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Aug. 12, 2009

Title Goes Here

Thousands of homes in South Florida are currently facing foreclosure. In many of these cases, the bank files a foreclosure action and alleges that it has lost the original promissory note signed by the homeowner. The bank requests that the Court reestablish the missing the proper paperwork and permit it to foreclose. Many of the banks’ lawyers do not conduct due diligence to determine whether the bank is truly the party that most recently owned the lost note. However, the Court system is simply overwhelmed by the number of foreclosures they process in a day or even by the hour. Florida foreclosure courts are so overburdened that the judges in many cases are not always reviewing the bank’s documents to see if they have properly prepared their case and many homeowners fail to defend their rights by hiring an attorney to contest the bank’s claims. The question we ask as a Florida foreclosure defense attorney is; did the bank ever really have the promissory note to begin with? In court, the bank can only say they lost the note, if in fact they can prove they had possession of the note in the first place.

Many of these banks (in reality, trusts owned by thousands of investors) will be unable to prove that they ever had the note and mortgage. Due to the securitization process, no one knows or kept track of who really owns the note and mortgage. Under Florida law, when a mortgage is sold to a third party it must be assigned and recorded in the public records. Significantly, many of the notes and mortgages in litigation today were not properly assigned and recorded in the public records. As part of our defense of the homeowner, we request that the bank prove that it was the last part of the chain of title (or ownership) of the note.

To recover on a promissory note, the plaintiff (the Lender in the case of foreclosure) must prove:(1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note in due course; and (4) that a certain balance is due and owing on the note.

Trial court erred when it did not proceed to take testimony before it entered default judgment (see definition below) for the plaintiff; the unsworn statement of plaintiff's (plaintiff is the lender) attorney could not support default judgment rendered."

It is also true, in mortgage foreclosures, prove up of the claim requires presentment of the "original" promissory note and general account and ledger statement. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger.

Aug. 12, 2009

Tax Credit for First-Time Homebuyers (from www.irs.gov)

First-time homebuyers should begin planning now to take advantage of a new tax credit included in the recently enacted Housing and Economic Recovery Act of 2008.

Available for a limited time only, the credit:

Applies to home purchases after April 8, 2008, and before July 1, 2009. Reduces a taxpayer’s tax bill or increases his or her refund, dollar for dollar. Is fully refundable, meaning that the credit will be paid out to eligible taxpayers, even if they owe no tax or the credit is more than the tax that they owe. However, the credit operates much like an interest-free loan, because it must be repaid over a 15-year period. So, for example, an eligible taxpayer who buys a home today and properly claims the maximum available credit of $7,500 on his or her 2008 federal income tax return must begin repaying the credit by including one-fifteenth of this amount, or $500, as an additional tax on his or her 2010 return.

Eligible taxpayers will claim the credit on new IRS Form 5405. This form, along with further instructions on claiming the first-time homebuyer credit, will be included in 2008 tax forms and instructions and be available later this year on IRS.gov, the IRS Web site.

If you bought a home recently, or are considering buying one, the following questions and answers may help you determine whether you qualify for the credit.