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THIS STRATEGY SEEMS TO BE ONE OF THE MOST EFFECTIVE STRATEGIES TO STOPPING A SALE…USE IT!!!
It’s no secret modifications are a sham for the most part. On the left you have the servicer calling or sending those one pagers requesting you to provide them with your financial status information while on the right you have David J. Stern, Marshall C. Watson or the Florida Default Law Group moving full speed ahead on the foreclosure lawsuit through the court. What to do what to do what to do!
Judges want to help homeowners and have been looking for reasons and lawful ways to do it. They’ve found one and attorneys and homeowners should pay careful attention since judges can’t scream it to you out loud. It’s one word…HAMP! That’s right the HAMP Program! Now of course we know the HAMP Program is pretty useless overall but it’s the next best thing to offering the judge a white chocolate moca grande from Starbucks! Why you might ask? Because HAMP is a federal requirement that allows judges to say “if the homeowner and bank are in talks who am I to stop those negotiations…sale is set aside/cancelled until there is an agreement or resolution!”
Motion practice is great and filing Motions to Vacate Summary Judgment and Set Aside The Sale are important however in Dade County and Broward County, the foreclosure process is taking on new forms. There are now hearings specific to the sale and the Judge is not able to hear arguments because they are not the judge in the case. What this means is their sole purpose is to grant or deny the sale and if you come in with proof of ANY modification talks they will DENY DENY DENY! Other judges from different counties who are the judges on the case are doing the same. So when you get that modification package in the mail keep it close to your file. Fill it out and be prepared to send it in right before the sale. Hold on to those one pagers that say you may be eligible for a modification. All of these documents are PROOF that a modification is viable under the HAMP Program.
Another important strategy to note is when on several occasions you receive these one pagers that state you may be eligible for a loan modification and then receive something to the effect that says the owner of your loan does not offer modifications. These are great documents to hold on to and present to the court at the right time when you argue the bank is playing games with you. It frustrates the judge and causes them to get proactive.
For attorney’s in the trenches who receive cases late in the game where final judgement has been issued and a sale date is on the rise, the accurate tactic seems to be what has been described above. Get these modification papers from the client, go to the hearing with papers in hand and explain to the judge your client is in modification talks. Once the sale is cancelled, attorneys file their Motion to Vacate Summary Judgement and set it for special hearing to show that material issues exist and get the judgement vacated then. It the sale goes through anyway remember you have 10 days so have that Motion to Vacate Final Summary Judgement and Set Aside the Sale/Certificate of Title ready and file it. Attorneys have waited until opposing counsel sets it for hearing as this gives client’s more time in the property. Always remember, be prepared…be prepared…be prepared!