Foreclosure and Loan Modification Blog

Case Dismissed Using the Florida Fair Foreclosure Act

[fa icon="clock-o"] Tuesday, June 16, 2015 [fa icon="user"] Jake Sterling [fa icon="folder-open'] successful loan modifications, florida foreclosure attorney, foreclosure deficiency

Disclaimer: These results should not be taken as a guarantee, as each case is unique. We have helped over 5,000 homeowners, here is one of their stories.

medium_6141737354-518457-editedIn March 2015, we were retained to represent a Florida homeowner who was being sued by Dyck-O'neal to collect a post-foreclosure deficiency in the amount of $34,078.93 plus interest, costs, and attorney's fees. We won his case, and he owed nothing.

In 2009, our client had walked away from their underwater home. Judgment was entered March 23, 2009,  and the home was sold at a foreclosure auction on June 2, 2009. Five (5) years and 22 days after the foreclosure sale, the deficiency claim was filed. Our client owed over $70,000 when their underwater home was foreclosed 5 years prior and were afraid of what owing this $35,000 could mean to them.

Our attorney quickly noted that there may be a SERIOUS problem with the time line in this case.

Violating the Statute of Limitations

fight-deficiency-judgmentDyck-O'neal, who purchased the debt with the intention to collect, violated Florida's Fair Foreclosure Act by filing this lawsuit 22 days too late. Florida House Bill 87 was passed in 2013, which provided that this case "must be filed within five (5) years after the action (sale) accrued (date of sale) or by July 1, 2014, whichever comes first."

We approached the Plaintiff's Attorneys and made them aware of the Florida Statute of Limitations as amended, and they were still unwilling to drop suit. Our hands tied, we filed a Motion to Dismiss the complaint and set it for hearing.

On May 29, 2015, the Judge of the Circuit Court of the Second Judicial Circuit of the State of Florida granted our motion and the case was dismissed. Our client is FINALLY FREE from the burden of their underwater foreclosure. We won against Dyck-O'neal and our clients don't owe a dime.

House Bill 87, the Florida Fair Foreclosure Act

“...to any [deficiency] action commenced on or after July 1, 2013, regardless of when the cause of action accrued. However, any action that would not have been barred under s. 95.11(2)(b), Florida Statutes (2012), before the effective date of this act must be commenced withing 5 years after the action accrued or by July 1, 2014, whichever comes first.”

A History of Deficiencies in Florida

Most of you know that the U.S. "Great Recession" began in December 2007 and was related to the financial crisis of 2007–2008 and subprime mortgage crisis of 2007–2009.

Typically the foreclosure sale price is usually much less than the total owed by the borrower. A “deficiency” is the difference between the foreclosure sale price and the total owed minus the fair market value of the house at the time of the foreclosure sale. In Florida, the promissory note holder can try to get a personal judgment against the borrower to recover the deficiency. [See: What is a deficiency judgmentand how can you avoid one?]

Florida has been the state with the biggest inventory of backlogged foreclosures. In June 2013, to speed up the foreclosure process and shorten the backlog, House Bill 87 or "Florida Fair Foreclosure Act"  was passed. One of the things this bill did was it reduced the time period for filing a deficiency judgment from five (5) years to one (1) year after foreclosure sale, and for older cases, granted until July 1, 2014.

About the Plaintiff – Dyck-O'Neal, Inc. A national purchaser, asset manager and servicer of real estate loans (a debt collector). So Dyck-O’Neal, Inc. negotiated with Fannie Mae and bought up thousands of stale foreclosure judgments for cheap because under the new statute of limitations were about to expire. Included in that portfolio was our client's foreclosure judgment.

Related: Who is Dyck-O’Neal, and why are they suing 10,000 Floridians for $1Billion? -- (Stopforeclosurefraud.com Aug, 2014)



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Jake Sterling

Written by Jake Sterling

Jake Sterling is Amerihope Alliance Legal Services' Homeowner Liaison. He helps to bring awareness and teach homeowners about foreclosure defense and options to save their homes.

About this Blog

Amerihope Alliance Legal Services is a leading loan modification and foreclosure defense law firm with attorneys licensed in 5 states. We have helped over 7,000 homeowners fight back and keep their homes.

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Our goal is to provide valuable information to help homeowners who are trying to obtain a loan modification or to stop foreclosure. You may schedule a free consultation at any time.

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