Miami foreclosure defense aided by Supreme Court ruling requiring banks to prove home ownership

May 30, 2010

A reduction in the number of Florida foreclosures this year is being credited to a recent Florida Supreme Court ruling that requires banks to prove they are the rightful owners of a home before seeking a foreclosure action, the Miami Herald reported.

Hiring an experienced Miami foreclosure defense attorney can help protect your rights when dealing with a foreclosure, short-sale or loan modification in South Florida. Anyone with any experience in dealing with foreclosures in Miami or elsewhere in South Florida knows it is quite common for a bank to file a notice that the original mortgage documents have been lost. The advent of mortgage-backed securities means most mortgage notes were packaged and sold as investments.
477807_Miami_lost_note.jpg

Law firms working for banks have routinely filed "lost note" claims with default notices, regardless of whether anyone attempted to find the note, according to Miami-Dade Circuit Court Judge Jennifer Bailey.

"It was very confusing. How can you foreclose on the note if the note is lost?'' Bailey said. "The judges would be trying to track the note and they're saying they own it, but don't have it and don't know where it is."

The new rule was approved in February. It was meant to address the estimated backlog of 500,000 Florida foreclosures clogging the court system. It also permits judges to sanction plaintiffs who make false claims regarding missing notes. Hiring an experienced Miami real estate attorney can help ensure a homeowner is treated fairly.

While a bank is not required to produce the note to seek a foreclosure under the new rules, it must act in good faith with both the homeowner and the courts. Previously, such cases often sailed through the system when the homeowners did not contest the foreclosure.

Judges have even found multiple lenders filing on the same property because they didn't know who owned the note.

If you are facing foreclosure in the Miami area or are dealing with a short sale, underwater mortgage or home-loan modification in South Florida, contact Barakat, Jacobs & Associates for a confidential appointment to discuss your rights. Call (305) 350-5055.