Shuster & Saben reaches confidential settlement in Foreclosure Trespass case.

Nearly four years ago a Melbourne, Florida resident in foreclosure left town for the weekend.  Although her home was in foreclosure she continued to live there and run her home based business from the property.  When she arrived home after the weekend away, the lock on her front door had been changed.  A field service agent sent by her loan servicer had broke in the back door, changed the lock on her front door, and left his business card.  When she found her front door locked she went around to the back of the house where she found her broken in back door left wide open.  When she went inside she found that many of her possessions were gone.

The homeowner called the police and a police report was filed.  The police did not arrest anyone and told her that because she was in foreclosure this was a “civil” matter.  Our client did not know if the field service agent took her belongings or merely enabled some other person to take her stuff by leaving the back door unlocked.

The home owner took pictures of her home after the break-in to show that the property was in good repair and could not have been mistaken for an abandoned property.  She asked several different lawyers in the Space Coast to take her case.  Every attorney she spoke to told her the same thing:  that her damages (about $6,000.00 of lost property) were to small and she had no proof that the field service agent left the back door open or took her property.   One lawyer told her “Perhaps the field service agent broke into the property, changed the locks, and locked all the doors and then a thief broke in and left the back door open.”

Florida Law Weekly Supplement Publishes Firm Foreclosure Win

The Florida Law Weekly supplement has published an order granting a motion to dismiss obtained for a Saint Lucie County foreclosure defense client. The Florida Law Weekly Supplement publishes legally significant rulings of Florida’s county and circuit courts. The publication is available to Florida Lawyers on a subscription basis. This was the fourth published foreclosure opinion obtained by the firm and the third published foreclosure opinion for firm attorney Richard Shuster. Mr. Shuster has over twenty published opinions in a wide range of civil litigation matters.

In this case the firm filed a motion to dismiss Citibank’s foreclosure complaint for failure to comply with Florida Rule of Civil Procedure 1.110(b) which requires foreclosure complaints to be verified. Shuster asserted that the Citibank’s verification of the complaint on a separate document was improper and that verification must be made on the complaint itself. The rationale for this argument is that if a bank can verify a complaint on a separate piece of paper, such papers can be robosigned in advance and then just stapled to complaints as needed. If the person verifying the complaint signs the complaint itself, the Court knows that at a minimum the person verifying the complaint had possession of the complaint at the time they signed it.

Judge James Midelis, agreed with the firm’s arguments and granted the motion to dismiss the foreclosure case. The Court also ordered Citiabank to pay the homeowner’s attorneys fees. For the hearing on this case firm attorney Richard Shuster traveled from the firm’s Melbourne office to St. Lucie, Florida where the hearing was held. To download a copy of the order in Adobe Acrobat (pdf) format please click the link below. Homeowners who have questions about whether the foreclosure complaint against their home was properly verified may E-mail the firm at foreclosuredefenselaw@gmail.com.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm of seven attorneys with offices in Miami, Fort Lauderdale, and Melbourne Florida. The firm passionately defends foreclosure cases in those parts of the state that are within two hours of the firm's three offices. The firm also sues banks and loan servicers that violations of the Fair Debt Collection Practices Act, Truth In Lending Act and other consumer protection laws. Our goal is to deliver superior representation at a cost that is affordable, predictable, and an excellent value. Homeowners in foreclosure are welcome call or e-mail to obtain a free, no-obligation consultation with a firm attorney.

Pre Foreclosure Mediation Settlement Saves Client over $100,000.00

A Shuster & Saben client’s investment of $1,600.00 in legal fees, will result in over $100,000.00 of savings from a pre-foreclosure mediation agreement negotiated by firm attorney Richard Shuster. The client came to the firm’s Melbourne, Florida office after their prior loan servicer, Chase, denied permanent loan modification of their mortgage. Chase had placed the client in a trial modification that reduced their monthly payment from over $3,000.00 to approximately $1,648.00. After the client made their monthly trial payments Chase refused to convert the loan from a HAMP trial modification to a permanent modification.

After meeting with the couple, attorney Shuster recommended submission of a qualified written request to the loan servicer to investigate whether Chase had a valid reason for denying permanent loan modification. The firm then submitted a Qualified Written Request (QWR) to Chase for a flat, one-time fee of $250.00. Chase’s response to Qualified Written Request revealed that the loan was owned by the Federal National Mortgage Association (FNMA or Fannie Mae) and that Chase alleged that the permanent modification was denied because their file was incomplete. The clients asserted that they submitted all of the requested documents. Some consumer advocates refer to incomplete file denials as the “dog ate my homework” excuse for not making permanent modifications.

After Chase denied permanent modification the client creased making further mortgage payments. The client, a couple nearing retirement age, realized that they could not wipe out their retirement savings to save a home in which they were significantly upside down and had no equity whatsoever.

A few months later, the loan owner, FNMA, transferred servicing of the loan from Chase to Lender Business Process Services (LBPS). When the client advised Shuster & Saben of the change of servicers the firm submitted an updated HAMP application and updated financial disclosures to LBPS. Thereafter LBPS requested pre-foreclosure mediation.

Firm attorney Richard Shuster welcomed the chance to mediate the case before any foreclosure action was filed against the client. Shuster explained that LBPS was proactive and responsible by saving FNMA (the loan owner) the expense of paying a filing fees and attorneys’ fees to file a foreclosure action against the homeowner. Lenders often ask for as much as $4,000.00 to be added to homeowners’ loan balances to pay for such expenses. Since our firm did not have to defend a lawsuit, the homeowners’ legal expenses were also much smaller.

The client hired Shuster & Saben to represent them at mediation under a written agreement that called for a fee of $350.00 together with a success bonus form $500.00 to $1,500.00 depending on the nature of the loan modification obtained. ($500.00 for a small loan modification up to a $1,500 for a loan modification with both interest and principal reduction). The result obtained, a loan modification that will reduce the client’s interest rate to 2% for the next 5 years and to 5% thereafter, qualified the firm for a $1,000 success bonus. The total cost to the client was $1,600 ($250 for QRW, $350 Mediation, $1,000 success bonus). The client’s new mortgage payment of $1,561.78 is a huge savings from their original payment of over $3,000.00 and is less than their prior trial modification payments. At the mediation, attorney Shuster insisted that conversion of the new trial modification to permanent modification be guaranteed in writing and would happen automatically so long as all payments were made. Under the loan modification obtained by Shuster & Saben, the client will save over $85,000.00 during the next five years and over $100,000 over the life of the loan. Shuster’s biggest bonus was two hugs, from the couple whose home was saved by this settlement agreement.

To review the redacted mediation agreement and redacted confirmation letter from LBPS please click the links below.

Mediation Agreement

LBPS Confirmation of HAMP Modification

Foreclosure lawyers at Shuster & Saben obtain dismissal of HSBC’s Foreclosure Action.

Things did not go very well for HSBC or their counsel, Elizabeth R. Wellborn, P.A., when a Melbourne, Florida homeowner retained the law firm of Shuster & Saben, LLC to defend the foreclosure action filed against his Brevard County, Florida home. Within 48 hours of the firm being retained firm attorney Richard Shuster served nearly twenty pages of discovery requests, including requests for admission, requests for production and interrogatories (written questions to be answered under oath) about the factual basis of the lawsuit served against the homeowner and the securitization of the mortgage into the Ace Securities Corp Home Equity Loan Trust. When HSBC’s counsel was unable to answer the discovery within thirty days they filed a motion for extension of time but did set their motion for hearing. To prevent the motion for extension of time from sitting in limbo, our firm submitted an unopposed order grating the motion and ordering HSBC to respond to the discovery within thirty days.

Thirty days after the Court signed the order, our firm had little in the way of discovery as rather than answer the questions and provide the requested documents, HSBC’s attorneys objected to almost all of the discovery requests Shuster & Saben made on behalf of the homeowner. Firm attorney, Richard Shuster then filed a twenty-eight page Motion to Show Cause and to Compel Better Response to Request to Produce that set forth each of the discovery requests, HSBC’s objection to each request, an argument as to why the Court should overrule the objection and a check off blank for the judge or overrule or sustain each objection. After a lengthy hearing the Court overruled many of HSBC’s objections and commanded HSBC and its attorney, Ira Silverstein, to provided better responses within thirty days.

When, HSBC and its counsel failed to comply with the Court’s second order, foreclosure defense lawyer, Richard Shuster filed a Second Motion to Show Cause which detailed the bank’s violations of the Court’s last two discovery orders and requested dismissal of the entire case.

On May 3, 2011, a hearing was held at the Brevard County Courthouse. Firm attorney Richard Shuster appeared at the hearing in person and a staff attorney at bank’s law firm appeared by phone. The Court asked the bank’s attorney if HSBC was “thumbing its nose” at the Court’s orders. The Court did not give the bank a third chance to violate another Court order and dismissed the bank’s foreclosure action. The Court also granted sanctions against the bank. Now that the case against our client has been dismissed his modest legal expenses will stop. Once sanctions are recovered we will hopefully be able to reimburse our client a substantial portion for his legal expenses from the sanction award.

To review a redacted copy of the order dismissing HSBC’s case please click the link below.

Redacted Order

About Shuster & Saben: The foreclosure defense lawyers at Shuster & Saben aspire to vigorously and aggressively defend every foreclosure case. We have offices in Miami, Fort Lauderdale, and Melbourne so that we can appear in Court in person rather than by phone when our client’s home is on the line. If your case is in a part of the state where we do not appear in person for Court we can refer you to a likeminded attorney or co-counsel with a carefully selected local counsel.

Shuster & Saben, LLC, announces Written Limited Money Back Guarantee on Foreclosure Defense Cases

For Immediate Release:

Shuster & Saben announces its new written limited money back guarantee for foreclosure defense cases.

Shuster & Saben is a law firm of five attorneys with offices in Miami and Plantation / Ft. Lauderdale, Florida. The firm defends homeowners in foreclosure cases for a flat monthly fee of $495.00 per month on loans under $500,000.00.

A complete copy of the written limited guarantee is available online at:

http://thetruthaboutloanmodification.wordpress.com/files/2009/07/foreclosure-limited-guarantee-2009b.pdf

Frequently Asked Questions About the Guarantee:

Q: Does the program guarantee legal results?
A: No. The results of litigation are not within the complete control of legal counsel and therefore no attorney can guarantee legal results.

Q: What is guaranteed?
A: Clients in the program are guaranteed a 100% refund if their home is lost to writ of possession (following court ordered judicial sale) of their home with six (6) months of the filing of suit, a 75% rebate if the home is lost to foreclosure within nine (9) months and a 66% refund if the home is lost to foreclosure between 9 month to one year from the filing of suit.

Q: What are the eligibility requirements for the guarantee?
A: To be eligible the client must (a) retain the firm within twenty (20) days of being served with the foreclosure complaint, (b) sign up for billing be credit or debit card, (c) maintain their credit or debit card account such that their monthly bills are paid in a timely fashion, (d) assist their counsel by providing assistance with discovery and attending any depositions or medication set in their case.

Q: What is the purpose of the guarantee?
A: The purpose of this limited money back guarantee is to enhance the client’s financial security by eliminating or substantially decreasing the cost of the firm’s services in the infrequent cases where the legal work performed by the firm does not produce the intended outcome set forth below. A further purpose of this guarantee is to limit or partially alleviate client financial hardship.

Q: If it has been more than twenty (20) days since a homeowner was served but a default has not been issued can an exception be made with respect to eligibility requirements?
A: If a client retains the firm more than 20 days after being served, but before a motion for default is filed and before a motion for summary judgment is filed, the firm will evaluate the case for inclusion in the program on a case by case basis.

For more information about Shuster & Saben, LLC
please see our website.

What the bank's lawyer does not want you to know.

What the bank's lawyer does not want you to know:

As insurance and foreclosure litigators who are in Court just about every day to keep the roof over our clients heads and prevent our clients homes from being sold out from under them, I wanted to share the view from the front lines from our battles with the banks in courtrooms in Miami, Ft. Lauderdale, Naples, Orlando, and across the great state of Florida. The banks and lawyers they hire would like the homeowners to believe that bank’s case is easy. Many of our clients have asked:

Q: If I borrowed money and I have not made all of the payments … what is there for you to do?

A: We make the bank prove its case. We search for legal violations by the mortgage broker, original lender, appraiser, loan servicer, and law firm representing the bank. We make the party bringing the lawsuit (which is often a trustee for various institutions who purchased securities representing claims on a pool of securitized mortgages) prove that they actually own the mortgage and note, have legal standing to file lawsuit, and have the evidence to prove the loan was properly transferred between each of the entities that owned the mortgage at various times. We assert all affirmative defenses and counterclaims that we know of and conduct discovery to support any claims our client may have against the bank or any other entity involved in the lending process.

In short there is plenty of things for a lawyer to do when defending a homeowner in foreclosure. Some homeowners decide to file a simple answer denying the allegations in the lenders complaint. Filing a simple answer will avoid a default but foreclosure defense litigation is much, much more then filing an answer. Sadly some “foreclosure defense” lawyers do little more filing a simple answer with lawyers bar number on it.

Twenty years ago it was very easy for the banks lawyers. Twenty years ago all the banks lawyer had to do was fill out forms. In days of old a homeowner had to put 20% down to purchase a home. If a home owner put 20% on a $200,000 house they would have to put $40,000.00 of their own money down at the time of the sale. Over the next few years the house might appreciate to $215,000 and the homeowner might pay off $5,000 to $10,000 of the debt. As such three to four years after buying the home the homeowner would have $60,000 to $65,000.00 in equity. Let us consider what would happen if this homeowner lost their job or was hospitalized and missed four mortgage payments. If the bank brought a foreclosure action, the homeowner with substantial equity would do one of the following:

(1) Borrow money from a family member, credit cards, or a loan shark to pay the four missed payments, interest, late fees, attorney’s fees & costs, and obtain a dismissal by bringing the account current.

(2) Sell the house at a significant profit (around $215,000) and use the sales proceeds to payoff the full loan balance.

(3) Refinance the house, and payoff the original mortgage with the loan proceeds.

Whether the homeowner brought the account current, sold the house, or refinanced the bank got paid in full. After the bank and the bank’s lawyer received their principal, interest, late fees, attorney’s fees and costs, the case was dismissed. The bank’s lawyer only needed to fill out the forms and every homeowner with equity would capitulate and pay whatever the bank says was due.

Since the law firms representing the banks mostly just filled out forms at many of these firms paralegals were hired to fill out most of the forms. The lawyers at many of these firms did not have to litigate very often and thus while they were very good at filling out forms many of them rarely got a chance to develop litigation skills in evidence and civil procedure.

Today most homeowners facing foreclosure never hire a lawyer. CNN did a story about what happens to Ft. Myers homeowners who go to court without a lawyer. Here is a link to a video segment about this on CNN.

http://www.cnn.com/2009/US/02/23/rocket.docket.foreclosures/#cnnSTCVideo


In Ft Myers (Lee County) there is a judge who will hear 300 unrepresented foreclosure cases in an afternoon. The hearings last as little as 45 seconds. In these cases, since the homeowner has not filed the proper written legal defenses, the judge would merely ask:

Q: Are you current on the mortgage?
A: NO …and
Q: Are you living in the house
A: Yes

The judge would then grant summary judgment for the bank and ordering a sale in sixty days. For a homeowner going to Court without a lawyer is like bringing a knife to a gunfight. Most unrepresented homeowners get slaughtered.

When the bank’s lawyers have to battle real litigators the battle is very, very different. Many times the bank has lost the original note that is usually a prerequisite to foreclose. In other cases the mortgage has been transferred from a mortgage broker to a large bank who sold the mortgage to Fannie Mae or Freddie Mac, which in turn bundled and sold the loans on Wall Street (often to Bear Sterns) where they loans were securitized. The trustee for the pool of securitized mortgages often lacks documentation that each of the prior holders of the note and mortgage complied with all necessary formalities when transferring the note. If the bank bringing the foreclosure action needs evidence or documents from the prior owners of the note many of these companies have closed, been taken over by the government, or have merged with other banks. It is often very difficult or in some cases impossible for the banks to prove their case.

The bank’s lawyers are often overwhelmed. In Collier, Lee and Dade counties there have been times when over three thousand cases were filed in a single month. When bank lawyers have more work than they can handle they are often inclined to work on the easier cases first. For the banks’ lawyers the easiest cases are against homeowners who just give up. Unrepresented homeowners almost always loose, usually lose quickly, and may lose more then once. For many homeowners the first time they lost was when the failed to shop for the best loan. Many homeowners with good credit who could have qualified for a prime mortgage were put in higher rate interest loans with variable rates that just kept adjusting upwards after the teaser rate was over. The second time these homeowners lose is when they lose their home in foreclosure. If the bank gets a judgment for the full amount of the loan and later sells the home for less the homeowner may end up losing a third time. The bank may seek a deficiency judgment for the difference between the amount of the note and the amount the bank received for the home. Years later the bank may sell this judgment to a bill collector, who will attempt to collect from the former homeowner by garnishing their bank accounts or garnishing their wages. This third and final loss will add insult to injury and cause further damage to the homeowner’s credit.

If the bank is faced with an aggressive defense from an experienced litigator they often face a real risk of losing the case entirely or spending years in an expensive fight where they could win some of the issues and lose others. Banks are corporations that exist to make profits for their shareholders. Banks operate out of self-interest. Banks modify mortgages when making interest rate concessions with increase the likelihood that a borrow continues to pay, or in order to convince the borrower to restart making payments. When a mortgage file gets transferred from the loss mitigation department to the legal department the concessions banks will make when they are at risk of losing are much, much greater. We have had clients that begged for loan modifications and have had clients that sent the bank full mortgage payments that were post due only to see the bank return the payments and pursue foreclosure. After the bank loses a summary judgment the calls from the banks lawyers often sound something like this: “What will it take to make this go away?” These homeowners in exchange for a written agreement to “Re-establish the note” may see the amount of their loan cut by 40% and their rates lowered below 5%.

In the trenches we have found that banks are overwhelmed, unprepared, and often unable to prove their case. In their rush to close loans many banks cut corners and did not comply with all applicable rules. Many homeowners have legitimate claims against the banks that they will never discover on their own. In the trenches we are finding that with proper representation homeowners stay in their homes longer (in some cases indefinitely) and can work out settlements that are rarely if ever offered to unrepresented homeowners.

This information is a public service of Shuster & Saben, LLC. For more information about hiring Shuster & Saben to defend your foreclosure case our website www.attorneyforeclosuredefense.com

Foreclosure Rescue Scams:  How to tell a Helping Hand from a Hand Grenade.

The filing of a foreclosure action or notice of lis pendis is a matter of public record.  As such if the bank files a lawsuit against you to take back your home a large number of people are going to know about it.  Many of these people are con artists who prey upon unsophisticated consumers in a time when the homeowner is stressed out and vulnerable.  In times of old the most common scam was an attempt to steal the homeowner’s equity.  The foreclosure rescue consultant / con artist usually would trick the homeowner into quit claiming the deed to the consultant, a third-party straw buyer, or a shell corporation which would pay off the mortgage and pay little if anything to the seller at the closing.  This rescue consultant would justify this action by telling the homeowner ‘we need to get the house out of your name.’  The new owner of the home would then lease it back to the former homeowner.  Many times the homeowner would not even realize that all of the legal papers he or she was signing were transferring ownership of the home.  The new owner would then refinance the property or take a second mortgage to pocket the difference between the amount paid by the “rescuer” and the value of the home.  At this point the “rescuer / con artist” would stop making payments on the new mortgage(s) while continuing to collect rent from the prior owner.  The former owner realizes he has been duped when he is served with a foreclosure action as a tenant in his own home.  By this time the amount of the mortgages that encumber the property may be double the amount the original owner owned on the property. 

 

Florida has passed a NEW foreclosure rescue scam prevention law which I have reproduced at the end of this post. This statute PROHIBITS foreclosure consultants from charging any fee prior to the completion of foreclosure consulting services.  Attorneys are exempt from this statute.  This means that if a homeowner engages the services of a loan modification company or other foreclosure consultant the homeowner should not pay any fee until the service is completed. 

 

We have had clients come to us who hurt badly when they failed to show around for a home mortgage and were put in high interest subprime loans when their credit rating would have qualified them for a 30 year fixed prime loan at a much lower interest rate.  These same clients upon being served with foreclosure paid $1,500 to $2,500 to non-lawyers to assist them with their foreclosure case.  The non-lawyer often did absolutely nothing or wrote only a single letter to the lender or lender’s attorney.  In one case the consultant hand wrote a “pro se” (self-represented) answer for the client to sign.  One of the companies offering these foreclosure services was run by a disbarred lawyer.  Hiring a non-lawyer to represent you in a Court proceeding, when the non-lawyer cannot appear in Court, is about as smart as hiring a car mechanic to perform heart surgery.  What is truly said is that for the price some of our clients paid non-lawyers they could have obtained competent representation from one of several law firms.  The non-lawyers “services” was no help but rather a hand grenade.  Thankfully we were retained early enough to repair the damage.  This far the disbarred lawyer has refused to return our client’s money.  When we sue this guy and his company we will post the suit on this blog. 

 

OK – for those that are interested here is the statute:

501.1377  Violations involving homeowners during the course of residential foreclosure proceedings.--

(1)  LEGISLATIVE FINDINGS AND INTENT.--The Legislature finds that homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their homes due to nonpayment of taxes may be vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue consultants or equity purchasers. The intent of this section is to provide a homeowner with information necessary to make an informed decision regarding the sale or transfer of his or her home to an equity purchaser. It is the further intent of this section to require that foreclosure-related rescue services agreements be expressed in writing in order to safeguard homeowners against deceit and financial hardship; to ensure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure or default; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms; to provide a cooling-off period for homeowners who enter into contracts for services related to saving their homes from foreclosure or preserving their rights to possession of their homes; to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers; and to preserve and protect home equity for the homeowners of this state.

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Equity purchaser" means any person who acquires a legal, equitable, or beneficial ownership interest in any residential real property as a result of a foreclosure-rescue transaction. The term does not apply to a person who acquires the legal, equitable, or beneficial interest in such property:

1.  By a certificate of title from a foreclosure sale conducted under chapter 45;

2.  At a sale of property authorized by statute;

3.  By order or judgment of any court;

4.  From a spouse, parent, grandparent, child, grandchild, or sibling of the person or the person's spouse; or

5.  As a deed in lieu of foreclosure, a workout agreement, a bankruptcy plan, or any other agreement between a foreclosing lender and a homeowner.

(b)  "Foreclosure-rescue consultant" means a person who directly or indirectly makes a solicitation, representation, or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services. The term does not apply to:

1.  A person excluded under s. 501.212.

2.  A person acting under the express authority or written approval of the United States Department of Housing and Urban Development or other department or agency of the United States or this state to provide foreclosure-related rescue services.

3.  A charitable, not-for-profit agency or organization, as determined by the United States Internal Revenue Service under s. 501(c)(3) of the Internal Revenue Code, which offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions.

4.  A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction.

5.  A financial institution as defined in s. 655.005 and any parent or subsidiary of the financial institution or of the parent or subsidiary.

6.  A licensed mortgage broker, mortgage lender, or correspondent mortgage lender that provides mortgage counseling or advice regarding residential real property in foreclosure, which counseling or advice is within the scope of services set forth in chapter 494 and is provided without payment of money or other consideration other than a mortgage brokerage fee as defined in s. 494.001.

(c)  "Foreclosure-related rescue services" means any good or service related to, or promising assistance in connection with:

1.  Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property; or

2.  Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.

(d)  "Foreclosure-rescue transaction" means a transaction:

1.  By which residential real property in foreclosure is conveyed to an equity purchaser and the homeowner maintains a legal or equitable interest in the residential real property conveyed, including, without limitation, a lease option interest, an option to acquire the property, an interest as beneficiary or trustee to a land trust, or other interest in the property conveyed; and

2.  That is designed or intended by the parties to stop, avoid, or delay foreclosure proceedings against a homeowner's residential real property.

(e)  "Homeowner" means any record title owner of residential real property that is the subject of foreclosure proceedings.

(f)  "Residential real property" means real property consisting of one-family to four-family dwelling units, one of which is occupied by the owner as his or her principal place of residence.

(g)  "Residential real property in foreclosure" means residential real property against which there is an outstanding notice of the pendency of foreclosure proceedings recorded pursuant to s. 48.23.

(3)  PROHIBITED ACTS.--In the course of offering or providing foreclosure-related rescue services, a foreclosure-rescue consultant may not:

(a)  Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services; or

(b)  Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services.

(4)  FORECLOSURE-RELATED RESCUE SERVICES; WRITTEN AGREEMENT.--

(a)  The written agreement for foreclosure-related rescue services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant must give the homeowner a copy of the agreement to review not less than 1 business day before the homeowner is to sign the agreement.

(b)  The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within 3 business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant must be returned to the homeowner within 10 business days after receipt of the notice of cancellation.

(c)  An agreement for foreclosure-related rescue services must contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

HOMEOWNER'S RIGHT OF CANCELLATION

 

YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS AGREEMENT IS SIGNED BY YOU.

THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.

TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO  (NAME)  AT  (ADDRESS)  NO LATER THAN MIDNIGHT OF  (DATE) .

IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.

(d)  The inclusion of the statement does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement, provided all other requirements of this subsection are met.

(e)  The foreclosure-rescue consultant must give the homeowner a copy of the signed agreement within 3 hours after the homeowner signs the agreement.

(5)  FORECLOSURE-RESCUE TRANSACTIONS; WRITTEN AGREEMENT.--

(a)1.  A foreclosure-rescue transaction must include a written agreement prepared in at least 12-point uppercase type that is completed, signed, and dated by the homeowner and the equity purchaser before executing any instrument from the homeowner to the equity purchaser quitclaiming, assigning, transferring, conveying, or encumbering an interest in the residential real property in foreclosure. The equity purchaser must give the homeowner a copy of the completed agreement within 3 hours after the homeowner signs the agreement. The agreement must contain the entire understanding of the parties and must include:

a.  The name, business address, and telephone number of the equity purchaser.

b.  The street address and full legal description of the property.

c.  Clear and conspicuous disclosure of any financial or legal obligations of the homeowner that will be assumed by the equity purchaser.

d.  The total consideration to be paid by the equity purchaser in connection with or incident to the acquisition of the property by the equity purchaser.

e.  The terms of payment or other consideration, including, but not limited to, any services that the equity purchaser represents will be performed for the homeowner before or after the sale.

f.  The date and time when possession of the property is to be transferred to the equity purchaser.

2.  A foreclosure-rescue transaction agreement must contain, above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

I UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING MY HOME TO THE OTHER UNDERSIGNED PARTY.

3.  A foreclosure-rescue transaction agreement must state the specifications of any option or right to repurchase the residential real property in foreclosure, including the specific amounts of any escrow payments or deposit, down payment, purchase price, closing costs, commissions, or other fees or costs.

4.  A foreclosure-rescue transaction agreement must comply with all applicable provisions of 15 U.S.C. ss. 1600 et seq. and related regulations.

(b)  The homeowner may cancel the foreclosure-rescue transaction agreement without penalty if the homeowner notifies the equity purchaser of such cancellation no later than 5 p.m. on the 3rd business day after signing the written agreement. Any moneys paid by the equity purchaser to the homeowner or by the homeowner to the equity purchaser must be returned at cancellation. The right to cancel does not limit or otherwise affect the homeowner's right to cancel the transaction under any other law. The right to cancel may not be waived by the homeowner or limited in any way by the equity purchaser. The equity purchaser must give the homeowner, at the time the written agreement is signed, a notice of the homeowner's right to cancel the foreclosure-rescue transaction as set forth in this subsection. The notice, which must be set forth on a separate cover sheet to the written agreement that contains no other written or pictorial material, must be in at least 12-point uppercase type, double-spaced, and read as follows:

NOTICE TO THE HOMEOWNER/SELLER

 

PLEASE READ THIS FORM COMPLETELY AND CAREFULLY. IT CONTAINS VALUABLE INFORMATION REGARDING CANCELLATION RIGHTS.

BY THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME. YOU MAY CANCEL THIS TRANSACTION AT ANY TIME BEFORE 5:00 P.M. OF THE THIRD BUSINESS DAY FOLLOWING RECEIPT OF THIS NOTICE.

THIS CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER BY YOU OR BY THE PURCHASER.

ANY MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST BE RETURNED TO THE PURCHASER AT CANCELLATION. ANY MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO YOU AT CANCELLATION.

TO CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER BY 5:00 P.M. ON  (DATE)  AT  (ADDRESS) . IT IS BEST TO MAIL IT BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, AND TO KEEP A PHOTOCOPY OF THE SIGNED FORM AND YOUR POST OFFICE RECEIPT.

I (we) hereby cancel this transaction.

 Seller's Signature 

 

 Printed Name of Seller 

 

 Seller's Signature 

 

 Printed Name of Seller 

 

 Date 

 

(c)  In any foreclosure-rescue transaction in which the homeowner is provided the right to repurchase the residential real property, the homeowner has a 30-day right to cure any default of the terms of the contract with the equity purchaser, and this right to cure may be exercised on up to three separate occasions. The homeowner's right to cure must be included in any written agreement required by this subsection.

(d)  In any foreclosure-rescue transaction, before or at the time of conveyance, the equity purchaser must fully assume or discharge any lien in foreclosure as well as any prior liens that will not be extinguished by the foreclosure.

(e)  If the homeowner has the right to repurchase the residential real property, the equity purchaser must verify and be able to demonstrate that the homeowner has or will have a reasonable ability to make the required payments to exercise the option to repurchase under the written agreement. For purposes of this subsection, there is a rebuttable presumption that the homeowner has a reasonable ability to make the payments required to repurchase the property if the homeowner's monthly payments for primary housing expenses and regular monthly principal and interest payments on other personal debt do not exceed 60 percent of the homeowner's monthly gross income.

(f)  If the homeowner has the right to repurchase the residential real property, the price the homeowner pays may not be unconscionable, unfair, or commercially unreasonable. A rebuttable presumption, solely between the equity purchaser and the homeowner, arises that the foreclosure-rescue transaction was unconscionable if the homeowner's repurchase price is greater than 17 percent per annum more than the total amount paid by the equity purchaser to acquire, improve, maintain, and hold the property. Unless the repurchase agreement or a memorandum of the repurchase agreement is recorded in accordance with s. 695.01, the presumption arising under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(6)  REBUTTABLE PRESUMPTION.--Any foreclosure-rescue transaction involving a lease option or other repurchase agreement creates a rebuttable presumption, solely between the equity purchaser and the homeowner, that the transaction is a loan transaction and the conveyance from the homeowner to the equity purchaser is a mortgage under s. 697.01. Unless the lease option or other repurchase agreement, or a memorandum of the lease option or other repurchase agreement, is recorded in accordance with s. 695.01, the presumption created under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(7)  VIOLATIONS.--A person who violates any provision of this section commits an unfair and deceptive trade practice as defined in part II of this chapter. Violators are subject to the penalties and remedies provided in part II of this chapter, including a monetary penalty not to exceed $15,000 per violation.