"fresh Start" Challenge by Tallahassee Attorney

Editor’s Comment: Danielle Kelley is an excellent attorney in Tallahassee. Her article for Tallahassee.com highlights the myths that have led the courts and the legislature in the wrong direction. The principal takeaway is the indifference by government to the hardship and heartache of losing a home when they did nothing wrong (except believe what a bank representative told them from a script that was designed to get the homeowner in so deep they couldn’t get out.)

There is no “fresh start” in foreclosure. The homeowners and their families have usually been wiped out by unfortunately draining their savings and retirement funds to save the house only to find out that they failed to stop the foreclosure despite assurances to the contrary from the bank. The bank representatives are telling people to stop making payments in order to be considered  for modification or any other form of relief. It’s a lie. And even where there are regulations in place making reference to being in delinquency, in many cases the only delinquency is caused by the bank who tells homeowners to stop paying their monthly mortgage payments.

While Wall Street and government attempt to mythologize the current mortgage crisis and there is a virtual blackout on foreclosure stories in mainstream media, people are suffering because of foreclosures and evictions where the loan was paid several times over but there is an insistence that the borrower not be credited with these payments. Hence the creditors get paid multiple times, the borrower gets nothing, the investors frequently receive nothing and like the old story, the dog runs away with the bone (dog=bank).

Quick foreclosure is not a solution

By Danielle Kelley, Esq.

I am in foreclosure. Although I am not proud of that, I know my foreclosure is not my fault.

After dealing with a horrible predatory loan on our home, we were able to get a new fixed-rate, conventional loan. From the date of closing, our payments kept increasing little by little until they were so high something seemed wrong. When we called Bank of America to inquire, we were told we needed a loan modification. Because we were current on our payments, we were not showing an “inability to pay,” so we were told to make a partial payment and then apply for the modification. We did this. Then we were told we would have to stop payment altogether in order to qualify. Our partial payment was returned to us.

While still trying to understand what Bank of America wants from us now, and actively negotiating for a loan modification, we are in foreclosure.

I am an attorney and represent homeowners who are also going through the same horror. Why am I telling you? Because I fear the passage in the Legislature of HB 87 and SB 1666.

If these bills were to pass, a homeowner’s ability to fully contest extremely complex claims against large banks and servicers would be compromised. The expedited foreclosure process these bills intend would make it impossible for homeowners to adequately prepare their claims and defenses in time to present them in court. Given what so many of us have been through — in my case, being told to stop payment on my mortgage to qualify for a loan modification that Bank of America has no intention of giving me — it is criminal for the Legislature to even consider narrowing our rights.

By the time homeowners are served with a foreclosure complaint, most have been through many modification attempts. They have been told to craft “hardship letters” saying they cannot pay, and told, most times, to stop payment during the modification. When the modification is declined, the homeowners will be able to resume payments only if they pay a lump sum of all back payments, penalties and fees, including attorney’s fees in some cases.

[Danielle J. Kelley is a native of Tallahassee and practices law in foreclosure defense and real estate. Contact her at danielle@dkelleylaw.com.]

The bank has built its case against the homeowner years before the homeowner ever gets a day in court. Moreover, many homeowners are told to contact the bank’s attorneys instead of getting their own.

I’ve seen people sitting in a courtroom about to lose their home, and the only attorney they are talking to is the bank’s attorney.

An expedited foreclosure process only harms a homeowner who comes to court against a bank that has been building a case for years.

I testified at the House Justice Appropriations Subcommittee against the bill, and Rep. Debbie Mayfield, R-Vero Beach, a former banker who sits on the subcommittee, appeared shocked to hear my story.

What is shocking to me is that legislators do not understand why we have the largest nationwide consumer settlement ever against the five largest banks. What happened to me is exactly why Attorney General Pam Bondi received $8.4 million for Florida out of the settlement, but homeowners are still left to defend against the fraud and abuse in their individual cases.

At the Senate Banking and Insurance Committee hearing on the bill, I was physically ill listening to legislators talk about homeowners “getting on with their lives” and fresh starts, as if I should just walk away from my home. It is not about “fresh starts,” it is about those who are continuing to live through this nightmare. It is not about cases and statistics, it is about homes. I left the hearing without testifying, since I knew my story would fall on deaf ears. I was pleased to learn that my senator, Bill Montford, stood up for us and voted against SB 1666. However, the bill passed out of the committee.

As a citizen in foreclosure and an attorney representing others in distress, I am as concerned as anyone about ending our foreclosure crisis and getting our economy back on track.

Placing the burden of the solution on the backs of the already burdened homeowners is not the answer. We should fully fund the courts, allow the courts to process the foreclosure cases as they have been doing and give homeowners their day in court.

There is no easy fix, but homeowners should not have to have their homes ripped away from them when they follow bank instructions. In the end, expedition will not equal justice; it will only serve to cause more tragedy not only to the homeowners, but to the judicial system.

Tags: Bill Montford, Danielle Kelley, HB 87, SB 1666
Posted in Corruption, Eviction, securities fraud |