Blogs

One of the best ways to learn more about your options when considering filing bankruptcy is to do your homework by researching what is available. You can also discuss your situation with a qualified bankruptcy attorney that can provide further insight to help you make an informed decision.  Even though you may feel as if […]

Recent Developments in the Collection of Deficiency Judgments after Mortgage Foreclosure

For the past 30 years in Miami-Dade County, Florida, large mortgage companies and banks have virtually never pursued a "deficiency" judgment after a mortgage foreclosure on a first mortgage.   The best advice at the time was not to be concerned about a deficiency judgment.

Recently though, things have apparently changed.  I recently conferred with a client who received a letter from a company that bought the right to pursue a deficiency after a foreclosure sale. It threatened to sue them for an alleged $200,000 deficiency.

The law firm that wrote the threatening letter was a reputable law firm. I checked out the company that held the debt. It was actually a legitimate company - Dyck O'Neal, Inc. - in Texas - engaged in the business of buying up bad debt of various types for pennies on the dollars for many years.

Deficiency Judgment

A typical residential mortgage foreclosure action usually only seeks a judgment setting a foreclosure sale of the real estate. It does not seek a "money judgment" upon which the mortgage company can seek "execution" or collection of the sum of due.   This judgment of foreclosure only allows the mortgage lender to set a foreclosure sale.  A deficiency judgment can be pursued like any other judgment for a debt.

Limitation on Amount of Deficiency

The new "Florida Fair Foreclosure Act" effective on June 7, 2013 provides a limitation on the amount to be allowed as a deficiency regarding foreclosures of owner-occupied residential real estate. The amount to be awarded may not exceed the difference between the foreclosure judgment amount (or in the case of a short sale, the outstanding debt) and the fair market value of the property on the date of the foreclosure sale.

One-Year Statue of Limitations to Seek Deficiency Judgment

The new act also provides in Florida Section 95.11(5)(h) that for actions file on and after July 1, 2013,  a claim of deficiency, subsequent to the foreclosure of one-to-four family residential properties, must be filed within one year from the day after (1) the certificate of title is issued or (2) the mortgage lender accept a deed-in-lieu of foreclosure.  For other actions, a deficiency claim must be brought by the earlier of (1) five years after such action accrued or (2) by July 1, 2014.

(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.

The Typical Co-Debtor Protection In most circumstances, when only one co-debtor files for bankruptcy protection, the non-filing co-debtor usually can maintain the property provided that the co-debtor continues to make timely payments. An interesting situation arose in a recent case. The particular property is a boat. Husband and wife both signed for and are responsible+ Read MoreThe post What Happens When Only One Co-Debtor Files For Bankruptcy? appeared first on David M. Siegel.

You probably think you’ll be dealing with your private student loan debt for the rest of your life.
Before I began to practice in the field of student loan law, I would have agreed with you.
And even now – after having done this work for awhile – sometimes I know it feels hopeless.
And if you don’t start playing by a different set of rules, you’re correct in thinking that private student loans are a financial death sentence.
But turn the tables on the private student loan companies and you’ve got a fighting chance. In fact, the odds are stacked against them.
Here’s what you need to do to beat them at their own game.

1. Choose rent over private student loan payments. I’ve seen lots of people struggle to make their private student loan payments year after year, many times falling behind on basic living expenses to do so. But remember that life gets a lot tougher if your electricity is turned off because you can’t pay the bill. Pay the landlord and the utility companies first, private student loans later.
2. If you fall behind, pick up the phone. Falling behind on private student loan payments means you’ll get phone calls from the lender and, eventually, debt collectors. They tend to call more often if you don’t answer the telephone when it rings. When a call comes through, do what you can to pick up the phone.
3. Demand that the calls stop. Debt collectors are subject to the Fair Debt Collection Practices Act, which governs the way in which collections can take place. For California residents, the creditor is covered by the Rosenthal Act, which essentially applies the FDCPA to creditors. Once you request in writing that the collector stops calling, they’re no longer allowed to do so.
4. Request documentation. Under the FDCPA, a collector must provide verification that you owe the debt, as well as the amount due, once you ask for the backup information. Exercise your rights by making that request in writing.
5. Dispute the debt if necessary. If the collector can’t verify the debt (or if they do and you don’t agree with what they provide), you have the right to note your dispute in writing. Once that happens, the collector has to update their credit reporting to note that you dispute the validity or amount of the debt.
6. Know how long they have to collect from you. By law, private student loans are subject to time limitations to file a lawsuit against you. New York has a statute of limitations of six years from the date of default, and California has a statute of limitation of either four or six years (depending on how the private student loan company decides to approach a lawsuit). Knowing how long you have to worry about the debt is instrumental in putting your mind at ease.
7. Keep notes. If a debt collector or the private student loan company steps over the line, you want to be able to give your lawyer the particulars – who, what, when, where, and why. If you don’t have everything in writing, you can’t give your lawyer anything to work with.
8. Check your credit report regularly. Creditors report the amount of money you owe, date of last activity on the account, and the status of payments. Credit reporting agencies list not only that information, but also whether there are any lawsuits or judgments against you. Watching your credit report like a hawk, you’ll be in a better position to realize if something’s amiss.
9. Make all deals in writing. Debt collectors may call and offer you a sweetheart deal to settle the private student loan for a lump sum or over time. But unless you have it in writing, there’s no protection if the collector conveniently “forgets” or doesn’t bind by the terms of the deal.
10. Consult a tax professional before settling. If a creditor forgives more than $600 of a debt, it must send you an IRS Form 1099 – and you may be required to pay taxes on the forgiven portion of the debt. There are certain exceptions and ways to minimize the damage, but you’ll never know how good of a deal you’re really getting unless you sit down with a tax professional in advance to map out how it’s all going to pay out.
11. Watch your mailbox. If a private student loan company wants to collect, they need to file a lawsuit and you must be served with notice either personally, by mail, or in another legally acceptable way. Failure to answer the lawsuit will result in a default judgment – and automatic loss for you.
12. Don’t mistake a lawsuit for a judgment. Just because a private student loan lawsuit lands at your feet (literally or figuratively) doesn’t mean you lose. There are a host of defenses that may be available to you, and there’s always a chance that you may win the case.

If you’re in the mood for a bonus tip, here’s one for you – keep a student loan lawyer in your back pocket. By working with an attorney who works with private student loan issues on a daily basis, you’ll be in a better position to assert your rights properly.
A lawyer will help you stop illegal collection tactics, review credit reports, and defend against lawsuits. You’ll be able to head off problems as they arise, and get quick answers to your most pressing questions.
So don’t let the private student lenders beat you – take action to beat them at their own game.