Miami Real Estate Bankruptcy Lawyer
When you are facing bankruptcy, one of the most immediate worries that many people have is how to save their home. In Florida, however, there are multiple options that one may be able to take advantage of, especially if they consult a Miami real estate bankruptcy lawyer well versed in this type of law sooner rather than later. If this is a concern for you or a loved one, know that it is almost never too late to do something.
It may seem self-evident, but sometimes the best way to combat foreclosure is to affirmatively fight it. There are often several avenues of attack by which a foreclosure action can be challenged, and while simply wasting a court’s time is not acceptable, any defense for which grounds exist should be brought into the case. For example, it is not uncommon for cases to be filed with the wrong name listed as plaintiff – perhaps the most often seen is the previous mortgage holder – and as such, the plaintiff actually filing the suit could be said to lack the standing to bring the claim.
Another common affirmative defense often underutilized is to raise the issue of relevant documents missing. Many people do not realize that under Florida law, the relevant original mortgage and/or promissory note must be attached to the filing, or at least accessible for the court to view. Failure to do this can delay a proceeding, and if the document cannot be found, the plaintiff’s case may be deemed unenforceable. Yet because some homeowners are unaware of this, they do not contest the foreclosure.
Making Changes To Liens
If affirmative defenses are not available to you in your foreclosure action, you may still be able to seek modification of the lien or liens on your property. Most banks are willing to work with debtors if it means that they are likely to receive at least some return on their investment, given it is better than none at all. There are certain criteria that will make a loan modification more likely, including a lack of equity remaining in the home (in other words, when the mortgage is for more than the home is worth), a history of late payments, and some continuing income to show that you are able to make some payments, but the ultimate choice is up to the bank in question.
Another possibility is called lien stripping, though this is only available in Chapter 13 bankruptcies (it was formerly available in Chapter 7, but a Supreme Court ruling in 2016 put an end to the practice). This is done by ‘stripping’ or otherwise removing wholly unsecured liens on assets, which can be done if there is no equity left in the asset to collect on. Thus if, for example, your home is underwater, meaning that you owe more than it is worth on the mortgage, a creditor’s lien may be ‘stripped off’ since the creditor would be unable to collect anyway.
Don’t Delay – Call A Miami Real Estate Bankruptcy Lawyer Today
The old saying is that a man’s home is his castle, and even if someone is bankrupt, they should not have to feel that to be untrue. The Miami real estate bankruptcy lawyers at Nowack & Olson, PLLC can work with you to try and make sure that your home is protected from creditors if at all possible. Call our office today to set up a consultation, or use our online form.