Another win for Livinglies.me team combines Probate and Foreclosures issues to stop Sale

EMERGENCY HEARING REQUEST Case #2013-CA-012542-O

This order based upon an emergency motion prepared by Richard Kalinoski esq. with assistance from Anthony Varrone J.D., highlights the creative and unique benefits of our Foreclosure Litigation experience.

The sale of clients home was scheduled to be foreclosed upon in Florida on June 4^th of this year. In the case before the court there were issues related to an attempt to foreclose on a property involved in probate. At issue was the plaintiff foreclosing wrongfully and obtaining a foreclosure judgement against a deceased party that was not lawfully before the court.

We identified the “foreclosure” issues coupled with the “probate” issues and decided upon the best course of action. Plaintiff substituted party plaintiff throughout the case to allegedly complete its chain of title to foreclose, while disregarding the fact that you cannot sue a non party or secure a post-mortem judgment. 

Plaintiff was mandated to file a substitution of the deceased person with the estate and/or authorized representative of the deceased in order to continue foreclosing on the homestead property. Additionally, even though the husband inherited the property he never executed the original promissory note. As such, we filed an emergency motion to vacate the final judgment and clerk sale combining foreclosure and probate issues. Getting a judgment vacated and sale canceled from a 2013 case is pretty significant. There are several ways to skin a cat.

The significance of getting a judgment vacated and a sale canceled from a 2013 case cannot be overstated. The emergency order to vacate the judgment and cancel the sale was signed by the judge just in time, avoiding another wrongful foreclosure. Such victories are only possible through careful research and skillfully crafted motions.

Protect Your Home with Strategic Foreclosure Defense

Navigating the complex legal landscape of foreclosure can be overwhelming, especially when compounded with probate issues. However, with a strategic approach, it’s possible to protect your home and stop foreclosure proceedings. Our law firm recently demonstrated this with a successful defense that combined both foreclosure and probate legal strategies.

Understanding the Challenge

In our case, the plaintiff repeatedly substituted parties throughout the foreclosure process, attempting to complete its chain of title to foreclose. This tactic disregarded a crucial legal principle: you cannot sue a non-party or secure a post-mortem judgment. The plaintiff was mandated to substitute the deceased person with the estate or authorized representative to lawfully continue foreclosing on the homestead property.

Strategic Defense Actions

1. Emergency Motion to Vacate: We filed an emergency motion to vacate the final judgment and the clerk’s sale, arguing that the foreclosure and probate issues were improperly handled. This was especially critical since the husband, who inherited the property, never executed the original promissory note.
2. Combining Legal Expertise: By addressing both foreclosure and probate issues in a single motion, we effectively challenged the legality of the foreclosure proceedings. This approach was instrumental in getting the judgment vacated and the sale canceled, even from a case dating back to 2013.

The Outcome

Successfully vacating a judgment and canceling a sale from a long-standing case is a significant achievement. This case highlights that with expert legal representation, there are multiple avenues to defend against foreclosure and protect your property.

More about Richard and Anthony:

as a practicing attorney, Richard Kalinoski has reviewed over (400,000) foreclosure cases for clients and provided detailed forensic analysis based on the foreclosure suit filed against the homeowner

by the bank and servicer of the loan. His combined experience in foreclosure defense litigation and a working knowledge of the mortgage industry stems from investigating foreclosure fraud, chain of title, issues related to the securitization of residential mortgage loans, and formulating litigation discovery and strategies to the trending issues. Rich’s service to clients as record counsel resulted in successful litigation and substantive legal settlements against major banking institutions including Bank of America, Countrywide Bank, FSB, BAC Home Loans Servicing, LP and SunTrust.

Anthony Varone passed the Florida bar in 2012 and began his extensive legal career initially with Bank of America, NA. At Bank of America, he served as an Assistant Vice President (AVP) in Foreclosure Litigation and directly reported to Brian Moynihan (CEO).

Anthony supervised foreclosure associates who managed foreclosure cases for Bank of America. During his time at the Bank, Anthony was responsible for training the bank’s trial witnesses, litigation associates, and gained substantial knowledge of foreclosures, “servicing” and overall business practices of Bank of America. Now, on the side of Homeowners, Anthony is key to our ability to consult on civil litigation matters at the state and federal level nationally. He regularly prepares work materials for complex motions for summary judgment, discovery, and appellate briefs requiring extensive research, writing, and analysis in both state and federal court.

Need help in assessing your case? Does your attorney need our help? Use our services to help guide you through the process early enough to avoid mistakes that can cost you your home in an illegal foreclosure action. Call our office today at 844.583.5339 to inquire if we can help. You can also submit a case statement here and get a complimentary recommendation as to your best course of action.

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested through Quiet Title Actions. (No Guarantee). Yes you DO need a lawyer.

Tags: foreclosure defense, foreclosure offense
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