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Zombie Foreclosures Never Die

Zombie Foreclosures Continue to tie up the Housing Market

Zombie Foreclosures Continue to tie up the Housing Market

If you thought they were gone, think again. The foreclosure phenomenon known as a ‘zombie foreclosure’ has proven that it is here to stay. A zombie foreclosure occurs when homeowners leave their homes when they receive a notice of foreclosure only to find out years later that the bank decided not to foreclose on the property; leaving title in the homeowner’s name.

A recent article in the Sarasota Herald-Tribune found that 25% of all the zombie foreclosures within the United States take place in Florida. Even more frightening is that the tri-county area of Miami Dade, Broward, and Palm Beach counties ranked as the area with the second highest number of zombie foreclosures in the United States according to RealtyTrac here.  The severity of these statistics, played out against the backdrop of a healing housing market and growing economy is enough to send chills down anyone’s spine.

South Florida Zombie Foreclosures Still Exist

Source: RealtyTrac

Those homeowners, who face zombie foreclosure, could potentially have to pay past due fines, property taxes, homeowner association fees, and local government citations. Not to mention the effect these unpaid debts will have on the homeowners credit score, which has already been affected by the foreclosure. This is truly a living nightmare for homeowners who thought they had buried foreclosure behind them, only to see it rise again.

As one of the first firms to realize the emergence of this phenomenon we have been tracking it since 2011.

Video Interview: Roy Oppenheim on Florida Real Estate Double Dip
The American Horror Story winds down in Florida as cases become involuntarily dismissed by judges

Beware of Zombie Foreclosures! Cases Dismissed Months Ago are Now Back from the Dead

Dawn of the Dead (Mortgage): Zombie Foreclosures are Back!

Zombie foreclosures continue: Zombies aren’t after us, they’re in charge of us

What are zombie titles?


Class Action Recall Lawsuits Against Big Companies Misrepresenting Facts

Class-Action Lawsuits

Recall gives consumers the right to reclaim their losses due to conterfeit vitamins and supplements purchased from GNC, Target and WalmartClass Action Recall Lawsuits Against Big Companies Misrepresenting Facts

Oppenheim Law is currently investigating and evaluating recall claims pertaining to the mislabeling of herbal supplements, vitamins, and nutrients. The New York Attorney General recently sent out cease and desist letters to suppliers who have deliberately, knowingly, recklessly or negligently mislabeled herbal products. This includes products from Wal-Mart’s Spring Valley brand, Target’s Up & Up brand, Walgreens’ Finest Nutrition brand and GNC’s Herbal Plus brand. These products, which allegedly contained herbal ingredients such as Gingko Biloba and Saw Palmetto, were found to contain little to no trace of their labeled ingredient and instead were made up of fillers such as powdered rice, beans, peas and wild carrots.

Some supplements contained unlisted fillers such as powdered legumes, a class of plants that includes peanuts and soybeans, which can both trigger allergic reactions.

A product which was labeled “gluten free” was also found to contain wheat as filler. These companies have been deceiving the public into believing that they are receiving the benefits of these herbal supplements, vitamins and nutrients, when in reality they are ingesting nothing but fillers with potential risk for allergic reactions. If you have purchased any of the products listed below, please contact Oppenheim Law at 1 – (888) 384-6114.

Video: Class Action Lawsuits Against Big Companies Misrepresenting Facts


GNCHerbal Plus TargetUp & UP WalgreensFinest Nutrition Wal-MartSpring Valley
Gingko Biloba Gingko Biloba Gingko Biloba Gingko Biloba
St. John’s Wort St. John’s Wort St. John’s Wort St. John’s Wort
Echinacea Echinacea Echinacea Echinacea
Ginseng Saw Palmetto Ginseng Ginseng
Saw Palmetto Valerian Root Garlic Saw Palmetto



Should've Been Straightforward, But See How a Clerical Error Put BofA on Wrong End of Foreclosure Case

The following article was originally written by  Samantha Joseph, for the Daily Business Review with exerpts by Roy Oppenheim.

Should've Been Straightforward, But See How a Clerical Error Put BofA on Wrong End of Foreclosure Case

It should have been a straightforward case, but a clerical error put Bank of America on the losing end of a four-year foreclosure case Wednesday.

The bank won a final judgment against homeowner Heather Epstein in 2009. By the following year, she had vacated her Tamarac condo, and Bank of America gained control of the property with a new certificate of title.

Bank of America made mistakes. The problem was the mortgage and all subsequent documents included an incorrect legal description of the condo. Photographer: Patrick T. Fallon/Bloomberg

Photographer: Patrick T. Fallon/Bloomberg

The problem was the mortgage and all subsequent documents included an incorrect legal description of the condo.

“It’s about mistake upon mistake upon mistake,” said Epstein’s attorney Roy Oppenheim, who teamed with Donna Greenspan Solomon of Solomon Appeals Mediation & Arbitration and Jacquelyn Trask and Geoffrey Sherman of Oppenheim & Pilelsky. “And the mistakes continue to compound.”


Court documents suggest the bank discovered the error in 2010 after the Broward County property appraiser’s office rejected the certificate of title and refused to transfer title because the legal description didn’t match the official record.

But attorneys say it took the bank two years to move to fix the problem, leaving Epstein as the documented owner facing homeowner association bills.

“She was on the hook with the HOA because the bank left her hanging,” Trask said. “They did nothing with the property and made it worse. They did not maintain it or cover the utilities, and she didn’t even know she still owned the property.”

In 2012, Bank of America filed a motion to wipe out the foreclosure judgment and certificate of title to allow it to correct the mortgage documents.

But a trial court denied that motion without prejudice because Florida’s rules of civil procedures allow only a one-year period to vacate judgments due to errors.

Bank of America made a second attempt in 2013, this time arguing the incorrect legal description on its documentation could affect the rights of a neighboring property owner. The trial court sided with the bank, prompting Epstein to appeal.

Fourth DCA Judge Burton Conner said a court could have corrected the legal description before the foreclosure judgment but not after, so Bank of America would need to start the foreclosure action from the beginning. Judges Cory Ciklin and Alan Forst concurred.

Homeowner Association fees and property maintenance now need to be addressed. Who's responsible? The bank or the homeowner?

Homeowner Association fees and property maintenance now need to be addressed. Who’s responsible? The bank or the homeowner?

For Epstein, that’s both good news and bad. She regained control of the property but will likely have to battle it out in court to determine who’s liable for maintenance and upkeep after she left the home.

“That’s going to be the bigger question,” Oppenheim said.

Bank of America attorney Manuel Hiraldo of Blank Rome in Fort Lauderdale declined comment.

Another case of clerical slipups cost Wachovia Mortgage FSB its foreclosure case against a group of homeowners at Courtyard Homes at the Grove in Weston.

But this time it was a court error—and not the bank’s—that led Broward Circuit Judge Michael Gates to toss the case.

Wachovia, now part of Wells Fargo Bank NA, filed the original promissory note before trial against homeowners Jose Montes and Catalina Solano. But when the note disappeared from the court file, the defendants successfully challenged the bank’s evidence and won an involuntary dismissal.

But about a week later, a court clerk found the note and mailed it to the bank.

“Wachovia was denied the opportunity to present any evidence in support of its claim, let alone finish its case in chief,” Fourth DCA Judge Cory Ciklin wrote Wednesday, reversing the lower court’s ruling and remanding the case.

Judges Jonathan Gerber and Spencer Levine concurred.

“It was a clear-cut case. The opinion says it all. It was procedurally improper, but it is what it is,” said Wachovia attorney Francisco Armada, who teamed with Beverly Pohl of Broad and Cassel. “Now we have to go back to trial and retry the whole case.

It took more than a year to resolve the appeal.

“It was a case that should never have happened,” Pohl said.

Miami Lakes attorney Robert Flavell represented Montes and Solano. He did not respond to a request for comment by deadline

Read more: http://www.dailybusinessreview.com/id=1202716388441/Shouldve-Been-Straightforward-But-See-How-a-Clerical-Error-Put-BofA-on-Wrong-End-of-Foreclosure-Case#ixzz3QgctvQk4


United States Supreme Court Strays from the Pack with a Crucial Ruling for Borrowers

United States Supreme Court Strays from the Pack with a Crucial Ruling for Borrowers

The Truth in Lending Act (TILA) gives home loan borrowers a three-day right to rescind, or cancel, a loan transaction. For these first three days, this right is unconditional, without any caveats. After the three days run out, there is a catch; the borrower has the right to rescind only if the lender has failed to satisfy TILA’s disclosure requirements. Even if the required disclosures are never made, the right of rescission will expire after three years; thus, straying from the pack.

In a unanimous, consumer-friendly decision on January 13, 2015, the United States Supreme Court clarified what it takes to exercise this right and made it easier for borrowers to assert it, straying from the pack in doing so. You can find a copy of the opinion here.

What the Supreme Court Did

Countrywide Lending: United States Supreme Court Strays from the Pack with a Crucial Ruling for Borrowers

In 2007, the Jesinoskis borrowed money from Countrywide Home Loans in a refinancing. Exactly three years later, they mailed Countrywide a letter seeking to rescind the loan. Their rescission was disregarded by Countrywide’s successor, Bank of America.

Four years after the refinancing, they filed a federal lawsuit asserting their right to rescission. Both the federal trial court and the federal appellate court sided with the bank and dismissed the lawsuit because the Jesinoskis did not sue within three years of the loan transaction, even though the TILA law unequivocally states a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so.”  The Supreme Court brought the lawsuit back to life. Looking at the same TILA law, the Supreme Court found it to mean exactly what it states: all a borrower needs to do to exercise the right to rescind in the three year period is to provide written notice of rescission, which is exactly what the Jesinoskis did. The TILA law does not require the borrower to file a lawsuit within the three-year period, the Court ruled.

Why does this matter? Right of Rescission: United States Supreme Court Strays from the Pack with a Crucial Ruling for Borrowers 

First, the Court’s ruling does not merely apply to the Jesinoskis. The Supreme Court has ruled that any borrower—including YOU—need only provide written notice to the lender in order to exercise the right to rescind.

Second, the Supreme Court UNANIMOUSLY ruled in favor of the borrowers despite the fact that the two courts below ruled against them. The Supreme Court strayed from the pack and made a consumer-friendly decision.

Third, the decision saves borrowers a ton of money, paper and time, as it replaces the lawsuit requirement with the written notice requirement,  which is a lot less expensive and time-consuming.

Fourth, even if you file a lawsuit seeking to rescind under the TILA law years after the loan transaction, the court will not be able to dismiss your case for untimely exercise of the right to rescind provided you gave written notice within the three years after the transaction.

Countrywide Lending: United States Supreme Court Strays from the Pack with a Crucial Ruling for BorrowersFifth, if you gave written notice, and the lender has refused to honor it, do not be shy about suing the lender in federal court to obtain the rescission and whatever other damages you may have incurred at the hands of the lender. The TILA law allows recovery of court costs and a reasonable attorney’s fee award in an action in which a person is determined to have a right of rescission.

Right of Rescission

This is where we come in. At Oppenheim Law, we are available to evaluate your options, whether you are just considering rescinding a loan transaction or are looking to taking the bank to court. Contact us today.

About the author:

United States Supreme Court Strays from the Pack with a Crucial Ruling for Borrowers

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

Roy Oppenheim, Sr. partner at  Oppenheim Law,  founder of The South Florida Law Blog sets the record straight in real estate, foreclosure and homeowner related matters. For over 25 years, the Firm 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,  homeowners buying and selling, refinancing or modifying their loans. The firm also has developed a national reputation defending homeowners in foreclosure and 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. – See more at: http://southfloridalawblog.com/end-of-the-year-homeowner-defense-legal-news-oppenheim-law/#more-10472