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When it Comes to Real Estate, Congress Can't Find Their Way Out of the Bag

Congress Just Can’t Find its way out of Santa’s Bag When it Comes to the Real Estate Market

As very few probably know, including myself until recently, the House of Representatives has passed an early holiday gift for taxpayers concerning real estate.  It is also expected that the Senate and President will follow suit in the near future. Ironically; however, it is too little, too late.

What the Bill Covers

As George Bush was leaving the presidency and the economy near collapse, the former President signed a bill providing an exemption to loan forgiveness income to those homeowners who had received any kind of loan forgiveness income.  Said “loan forgiveness income” would include money derived by way of short sale, principle reduction, loan modification, or in a foreclosure where the deficiency was waived on their primary residence.  When one receives income from such an exemption one would receive a 1099, meaning that the income received would need to be declared on your tax return and thus taxed.  Of course, there are alternatives to paying such taxes, such as pleading with the IRS that you are insolvent and, in fact, many accountants are quite savvy at doing that and therefore possibly removing said income from taxation.

Christmas Coal for Responsible Homeowners?


However, in most circumstances people end up paying the loan forgiveness income if in fact they receive a 1099.  As we approach the end of 2014 and reflect on the year in real estate, this past year a substantial portion of the population were put in the stressful situation of deciding how to handle their distressed property.  Decisions needed to be made whether to engage in short sales, modifications, or battle foreclosure. Many homeowners acted in a manner that they, and most others, believed to be prudent in their property management as the tax benefit(s) had seemingly run out at the stroke of midnight the previous year. But to everyone’s surprise, Congress is now retroactively stating that any transaction involving the primary residence that occurred in the past year  where there was in fact loan forgiveness income will be waived.  Now this of course is a delightful holiday carol to the ears of those who were involved in such transactions, but it is an unexpected giant lump of Christma coal in the stocking for others.


Those who attempted to be prudent, opting not to engage in loan forgiveness transactions out of the fear of tax ramifications, have been retroactively moved from the Good List to the Naughty List.  In fact statistically we will see that the number of short sales fell off precipitously this past year holding back the entire economy.

Unanticipated (That Should Have Been Anticipated) Consequences

Realtors, lawyers, title companies, architects, engineers, surveyors, homebuilders, as well as banks all were harmed by the fact that there was a substantial decline in short sales. Further, it probably hurt the real estate market by reducing the amount of actual transactions that occurred.

 So here we have it:  Congress is  passing a law that is retroactive that provides no guidance whatsoever to the future conduct of an individual.

In fact, the law again is supposed to expire at midnight 2014.  Isn’t that once again too little, too late?

I say Merry Christmas & Happy Holidays to all.

From the trenches,





Roy Oppenheim's 2014 Personal Greetings to you this Thanksgiving

- Heartfelt thoughts along with a twist

Thanksgiving, foreclosure law, civil rights, florida real estate

Courtesy: RDO 2014 Napa Valley, CA harvest

This is now my eighth year that I am writing my ‘Thanksgiving Greeting’ to you. When I write this particular blog I always sit back and think about those things that I am truly thankful for each year. Obviously, there are some things that I – like you, are always thankful for and I will repeat them because they are important to me. First and foremost, I am thankful for my family and for my good health and for the fact that I have been able alongside my gracious wife Ellen to have built a law firm that is now turning 25 years old.

Ironically, even through a turbulent economy we have outlasted many of the venerable institutions that originally founded the City of Weston, FL. We too, are thankful for this and of course for our clients and friends that over the years have continued to rely upon us for sage advice.

Being thankful for the law trumping predatory lending in foreclosure lore 

Thanksgiving message from Roy Oppenheim, South Florida Law Blog

Late Fall harvest in Napa Valley, California 2014 courtesy of R. Oppenheim

Moving away from the personal for a moment, I am also most thankful for being a citizen of the United States.  While as many of you know I have been continually outspoken about the manner in which our judiciary system has handled the foreclosure crisis having put expediency at times over proper rules of civil procedure and just plain fairness. But like other battles that we have seen in the history of the United States, whether those battles go back over 100 years such as civil rights, women’s suffrage or more recently the rights of the gay community, we have found that over time justice typically prevails. And, thus, it is in that context that I am thankful to now see some rays of hope in connection with a new understanding and appreciation for the arguments and concerns that we have been so vocal about over the past 8 years.

We are starting to see a judicial system that is now beginning to thaw and understand that due process is ultimately more important than the outcome of any one case.  It is a new appreciation for our bedrock principals that we must make sure that as a civilization that we continue to follow the rule of law not the rule of robo-signing, robo-witnesses, robo-judges and rocket dockets  that are more concerned with the number of cases moved in a day, a week or month than whether or not justice properly prevailed. Of course, by no means am I suggesting that this struggle is over but what I am saying is that we are seeing tremendous progress and for that I too am truly thankful this Thanksgiving.

Thank you for the new Alcatraz

Lastly and maybe most importantly what I am thankful for is for the freedoms that we all enjoy here in the United States. By way of example,  I recently had the opportunity to visit Alcatraz Island, in the Bay,  right off the coast of San Francisco. Currently, there is a fascinating exhibition by an artist by the name of Ai Weiwei, a Chinese contemporary artist and civil rights dissident who was secretly detained by Chinese authorities for almost 3 months for his outspoken criticism of the Chinese government. His art is a continued expression of shedding light in the most darkest corners by celebrating those dissidents from around the world who have been detained or banished for having the strength to speak up against corrupt or abusive authority.  But most interestingly, as a national park and as one of the most frequented national parks in the United States one of the artist’s pieces celebrates and honors Robert Snowden.  As we all know Mr. Snowden is currently a fugitive of justice for having leaked and exposed violations of privacy rights by our own NSA.

foreclosure defense attorney roy oppenheim,  real estate defense, thanksgivingcredit: Sharron Lovell / Polaris

So, thus we have a Chinese civil rights activitist celebrating the work of an American who is currently an outlaw; yet, the celebration is occurring on federally owned land controlled by the very government that wants to arrest him.

For this kind of oxymoron or contradiction, I say Thank You this Thanksgiving for I know –  nowhere else in the world would this ever happen.

All the best to you and your loved ones this Thanksgiving. G-d Bless you and America.

From the Trenches,

Roy Oppenheim

954-384-6114 office

Florida real estate and foreclosure defense attorney Roy Oppenheim, Oppenheim Law Firm


Year End Real Estate Defense and Foreclosure News in Florida – Oppenheim Law

Real Estate Rumor Mill

Take note:  Rumor has it from a highly-credentialed source that the retired South Florida  ‘Judges’ appointed about 6 years ago to come out of retirement are yet, retiring again.

Once again, what started as a special division to push foreclosures in Florida through the judicial system more quickly has come to a screeching halt!

As legislation would have it, there are NO funds in the budget to renew the ‘part-time, old-timers’ contracts to keep the foreclosure housing crisis flowing quickly through the system. Senior judges are no longer afforded the special allocations.

Yet, the foreclosures in Florida are still causing plenty of legal issues with robo-signer redux as discussed in the New York Times.

 In the trenches -

Trends in the judicial landscape as it relates to Florida foreclosures called the infamous  ‘rocket-docket’ ends and hopefully the foreclosure housing nightmare will wind down in 2015. Yet, with defiency judgements still looming,  homeowners need to “stand their ground” and be legally prepared as the debt collectors try and re-foreclose on already foreclosed properties.

In this video, Roy Oppenheim speaks about the end of the year judicial changes happening, now. Adjudicating foreclosure jurisprudence to reaffirm the rule of law with good judicial decisions making a comeback.

Happy retirement; again, foreclosure Judges.

In The Trenches,

Roy Oppenheim

Roy Oppenheim

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.


The American Horror Story winds down in Florida as cases become involuntarily dismissed by judges

Title Card from American Horror Story Season I.

With the ‘zombie foreclosures’  still lingering,  at this point let’s call it, The American Horror Story if you will;  but, it seems some Florida courts have finally begun to apply the rules of law, civil procedure and evidence in foreclosure cases. 

Stopping the “trick -the-homeowner and treat-the-bank” system of procedure and evidence that have haunted Florida homeowners for nearly a decade; finally, the court system ‘gets it.’ And, it appears there is a growing trend of foreclosure cases being involuntarily dismissed by judges as the freak show finally winds down.

Season 1: Murder House – Banks Must Prove Standing

In order for a bank to foreclose on a homeowner, it must prove standing to collect on the subject Note and Mortgage.  A bank (or servicer) has standing to foreclose if they can prove that they are the “holder in due course” of the note and mortgage.  In the past, banks have desperately attempted to prove standing to collect on countless mortgages and notes that have been bundled, transferred, traded, and sold to numerous different banks, servicers, and entities of the like.  These efforts often times included the procuring of forged assignments and other documents in order to prove standing to bring suit on notes and mortgages.  After a slap on the wrist from the attorney general in 2010 for their exposed fraud on the court, the banks then turned to unqualified witnesses to attempt to establish standing.

Season 2: Asylum – Zombie-esque Witnesses

In thousands of foreclosure cases across the state, banks are producing witnesses to help prove their cases.  In theory these witnesses are supposed to testify and lay the proper foundation for the admittance of evidence that is imperative for each individual foreclosure case across the state.  Each witness should have particular knowledge about whether the evidence (various documents and system entries) presented by the bank was made at the time of the event; by a person with knowledge; kept in the ordinary course of business; and done as a regular business practice.  If the witness does not meet the qualifications set out in Florida’s Evidence Code, then they are deemed unqualified and the bank’s evidence dies.

Problems arise when a homeowner who creates a note and mortgage with Bank A (which is then sold to Bank B, then assigned to Bank C, who in-turn sells it to Bank D) is foreclosed upon by Bank E.  How is Bank E to prove standing to foreclose when they don’t have all the required documentation?

Without going into boring detail, the bank will produce a robo-witness (or for festive purposes, a “Zombie Witness”) from their loan servicing department to testify that at every step along the way each bank or servicer met the requirements for handling the loan and transferring or selling it to others.  It doesn’t take a whole lot of common sense to see that a witness employed by Bank E does not have the requisite knowledge or foundation to testify about the happenings in Bank A, B, C, & D.

Season 3 CovenSeason 3: Coven – Houses No Longer Haunted? 

Until recently, foreclosure defense attorneys had been working rigorously and zealously to prove the banks’ witnesses as unqualified to testify at trial – only to have judges blatantly overlook the rules of the court and allow robo-witnesses to validate the banks’ case.

This past month, several appellate courts across the state have changed their tune, realized their mistakes, and have begun to find banks’ witnesses to be unqualified to testify about vital documents to the case.  As a result, there seems to be a growing trend of foreclosure cases being involuntarily dismissed by judges.  If the trend continues, we may finally see the double-standard in foreclosure courts come crumbling down, ending the “trick-and-treat” era.

Florida Foreclosure Freak Show EndsSeason 4: Freak Show – Scary lore finally giving way to the law


In The Trenches,

Roy Oppenheim


Are you over the economic housing crisis and foreclosures South Florida?


In a recent article by editor Paul Owers, the Sun Sentinel reported that “New foreclosure cases declined across South Florida” in September and the third quarter, according to a report Thursday from RealtyTrac Inc.

Published exerpts by Roy Oppenheim in the article are republished here; but WAIT, there’s so much more!

retirementNOTReal Estate rumor mill – take note:  Rumor has it from a highly-credentialed source that –  the retired South Florida  ‘Judges’ appointed about 6 years ago to come out of retirement are yet, retiring again. Yes!

Once again, what started as a special division to push foreclosures in Florida through the judicial system more quickly has come to a screeching halt!

As legislature would have it, there are NO funds in the budget to renew the ‘part-time, old-timers’ contracts to keep the foreclosure housing crisis flowing quickly through the system. Senior judges are no longer afforded the special allocations. Happy retirement; again, foreclosure Judges.

The reason why?

retirementAccording to the Sun Sentinel, “Broward had 180 filings last month, down 59 percent from September 2013. In the July-through-September period, Broward foreclosure starts dropped 63 percent. And, Palm Beach County had 381 filings in September, off 45 percent from a year earlier. Third-quarter starts fell 23 percent.”

Roy Oppenheim, a South Florida foreclosure defense lawyer, according to the Sun Sentinel, said other factors could contribute to more foreclosures, though he doesn’t expect the problem to return anywhere close to the crisis levels of 2008 and 2009.

 Fewer homeowners are completing short sales because the tax benefit disappeared. And the economy is showing signs of slowing down, said Oppenheim, who is expanding his Weston offices with the expectation of increased business in the months and years ahead.

“There will always be foreclosures out there,” he said. “It’s going to be become a permanent part of the economy.”

Latest 2014 polls show Gov. Rick Scott and Charlie Crist in tight race with only one month left. Oppenheim says, "Fla. real estate needs to be addressed by both."

Latest 2014 polls show Gov. Rick Scott and Charlie Crist in tight race with only one month left. Oppenheim says, “Fla. real estate needs to be addressed by both.”

The South Florida Law Blog invites both Gov. Rick Scott and Charlie Crist to watch this and address our untapped Florida economic resource dealing (still!) with foreclosure issues.

In the Trenches, 
Roy Oppenheim