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Oppenheim Law has the cornerstone on real estate/foreclosure defense

Oppenheim Law sets the record straight in real estate, foreclosure and homeowner related matters. For over 25 years, Oppenheim Law has successfully defended and protected clients in South Florida representing them as their advocates. They have closed over $1.5 billion in real estate transactions ranging from representing investors in buying and selling commercial property, representing homeowners buying and selling, refinancing or modifying their loans. The firm also has developed a national reputation defending homeowners in foreclosure and in defending deficiency judgments. The firm also engages in the highest quality of sophisticated commercial litigation and serving as general counsel to real estate developers and closely held companies, coordinating all legal related matters. Watch and see Roy Oppenheim discuss how he built South Florida’s premier law firm.  Subscribe to the award winning South Florida Law Blog to stay connected to the latest in real estate law by Roy Oppenheim.

(954) 384-6114 Oppenheim Law

  

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South Florida residents served with second foreclosure nightmare years after home is taken

The following article featuring excerpts by Roy Oppenheim, Oppenheim Law was originally posted in the Palm Beach Post and written by Kimberly Miller.

By Kim Miller

121610 biz foreclosure 3.jpHundreds of South Florida residents are facing new foreclosure ramifications as banks seek to collect on the unpaid mortgage debt from homes that were lost years before.

In a month-long period beginning June 1, about 110 so-called deficiency judgments were filed against Palm Beach County homeowners by a Texas-based debt collection company called Dyck O’Neal. The same firm filed more than 300 cases in Broward County and nearly 200 in Miami-Dade County.

Foreclosure defense attorneys believe a change in Florida law that set a one-year deadline to file to collect the unpaid debt spurred the rash of lawsuits this summer. The previous deadline was five years.

Under deficiency judgment rules, banks, or companies they sell mortgage debt to, can go after the difference of what a home sold for at auction and what was still owed by the homeowner.

In many instances found by The Palm Beach Post, the lawsuits seek more than $100,000 from former homeowners _ money that can be reclaimed by garnishing wages, liens, or claiming rights to investment properties.

Although deficiency judgments have always loomed as a threat, they have been very rarely sought by lenders who were still overwhelmed by foreclosures and felt it was useless to go after homeowners who had few resources.

But the economy has improved in recent years. Lenders may see more of an opportunity to collect.

Zombies_NightoftheLivingDead

“These people have started over and thought this was behind them, but it’s like the night of the walking dead. It’s a new nightmare coming after them,” said South Florida foreclosure defense attorney Roy Oppenheim.

After seeing nearly no deficiency judgments since the housing crisis began, Oppenheim said he’s been contacted in the past two months by about 50 people served summonses by Dyck O’Neal.

“To me, these people are vultures,” said Miami resident Chris Ossman, who was served this summer with a deficiency judgment lawsuit seeking about $84,000. “I imagine they are looking for people getting back on their feet who they think they can get some money from.”

 

  

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Tricky Dick 2.0 – The art of buying and selling deficiency judgements

The 40th anniversary of Nixon's resignation, Dyck-O'Neals 25 years as a debt collector and Oppenheim Laws blog.

The 40th anniversary of Nixon’s resignation, Dyck-O’Neals 25 years as a debt collector and Oppenheim Laws blog.

As we commenorate the 40th anniversary of  President Nixon’s resignation,  it came to me, that these days we are dealing  with a new form of  ‘bait and switch.”  Here’s an “In the Trenches” point of  view  that I’d like opinions on and why it  makes sense to call this blog: “Tricky Dick 2.0.”

So as more and more real estate clients keep coming in and telling us that they are being sued by a guy named Dyck-O’Neal.

Well, “Dyck” is a  debt collector and servicer of real estate deficiencies bought from Bank of America and other institutions for mere pennies on the dollar; hence, third-party wardens taking their bounty.  The victims? Homeowners  who haven’t resolved an old foreclosure. The question that keeps coming up in my mind:  “Who is Dyck O’Neal?  It doesn’t sound like just a name. Is it a person or is it a company or is it both?  Who could sleep witthe themselves at night knowing that they only paid a few dollars for the judgments from various banks and are now making other people’s lives miserable?   Is there a real person called Dyck O’Neal?

The 40th anniversary of Nixon's resignation, Dyck-O'Neals 25 years as a debt collector and Oppenheim Laws blog.

The fine print: “Dyck-O’Neal, Inc. is a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.”

You just got served by Tricky Dick 2.0

Well, as luck would have it and because I do have a few friends who still represent the banks, I found a colleague of mine who actually once met Mr. Dyck-O’Neal.  Where did they meet? They met at the Mortgage Bankers Conference several years ago.  Typically at most conferences and industry wide trade shows, people are usually selling their wares or trying to get you to buy something from them. But at this convention there was a buzz and flurry around the Dyck O’Neal booth.  And why you may ask.  Simply because unlike the other conventioneers who were all selling, Dyck O’Neal was buying.

What was Dyck O’Neal buying?

He was offering to buy all the real estate deficiency judgments that the banks had obtained during the housing foreclosure crisis over the past several years.  And he was buying them in blocks of thousands at a time. The bankers, apparently like a beehive, were swarming his booth wanting to have him buy their bad paper from them.

Now my understanding is that Mr. O’Neal in fact is a very affable man and most people think very intelligent.

But some have questioned whether or not what he is doing is ‘good’  business or also morally bankrupt. Either way, it is what it is as I have explained in my previous blog posts and YouTube videos.

Will the real Dick please stand up?

Interestingly, the other question that people had is: does one pronounce the name ‘Dyke (as it used to be spelled according to research) as in rhyming with ‘pike’  as most pronunciation dictionaries suggest. or, as his parents apparently actually named him, ‘Dick.?’

Banks sell deficiency judgements to debt collector Dyck-O'Neal, Inc. Have you ever heard the expression, “If it  looks like a duck, walks like a duck,  and quacks like a duck, it’s probably a duck?”

The great irony here is of course that this Dyck, as most of my clients would suggest, pronounces his name in a manner that is much more fitting and appropriate for what he is actually doing.

 

 

From the trenches,

Roy Oppenheim.

 

Dyck-O'Neal, President NIxon and Roy Oppenheim talk morals and issues.

Roy Oppenheim, foreclosure and real estate defense attorney. Legal blogger and founder of the South Florida Law Blog.

Oppenheim Law Firm - 

Real estate and foreclosure defense attorney Roy Oppenheim passionately defends Florida homeowners and investors from foreclosure, arranging short-sales, loan modifications, mortgage advice, commercial litigation, and business related matters. Roy is also the original creator of the South Florida Law Blog, named the best business and technology blog by the Sun-Sentinel. Share your comments and thoughts on the Oppenheim Law digital media social networks; they’d love to hear from you. - 

  

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A Cautionary Tale to Foreclosure Bidders on the Auction Block

The majority of the proceeds from a foreclosure sale recently ended up in an unlikely set of hands.  Out of the $184,000 winning bid placed at a Miami foreclosure sale in March 2013, a surplus of $99,500 existed after the foreclosing mortgage holder’s judgment was satisfied. The debt that was paid by the sale was for a second mortgage. The question faced in this situation is who should be entitled to the remaining $99,500? There are three possibilities: the winning bidder, the first mortgage holder, or the homeowner that was foreclosed upon. 

At the trial level, the Court decided that the equitable solution would be to give the money to the high bidder with further instructions that they pay off the senior mortgage held by Wells Fargo.  This is normally what would be expected since the high bidder wants to obtain marketable title. However, the homeowner felt that the surplus should go to them and an appeal to the Third District Court of Appeal was filed.

To the surprise of many, the Third District Court of Appeal overturned the Miami-Dade Circuit Court’s ruling. The Court of Appeal held that the appropriate party to receive the $99,500 surplus is the homeowner.  The Appellate Court based its reversing decision by strictly following the black letter law of Florida. Florida Statute §45.032(2) in pertinent part states the following:

“There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.”

What the statute is saying is exactly on point with the facts of this case.  The homeowners were the “owners of record on the date of the filing of [the] lis pendens” which makes them entitled to any surplus of funds from the sale “after payment of subordinate lienholders who have timely filed a claim.”  The Statute thus places the homeowners right behind junior lien holders in the line to collect surpluses from the foreclosure sales.  The statute completely leaves out first mortgage holders and the high bidder as parties entitled to surpluses from a foreclosure sale.

So what’s the bottom Line?

At the end of the day the primary lien holder and the buyer both get screwed.  The high bidder is left with unmarketable title since there is an unsatisfied first mortgage on the property, and the first mortgage holder is also left holding the bag because the homeowners discharged the loan through bankruptcy proceedings.  The high bidder may end up getting foreclosed on by the bank holding the first mortgage while the homeowner is laughing straight to the bank.  Could legislators really have intended this outcome when §45.032(2) was enacted? Legislators may want to revisit the Statute and take into consideration the harsh implications that the current law places on bidders and first mortgage holders.

The moral of the story is that bidders at the foreclosure auction need to be careful when bidding on properties that are being sold to pay off junior lien holders.  They must be aware that, at least in the third DCA, surplus funds, after covering the junior lien, will revert back to the borrower and not into the hands of the first mortgage holder as common sense would suggest.  When surplus funds fall into the borrowers hands, it becomes a coin flip at best as to whether the primary lien holder will get paid off, but I doubt it. The whole situation presents an enormous risk for investors bidding on 2nd mortgage properties such as home owner association (HOA) liens. As always, investors should proceed with caution and hire competent counsel.

 

  

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Dyck-O’Neal, Inc., – Reviving the Homeowner Foreclosure Nightmare with Deficiency Judgment Lawsuits

Oppenheim Law helps homeowners understand their rights in the deficience judgement lawsuit cases

Dyck-O’Neal, Inc., The Revival of the Homeowner Foreclosure Nightmare with the Use of Deficiency Judgment Lawsuits

 

A Brief Recap on the New Deficiency Judgment Deadlines

As I have explained in my previous blog posts and YouTube videos, July 1st 2014 was a key date in terms of deficiency judgments.  If a bank had a foreclosure judgment entered in their favor at any time prior to June 30th, 2013 and the bank desired to file a lawsuit against the homeowner seeking a deficiency judgment, the deficiency judgment suit must be have been filed before July 1st, 2014. After July 1, 2014, under Florida Law, a deficiency judgment suit will have to be filed against the homeowner within one year after the entry of a foreclosure judgment or it can never be filed.

One of the reasons Florida legislators enacted this law is because they correctly recognized the burden and stress placed on constituents unsure of whether they were  going to be sued for a deficiency years after a foreclosure judgment had been entered. It was a drag on the economy;  plain and simple.

 Hi Dyck meet Roy

So who is Dyck again? Dyck O’Neal meet Roy Oppenheim and the Oppenheim  Law Firm

So who is Dyck-O’Neal, Inc.

Our firm has anticipated that there would be a rush by the banks to file deficiency judgment actions against homeowners as the clock ticked down to the July 1st, 2014 deadline.  In fact, in June 2014 – Dyck-O’Neal, Inc.,  filed 323 deficiency cases in Broward County alone. We  have also  been retained to defend more deficiency judgment cases than the total amount of deficiency judgment cases we defended in all of 2013.

However, it is not just the banks doing the suing this time around.  It’s also third party companies like Dyck O’Neal.   Dyck O’neal, a company based out of Texas, has been filing thousands of deficiency judgment claims throughout the state and country.  Since banks are well aware of the high costs in litigating claims against homeowners, most of them have chosen to act more efficiently and assign (sell) their deficiency judgment claims to third party collection companies like Dyck-O’Neal, Inc.,  for probably pennies on the dollar.  These companies then attempt to squeeze whatever they can from homeowners in deficiency judgement actions and in many reported instances use harsh, harassing and aggressive methods to make the  succumb to their demands. About 7 out of 10 deficiency judgment cases we are currently defending have Dyck O’Neal Inc. listed as the plaintiff.  Dyck-O’Neal, Inc.,as been buying deficiency judgments from banks and going after homeowners like you since 1988. They are well versed and experienced in this game.  You can be sure that they strategically chose which deficiency judgment claims to buy from the banks.

How is Oppenheim Law Defending Against Banks and Companies like Dyck O’Neal?How Are We Defending Against Banks and Companies Like Dyck O’Neal?

During the initial “Complaint Stage” of deficiency judgment lawsuits, Oppenheim Law  generally starts off by attempting to dismiss the entire case against the homeowner.  We attack the deficiency judgment lawsuit filed by testing the legal sufficiency of the ‘Complaint.’  We also have seen many issues with ‘service of process’ in these new deficiency judgment lawsuits. During the “Complaint Stage” addition success is achieved by our associates challenging the substantive nature of the Complaint.  For instance, many times the foreclosing bank discharged or “wrote-off” the deficiency amount after the foreclosure judgment was entered against the homeowner.  In doing this, the banks received a tax credit by the IRS.

Oppenheim Law cases showed that the bank or their assignee (the companies they sold the deficiency judgment to such as Dyck O’neal) may not have a valid claim against homeowners  since they have discharged the claim. If the deficiency judgment lawsuit is not completely dismissed during the initial “Complaint Stage” mentioned above, the Firm will move on to other, more technical strategies in defending your case.   These strategies are unique and narrowly tailored to each of our clients’ specific needs based on the situation. Do Not Just Ignore the Deficiency judgement lawsuit "Talk to the hand" Make sure that deficiency judgement lawsuits are not ignored.

 

If there is one thing that the homeowner will take away from this blog-post is that the worst thing they can do if  faced with a deficiency judgment lawsuit is to simply ‘ignore it.’ The entity filing the lawsuit wants you to ignore it! Why is that?  If after 20 days the homeowner that has been served has not taken legal action, the Creditor, Dyck O’Neal Inc. or whoever is suing for the deficiency judgment will move for a Default Judgment.  Once they are granted a Default Judgment by the court they will move to:

  • Garnish your wages
  • Cease your bank account
  • Repossess your car
  • Attempt to liquidate your assets

Stand Your Ground! To put this in lay terms, they will hound you (homeowner or property owner) like a wounded dog for up to 20 years. G-d forbid should you die, they can and will go after your estate, vigorously.

Do Not Give Up Your Rights To Defend Your Home - ‘Stand your ground ‘ means: Do not give up your rights to defend yourself.   If you would like to know more or are interested in a consultation with one of our experienced attorneys currently handling several deficiency judgment cases, give Oppenheim Law a call at (954) 384-6114.

We HIGHLY recommend you retain an attorney if have been or anticipate being sued by Dyck O’Neal Inc. or by any other entity seeking a deficiency judgment against you.

  

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