Frequently Asked Questions

I’m so upside down in my home, it doesn’t make sense to make my payments. Should I just walk away and let the bank foreclose? This is a question a lot of people are facing today, and, unfortunately, there is no simple answer. While many homeowners are taking what has been called a “strategic default” or “strategic foreclosure,” there are many things to consider and every situation should be looked at closely. A strategic default is where a homeowner elects to default under the loan and allow the property to be foreclosed. This occurs when the property has so depreciated that it is unlikely to regain its value in time to be of any value to the owner. Some important considerations are the impact to your credit rating and future borrowing, the availability of a short sale option with a substantial forgiveness of indebtedness, the prospects of a deficiency judgment and the availability of bankruptcy relief. Before making this decision, you should get advice from an attorney with experience in foreclosure defense and loan modifications.

I’m waiting for approval of a short sale from the lender, but just got served with the foreclosure lawsuit. Can the lender foreclose? Should I answer the Complaint? Yes, on both counts. The lender can proceed with the foreclosure but may not set the sale date while the borrower is awaiting short sale approval under HAFA. If you don’t file an answer within 20 days of your receipt of the lawsuit, a default can be entered against you and any defenses you might have against the foreclosure will be waived. This allows the lender or servicer to obtain a judgment much more quickly. An attorney can not only defend you against a foreclosure judgment but also assist in reaching your short sale resolution with the lender.

I rent a condo and my landlord refuses to repair the air conditioning in spite of my requests. Can I withhold my rent until he does so? Yes, under certain conditions. If the lease does not impose the duty of repair or maintenance of the HVAC on the tenant and you give the landlord written notice that substantially conforms with the notice provided in Chapter 83, Fla. Stat. The notice must identify the problem, and give the Landlord seven days to repair. Only then can you withhold your rent, if the repair is not performed. Chapter 83 is strictly construed so it’s important to use the right language in your notice. Check out www.collierclerk.com under Landlord-Tenant forms for a 7-day notice which tracks the statutory language.

I just received a notice from the condo association requiring that I pay my rent to them instead of the owner/landlord. Can they do that?

Yes, under certain conditions and with proper notice. The Florida legislature recently passed a law that allows a condo and homeowner’s association to obtain the rental payments from a tenant where an owner is delinquent in paying his/her monetary obligations owed to the association. The law provides that if you make payments in good faith reliance on the association’s notice, you are not subject to a claim by the owner.

I am renting a house that is in foreclosure. What will happen if the bank forecloses before my lease is up?

Congress passed the Protecting Tenants at Foreclosure Act of 2009, which became effective in May of 2009. Federal law now provides that a tenant may occupy the premises until the end of the lease. If the lease is month-to-month, the tenant has 90 days to vacate after the property is sold at foreclosure sale. There is one exception to this rule: if the buyer of the property intends to live on the property, the tenant must vacate after having received 90 days notice.

Do I really need a real estate attorney when purchasing property? Although you can certainly buy property without legal representation, the benefits of having a real estate attorney represent you and your interest in the transaction can not be overstated, especially if the property is bank-owned or was purchased by the seller at a foreclosure sale. You may have heard about some lenders filing erroneous or fraudulent papers to support their foreclosure judgments. If a foreclosure judgment is based on a fraudulent affidavit, the judgment and sale may be voidable. This creates a serious defect that can affect your title. In addition to the unique situation regarding foreclosed properties, there are any number of issues that can arise before a closing takes place during the due diligence phase. It’s important that you understand your legal rights and obligations before you arrive at the closing table. Don’t rely on the title/closing agent or the realtor to protect you. Only a real estate attorney can fully advise you and has the professional responsibility to protect your interest. Most attorney fees in real estate transactions are fixed fees and can be ascertained before you hire an attorney. Just ask!

Frequently Used Sites

Local Court Informationwww.collierclerk.com
www.leeclerk.org
www.ca.cjis20.org
www.colliercountybar.org

Government Sites

www.collierappraiser.com
www.colliertax.com
www.colliergov.net
Collier County Code Enforcement
www.leepa.org
South Florida Water Management District
www.lee-county.gov

Resources

Florida Eminent Domain in a NutshellIn Florida, the condemning authority must first make the owner a written offer of compensation for the property before it can take title to the property. If the property owner and the condemning authority cannot agree on the compensation due the owner, the authority must then file a legal action to acquire title (or “take”) the property. This action is called an eminent domain action and the procedures are set forth in Chapters 73 and 74 of the Florida Statutes.

Making Homes Affordable Program—What is it? And how can it help me?If you’re like so many homeowners today, you’re facing foreclosure and have many questions about what relief is available to you under the Making Homes Affordable Program. The MHA Program is a comprehensive strategy initiated by the Obama Administration to help millions of homeowners now facing devaluation of their property and possible default on their loans. MHA consists of a number of different programs designed to address the varied circumstances in which homeowners find themselves. You’re probably heard of HAMP, Homes Affordable Modification Program, which has been in place since 2009. There are also programs to refinance your mortgage (“HARP”), to modify second mortgages (“2MP”), and to offer non-modification alternatives to foreclosure, such as short sales, in cases where the homeowners don’t qualify for a modification (“HAFA”). All servicers for loans guaranteed or owned by Fannie Mae of Freddie Mac are required to participate in MHA. Other loan servicers are strongly encouraged to participate through the many financial incentives and loss sharing provided by the government.

REFINANCE OPTIONS FOR UNDERWATER HOMEOWNERS----NEW CHANGES TO HARP

On October 24, 2011, the Federal Housing Finance Agency, with Fannie Mae and Freddie Mac, announced a number of changes to the Home Affordable Refinance Program, otherwise known as HARP. The program was instituted in 2009 to assist those homeowners who were current on mortgages owned or guaranteed by Fannie Mae or Freddie Mac, but unable to obtain a traditional refinance because their property values had declined below what they owed on their homes.