Dade County, there are still 60,000 foreclosure cases on the books. In Broward there are 43,000. 1,800 new foreclosures were filed just in Broward County alone last month, which is a substantial increase.

This is partly due to the return of the zombie foreclosures. Those are the David Stern files that were dismissed by the court. Now those cases have now been transferred and they are coming out of storage.

New attorneys are taking these cases, and those homeowners will have to dig in their heels and start their fight all over again.

The reality remains is that the judicial system is still trying to push all of these cases out as quickly as possible.

Here is the good news, if you want to call it that. The process of defending a homeowner in 2012 is not that substantially different from the days when the housing bubble first burst. The advice I give my clients now is the same advice I gave them back in 2008.

You have to stand your ground. That has never changed. Unless you stay in your home and fight, you’re going to lose.

Options will only present themselves once you engage in one-on-one mortal combat with the banks. But you have to prepare yourself for the reality that our courts, even now are ill-prepared to handle the backlog that remains, and the judicial system in Florida is still trying to push these cases out as quickly as possible.

This creates opportunities as well as problems for Florida homeowners. Frequently I am seeing judges forcing both parties to go to trial even when they’re not ready.

That is a big problem for the banks. If they don’t have their witnesses, their documents, their affidavits, their assignments, and everything else that they need under the rules of civil procedure, then the chances bode well their cases will get dismissed.

But the flip side is that if your lawyers aren’t prepared, they can’t prove that the bank isn’t prepared. It’s a double edged sword, but from my perspective, it is still good for homeowners when the the bank’s hand is forced.

In many cases, the banks will not be ready. Over the last few months, as we’ve prepared for trial we have received motions to dismiss from opposing counsel at the last minute, many times at the eve of trial.

The other trend I am noticing is that even now, some judges just still don’t understand the law, and think that we are still in 2008. At a recent legal seminar I attended a number of prominent South Florida judges said that here are few if any valid defenses that a homeowner has in a foreclosure case. That is categorically wrong on every level, and frankly I am disappointed that any judge would make such a statement openly.

I heard more than one judge claim that the rules of civil procedure were never suspended in foreclosure cases, yet we all know that they were in 2008 and 2009, and it wasn’t until attorneys such as myself pushed back in court and in the press, that we forced the judiciary to comply with the rules of law.

So as always I remain in the trenches of foreclosure defense, fighting the good fight to preserve the integrity of the legal system, judicial system and the Constitution of the United States.

From Wall Street to Main Street, real estate attorney Roy Oppenheim is the co-founder of Oppenheim Law in Fort Lauderdale, Florida, and Weston Title.

Foreclosure Defense Attorney Roy Oppenheim

Tags: filing rate, Florida Homeowners, foreclosure, foreclosure activity, foreclosure defenses, foreclosure process, foreclosures state, judicial foreclosure, land law, national average, personal finance, Real Estate, South Florida, united states foreclosure crisis

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