Posts Tagged ‘foreclosure’

August 17, 2015
Contact: Mark Malek
Tel. 321-255-2332




Widerman Malek, PL is pleased to announce that Brett A. Hyde  has joined the firm as an Attorney. Brett is a member of the Florida bar.  He, graduated from Florida State University and received his Juris Doctorate from Barry University School of Law.

Brett practices in the areas of complex commercial litigation, foreclosure prosecution and defense, bankruptcy and family law. He joins Widerman Malek’s commitment to our community coaching little league baseball and flag football.  In addition to sports leagues, he is an assistant Scout Master for the Boy Scouts. Brett continues to support the Cocoa Police Department, in particular their SWAT team, with regard to their participation in the international SWAT competition which helps hone their skills to better protect and serve our community.  Brett’s experience, work ethic and commitment to his family and community make him yet another perfect fit to join the Widerman Malek family.

Widerman Malek, PL maintains offices in Melbourne FL, Evansville IN, and in the Washington DC area. The firm practices in intellectual property, commercial litigation, land use, real estate, corporate formation, asset protection, estate planning, government contracts and construction law. For more information about the firm, please visit.


If you’re facing foreclosure, you are NOT alone. Foreclosure filings are at an all time high. If a foreclosure lawsuit has recently been filed against you, this does NOT mean that you have to lose your home. You have more rights than you think, rights your creditors do not want you to know. If you have steady, regular income and the desire to keep your home, call us now for more information. Don’t delay – call us now. For a FREE Consultation call (321) 255-332 or (877) 868-7239


When a borrower fails to make any payment that is due pursuant to a promissory note or mortgage, they are in default. Upon the occurrence of a default, a lender will send a Notice of Default to a borrower. Some mortgages have specific requirements for the contents of a Notice of Default, but all will inform the borrower of their default and demand that the default be cured, usually within a certain period of time. If the default is cured as set forth in the Notice of Default, there is usually no further action taken. If the default is not cured, foreclosure proceedings can be instituted. In some states, depending on the terms of the note and mortgage, foreclosure proceedings can begin immediately upon default. In those situations, the Notice of Default will inform the borrower of the default, but the borrower will not be able to cure the default just by paying the missed payments. In those situations, the only way to stop the foreclosure will be to either pay the total amount owed on the mortgage, or to enter into a forbearance, reinstatement, modification, mediated settlement, or other resolution.

A foreclosure begins when the lender/mortgagee files a lawsuit against the borrower/mortgagor. The document that is filed is called a Complaint. The Complaint will set forth the facts showing the pleader is entitled to relief. In a foreclosure action, the plaintiff must allege that the defendant has failed to pay a debt that is secured by the mortgage, and that pursuant to the terms of the mortgage, they are entitled to foreclose the mortgage, have the mortgaged property sold, and have the proceeds of the sale applied to the debt that is owed.

Once a Complaint is filed, it must be served on the defendant. After service of the Complaint, a defendant has 20 days to file a response. If a response is not filed, the plaintiff can seek a default judgment against the defendant. A defendant can file an Answer to the Complaint, or they can file a Motion to Dismiss. A Motion to Dismiss tests the sufficiency of the Complaint to state a cause of action. If a Motion to Dismiss is filed, it will be ruled on before an Answer must be filed. If a Motion to Dismiss is denied, or if no Motion to Dismiss is filed, the defendant will file an Answer to the Complaint. In the Answer the defendant admits or denies the allegations of the Complaint and sets forth any affirmative defenses.

Some affirmative defenses to a foreclosure action include (1) Failure to produce the note. This defense is asserted when the foreclosing entity does not have the original promissory note. Often notes and mortgages are sold, assigned, or otherwise transferred from one entity to another. The entity that owns and holds the note and mortgage is the entity entitled to bring an action on the note and seek the foreclosure of the mortgage. In an action on a note, the original note must be surrendered. Although there is a statutory mechanism for “re-establishing” a lost note, the entity that is foreclosing must either turn in the note, or re-establish the note pursuant to statute. Without submitting or re-establishing the note, and action may be subject to dismissal. (2) Real party in interest. All legal actions must be brought by the real party in interest. That is, the actual party with the claim that has standing to bring the action. Sometimes the foreclosure will be brought by an entity that purchased a bundle of mortgages from the original lenders. For instance, the lender/mortgagee may have been ABC Mortgage Company. Then, 10 years later, a foreclosure action is filed by Wells Fargo, after Wells Fargo bought the mortgage (along with 100 others) from ABC. This is not a problem, as long as there is a document known as an Assignment whereby ABC assigned your mortgage to Wells Fargo.

Ultimately the issue will go before a judge, usually on a Motion for Summary Judgment. There are very few trials of foreclosure actions, because they are usually pretty straight forward. Unless the debtor can show that the payments were being made, or has a valid excuse for non-payment, a judgment of foreclosure will be entered. The judgment of foreclosure will set forth the amount owed on the note, will order the sale of the mortgaged property with the proceeds thereof to be applied to the debt, and will set the date of the foreclosure sale, usually a month to a month and a half after the date of the judgment.

After a judgment of foreclosure is entered by the Court, a Notice of Sale is published. In Florida, the Notice of Sale must be published by the plaintiff or plaintiff’s attorney once a week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located. The Notice of Sale contains a legal description of the property being sold, the time and place of the sale, and other information required by law. The sale usually takes place about one to two months after the judgment is entered. At the sale, the property is sold to the highest bidder, and the amount received is applied to the plaintiff’s judgment.

Foreclosured home

fotolia 22519434 xsIf you’re facing foreclosure, you are NOT alone. Foreclosure filings are at an all time high. If a foreclosure lawsuit has recently been filed against you, this does NOT mean that you have to lose your home. You have more rights than you think, rights your creditors do not want you to know. If you have steady, regular income and the desire to keep your home, call us now for more information. Don’t delay – call us now.

For a FREE Consultation call 321.255.2332 or 877.868.7239


We’ve all heard the horror stories from friends who are now unable to make their mortgage payments. Some have tried to negotiate with their lenders. Some have dealt with banks that were not willing to do much to help them out. Others had better luck with their banks. But, just like we said before when discussing foreclosures, these banks took bailout money that was taken out of yours and my paychecks. So do whatever you can and don’t feel guilty about it.

Many people feel like trying to renegotiate the loan is like reneging on their promise. So what? Do it anyway? Would you have made that promise then if you knew what you know now about Fannie Mae and Freddie Mac and the damage it would cause? The bank doesn’t want your house. They have plenty of them already. What they would really like is for you to keep it and pay for it. So you do have some leverage there.

When filing for a modification, be diligent. Document everything. Call the bank and bug them often. You will likely get excuses. You will get the run around. Don’t let that bother you. Filing for a modification and bugging the back about it can be a great way of stalling the foreclosure. I have heard cases where people have lived in their homes for two or three years without making a payment while in negotiations with the banks. These people are backed up. Use that to your advantage.

Get a good attorney who deals in foreclosures and knows what to do for you. Many times a good lawyer can get you into mediation with the bank and get something worked out. If not, at least he can stall while you stay in your home as long as you can. This is kind of like baseball. As long as you are still in your home, you are still at bat. And as long as you still have at bats, you still have a chance. A good will know what to do if the bank fails to mediate in good faith. Many times the bank will not show up or claim you did not fill out the papers and get them in on time, etc. This is where your attorney will earn his money. Many times attorneys can get the judges to sanction banks and put you in a better negotiating position.

Remember, doing nothing is the worst thing you can do. If it looks like you don’t care enough to do something to stay in your home, the judge will take it from you and give it back to the bank. You don’t really have anything to lose. The worst that can happen is you lose your home, which you will anyway if you do nothing. If you have any questions, feel free to contact us.




So you lost your job? Welcome to the club. That puts you in the same boat with most of the people we know. Through no fault of your own the economy tanked and so did the company you work for.

So now you can’t make your house payments because you couldn’t find another job? Again, welcome to the club.

So you just stopped making the payments, waiting for someone to come and kick you out? A lot of people have done the same thing. And because of the massive numbers of people and homes in foreclosure, sometimes it takes the banks and courts a long time to get to you. You might live in your house for two or three years in some cases. But one day they will get to you. Doing nothing is not the smart way to go. Hire a lawyer and see if there is anything you can do to stay in your home.

What can he possibly do? I haven’t made any payments? First, stop looking at it that way. Do you know how many banks took bail out money from the government? And do you know how much they took?

Do you know where the government gets the money to bail out banks and whoever else? They get it out of yours and my pockets. So in actuality, you did make at least some of the payments. So did I and so did your neighbors. The real crime is banks were not required to forgive one nickel of consumer debt when they took OUR money. So you have every right to fight them to stay in your home as long as you can, maybe even permanently.

The worst thing you can do is wait too late to hire your lawyer. Waiting too long can be the difference in the judge granting your lawyer’s request or saying “snooze, you lose”.

You need to defense yourself and you need to do it quickly. Asking your attorney to come in and save the day in the last few days before the house is to be auctioned off is like asking your back-up quarterback to come in and win the game in the last two minutes when you are down 35-0. Don’t make that mistake.

There are laws and procedures that must be followed in any legal action. This includes a foreclosure. If the bank made any kind of clerical error, you won’t catch it. It is not up to the judge to catch it either. The judge is supposed to be neutral. Your attorney however, is trained to catch it. But he cannot do anything if you haven’t hired him yet. So do not put off hiring an attorney. Timing could make all the difference.