Monthly Archives: May 2014

Do I Need A Will?

Dear Juris Doctor;

I am 70 years old and I have never had a Last Will and Testament. Last week I married a woman I have known for 14 years. She was a friend of my deceased wife and me. I have two children from my prior marriage. I have grandchildren who are minors. My investments dwindled after 2001. I own my home, some bank accounts and personal property. I have been told that, if I die without a Will, the State of Florida will receive all my assets. Is that true?

Michael in Jupiter


Posted : September 10, 2010

Dear Michael,

I have heard that question so often and the answer is No – in most cases. If you die without a Will you are intestate under Florida law. In that case the Probate Court Judge decides who administers your estate and Florida Statutes direct to whom your probate assets will be distributed. You have no choice in the matter. Your wife and children will receive the percentages outlined by the law. With a properly executed Last Will and Testament, you select the Personal Representative and you decide who will be the beneficiaries of your assets. You decide how your wife, your children and grandchildren should share your property and if restrictions or limits should be placed on the distributions. Your Last Will and Testament can be customized if you have spendthrift or drug or alcohol dependent beneficiaries.

Your personal circumstances need to be evaluated and then you can determine which estate planning documents are best for you. You should evaluate Last Wills and Testaments, Estate Taxes, Revocable and Irrevocable Trusts, Gifts, Family Partnerships, Joint Ownership of Property,Payable on Death Accounts, Powers of Attorney, Living Wills and Do Not Resuscitate Orders.

Sincerely, J.D.

Congratulations! You Are A Winner …

Diane was in shock when she heard the gentleman on the phone say, “Your husband has won $285,000.00 in the Publisher’s Clearinghouse Sweepstakes.” Diane’s husband had recently
passed away so she felt mixed emotions at the news. “Do you want the Prize Patrol to deliver the check while you are filmed for TV or do you want to remain anonymous?” he asked.

Diane opted for the anonymity. The gentleman advised her that the check would arrive in Miami in a few days and she would receive another telephone call. Diane hung up the phone and pondered her course of action. “Do I tell them my husband is not alive? Am I entitled to the prize as the surviving spouse?” she thought. Many decisions would have to be made.

The next day the gentleman called and advised Diane that the check had arrived in Miami. He asked her to send a cashier’s check for the rocessing fee in the amount of $2,850.00. “Processing Fee?” she inquired as she had never heard of this before. But then she had never known anyone
who had won the prize before. Diane questioned the fee and the gentleman said he would have the company attorney call her. Within an hour the attorney called and verified the payment of the processing fee by the winners of the prizes.

Diane did not commit to pay the fee because she did not feel comfortable with the request. During the next telephone call Diane informed the caller that she would meet him in Miami and after she received the prize check she would go with him to the bank and pay him the processing fee. He said he could not leave his office. Diane did some research and realized she was in the midst of a scam. No one pays a processing fee to Publisher’s Clearinghouse to retrieve a prize. How many countless persons actually became victim

From The Editor:
Congratulations! You Are A Winner … of this scheme along with Nigerian e-mail and fax hoax, the found money in the parking lot scam, etc.? Although the Publisher’s Clearinghouse is a reputable company that has been in business for more than 50 years, it and other sweepstakes companies produce other effects on many of us and, in particular, the seniors in our communities.

A common thought does come to mind when one reads the mailers from the sweepstakes companies: “If I buy the magazines and gifts offered in the mailing, I will have a better chance of winning the prizes!” My mother lived in her own apartment until she reached the age of 86. I began to notice the beginning stages of Alzheimer’s Disease in 1997. Short-term memory loss and repeated questions became more frequent. She was always concerned about the location of her pocketbook. I would bring my mother’s mail each day from her mailbox to her apartment.

The message in large print was the same on many of the envelopes: “Congratulations. You are a Winner.” There would be an asterisk referring to the smallest print at the bottom of a page which explained you are a winner if you have the matching numbers… I doubt many people actually read the fine print. I began to notice increasing numbers of sweepstakes mailings and magazine subscriptions. My mother received winning notices from Readers’ Digest Sweepstakes, the National Sweepstakes Company and many other familiar names. I believe the companies must have sold the names of the subscribers because the mailbox became inundated with “junk mail.” Then the gifts started to appear. There were cassette tapes, wallets, costume jewelry, etc. My mother’s kitchen counter began to look like a gift shop. When I discussed the situation with my mother, she had no concerns. She was confident she would be winning the sweepstakes because the language in the mailers was very convincing. Although I had mixed feelings, I decided to slowly “sort” the mail and eliminate the sweepstakes mailings. Over the course of months the mailings decreased as a direct result of the lack of purchases and responses. My mother never questioned it.

Diane filed a police report and she called the FBI after her final phone call with the “sweepstakes company.” She had the phone numbers for the caller and the “company attorney.” Maybe the authorities will be able to foil further attempts by these criminals. Fortunately Diane did not become a victim of a scam. Please caution your friends and family about this recent approach to seek payment of a 1% processing fee to collect a sweepstakes prize. Unsuspecting persons might consider it a small price to pay for a big payday. Let’s make sure that only legitimate callers will say, “Congratulations. You are a winner.”

Will The Foreclosure Freeze Help Me?

Dear Juris Doctor;

My husband and I had short-term financial difficulties in 2009. After several missed mortgage payments I asked my lender to work out a payment schedule so that I could catch up on my payments. The telephone clerk said there was no such program and that I should apply for a loan modification. I applied and received a modification agreement in June of 2009. I mailed the agreement to my mortgage company within a few days of receiving it and I have been paying the modified amount for a year and a half. Now my mortgage company tells me it has no record of my modification and it will foreclose against me. Will the foreclosure freeze help me?

Amber in Palm Beach Gardens


Posted : November 6, 2010

Dear Amber;

On a daily basis I am contacted by homeowners facing foreclosure who are frustrated with the mortgage modification and short sale processes. Less than one-third of the families facing foreclosure have been offered mortgage modifications despite hopeful predictions when the federal programs were announced. The lenders have blamed the homeowners for their lack of responsiveness. I have been assisting clients with mortgage modifications for two years and it is the lenders who have created the delay for the most part. Initially they were understaffed and the staff was not properly informed of the procedures. Countless homeowners have been told that the lender did not receive faxed or mailed documents from them. Documents have been “lost” by lenders too frequently. Months go by and the lenders tell the homeowners that their documents are stale and they must re-submit bank statements, pay stubs and update financial statements. Trial modifications have been in limbo for many months while the lenders consider permanent modifications.

I believe that the self-imposed freeze and scrutiny by lenders of their foreclosure documents and the investigations by the Attorneys General in all 50 states will result in more mortgage modifications and short sales while the foreclosures are halted. Lenders receive financial assistance by Fannie Mae and other federal programs when they foreclose. Therefore the incentive to modify has been lacking. Finally the lenders will be motivated to modify loans or approve short sales while the freeze is in effect.

Sincerely, J.D.

Criminals are Taking Possession of Unoccupied Homes that are For Sale?

Dear Juris Doctor;

I have been hearing for months the stories from around Florida in which squatters are moving into properties. Is it true that criminals are taking possession of unoccupied homes that are for sale? I read a man was arrested for renting 30 homes which he did not own to tenants.

Kate in Loxahatchee


Posted : October 6, 2010

Dear Kate,

A few weeks ago I was introduced to such a situation in Loxahatchee. The property was listed for short sale at the beginning of August and the owner moved out of the property. One day the listing agent stopped by the house to find the locks changed and a woman living in the house. The owners met a deputy sheriff at the property and the occupant produced a document showing she was entitled Ask The Juris Doctor to occupy the residence. The deputy sheriff advised the owners it is a civil matter since he could not make an independent determination if the document is valid.

The owners contacted me and there is a possession issue. The owners have filed a lawsuit for ejectment of the occupant. The document in the woman’s possession is not legitimate. She is not a tenant so the eviction remedy is not available.

When individuals experience financial difficulties, they sometimes make hasty decisions without the benefit of professionals or they run from their challenges. As revealed by the fact situation above, it is imperative that homes are not left unoccupied if at all possible. When some people cannot pay their mortgage or they are served with foreclosure papers, they flee. They do not realize the process could take six months to several years to complete a foreclosure. They do not have to leave their residence immediately. If you meet homeowners who are experiencing financial distress, please caution them about the complications of an unoccupied residence. The ejectment lawsuit could take six months or longer to resolve if the squatter defends the action. Chances are good she may disappear at some point since criminal charges will be brought against her.

Please recommend to homeowners with financial challenges to consult a real estate attorney to review their alternatives. There are usually several available which might avoid a complication such as a squatter.

Sincerely, J.D.

Will anyone help me save my home?

Dear J.D.;

My name is Dee. My husband moved to Texas last year and left me here with three children. He is not working and sends no child support. I am a school teacher and my salary alone is not enough to pay the mortgage and our living expenses.

Eighteen months ago I applied for a loan modification and submitted all the paperwork required. The mortgage lender’s representative said that I will not qualify for the modification because my monthly payments were current. I struggled but I always paid my bills somehow. I called again to speak with a different representative and was told again that I would have to be delinquent to receive a modification. Against my better judgment, I stopped making the payments and then applied again for the loan modification. I submitted the requested documents (50 pages) by courier and was told that they were not received. I submitted them by FAX and was told that all pages were not received. I would call and have to wait a half hour or 45 minutes before I could speak with anyone. I would be on hold and then the line would be disconnected so I would have to call back. It became very time consuming and I did my best to follow up. I re-submitted all documents requested. After the 3rd month I received a notice that the company was sold and I would have to re-submit the application and all the documents to the new entity.

The following month I received a notice that I was in foreclosure status because I missed three payments. I immediately called and told the clerk that I did not want to stop making payments but I was told that I had to stop in order to qualify for the modification. I said I would send a payment and was told the payment would not be accepted because I was in foreclosure status. I advised the representative that they told me to stop making the payments and asked how can the company tell me to stop paying and then blame me for not paying? He did not have a plausible answer for me. I became mad and asked to speak to a supervisor but received no satisfaction. They would not accept my payment. I again submitted packages that were lost by the lender. After a month or two they would tell me the documents were “stale dated” and I would have to submit new bank statements or pay stubs. Last month I was on the phone with a representative who told me my house would be sold in a month. I hung up the phone in disbelief. I never received any foreclosure papers. I find myself crying in desperation most of the day. Will anyone help me? Should I look for a home to rent?

Please tell me what can be done to help me save my home.

Thank you, Desperate Dee


Posted: August 14, 2010

Dear Dee,

You are not alone. Millions of Americans have received the same treatment from their lenders when they have applied for a loan modification. The lenders blame the homeowners for not submitting the required documents but it is clear that they have not been motivated to modify many loans. The lender’s modification department does not communicate with the collection department. Collection efforts still proceed while a modification is pending. When a foreclosure is filed, the sheriff’s deputy or a process server will serve the Complaint at your residence. Unfortunately there are cases in which the homeowner is not home and several attempts are made without a sincere effort. If the attempts are unsuccessful, the lawyers for the mortgage company will publish the Notice of the Action in a newspaper- but in most cases the homeowners do not read those notices.

If you contact an attorney immediately there is a good chance you may save your home. The attorney will file a Notice of Appearance on your behalf and delay a sale while your modification is pending. There are currently 53,000 foreclosures pending in Palm Beach County. Because of the volume, due process is not always provided to the homeowner. Even if the sale has occurred, your attorney may file a Motion to Vacate the Foreclosure Judgment and Set Aside the Sale. There are remedies available to you but you must act right away. Many homeowners are not aware that they can stay in their homes until the foreclosure process is completed. There are attorneys whose fees may be paid in installments that are customized to your financial situation. Your attorney may very well save your home.

Sincerely, J.D.

Shocking news after a short sale

Dear J.D.;

My name is Veronica and I had been finally adapting to my new lifestyle after several tumultuous years when I received some shocking news. My story begins in 2008 when my husband and I agreed to an uncontested divorce after 15 years of marriage. I received one year of rehabilitative alimony while I studied for my master’s degree in the bio tech field. I received a job offer at the beginning of this year and was excited to begin a career in research.

In 2009, my ex-husband and I sold our marital home in a short sale. Although the process was arduous and the buyers threatened to cancel the contract two times, I was relieved to receive the short sale approval letter from the lender after months of waiting. I was surprised that the lender accepted $150,000.00 less than the amount we owed. I was happy to complete to the sale of the home that I had shared with my ex-husband.

Last week I opened some mail and saw an envelope from a law firm. I had avoided the court system through the uncontested divorce – and the short sale prevented a foreclosure of my marital home. I was not prepared for the letter with the following message:

“We have been retained by your former lender to seek the payment of the deficiency in the mortgage resulting from your short sale. You and/or your ex-husband are responsible for the sum of $150,000.00. If we do not receive the amount you owe within 10 days of your receipt of this letter, we will proceed to recover the debt in the courts along with our attorneys’ fees and costs.”

I read the letter a second time in disbelief. How could this be happening? I immediately went to my desk and opened the file for the short sale. I fumbled through the papers looking for the short sale approval letter. Surely I would find the language that I could provide to the law firm to stop them in their tracks. I read the letter over and over looking for the language in which the lender confirmed that the mortgage was considered paid and the lender waived or released the deficiency. I became frantic as I realized that the waiver or release was not in the letter. The phone began to ring and I noted on the caller id that it was my ex-husband calling. He confirmed that he received the same letter and he was experiencing the same reaction.

Please publish my letter to help other unsuspecting homeowners to avoid my nightmare.

Signed, Frustrated in Florida

P.S. I was told by several people I did not need a real estate attorney for the sale of my home!


Posted : July 12, 2010

Dear Veronica,

Many lenders have not been releasing or waiving the deficiency in short sales. Most sellers do not know that they should be seeking a release or a waiver. The deficiencies in shorts sales total billions of dollars and there are collection attorneys and agencies willing to pursue these monies. They can sue the homeowners and obtain a judgment against millions of unsuspecting sellers who failed to ask about a waiver or release of the deficiency. You and your husband are jointly and severally liable for the deficiency as outlined in your mortgage and note. That means that the lender can try to collect all or part of the debt from you or your ex-husband. In Florida, a certified recorded copy of the judgment will act as a lien for 10 years against your property and it can be re-recorded for an additional period. It will likely be reported on your credit reports. A judgment holder in Florida can require you to appear in Court and disclose all your personal financial information. Wage garnishment and levies on bank accounts and other investments are remedies creditors may pursue.

Since you did not understand the results of the short sale, you are now faced with surprising news. I advise you to seek the advice of an attorney regarding asset protection planning. In Florida your homestead and certain investments are exempt from the claims of creditors. You may also want to consult a bankruptcy attorney. Please tell everyone you know who is considering a short sale to read the approval letter to understand if the lender has waived a deficiency.

With the proper advice you will be Less Frustrated in Florida.

Sincerely, J.D.

Salvation for short sales?

Dear J.D.;

I am Josette. My husband, Frank, and I enjoyed the South Florida lifestyle with our two children until the economic downturn in 2007. Frank is a building contractor and I am a real estate agent. Frank’s projects diminished and my telephone rang less frequently with fewer buyers and sellers in the marketplace. As with most Americans, Frank and I had bought and sold several homes during our marriage – each time a larger and more expensive home to accommodate our family. In 2006 we purchased a home for $525,000.00 with a mortgage of $420,000.00. Also at the closing we obtained a credit line in the amount of $50,000.00.

By the middle of 2008 Frank and I exhausted our savings in order to pay our monthly expenses and the tuition for our children’s school. We began to use our credit cards to keep up with the bills with the expectation that the economy would turnaround at any moment. One high priced closing is all I would need to infuse our bank account with the necessary cash to keep us afloat. But that closing did not materialize. In 2009 we came to the realization that we had to cut our expenses and we would have to sell our home. Unfortunately the value of homes in our subdivision continued to decline and the fair market value was $400,000.00. With $470,000.00 in mortgage debt to the first and second mortgage holders, we listed our home for a short sale. Frank and I submitted all the information and documentation requested by our lenders along with a contract from a buyer for a sale price of $375,000.00. Several months passed and the lender requested updated financial information. The file had been lost and then our loan was assigned to several different processors.

Another month passed and the buyer cancelled the contract because he did not want to wait any longer for a response from the lenders. Our home was now back on the market and Frank and I heard that a home like our home across the street sold for $350,000.00. We were dismayed when we received the next short sale offer of $325,000.00. It was submitted to the lender with the thrice updated financial information. Months have passed which actually feel like years. I am afraid this process will never end. My marriage is suffering and I am afraid I will have a nervous breakdown before this is over. Please tell me what I should do since I see bankruptcy as the only alternative?

Respectfully, Josette


Posted : June 12, 2010

Dear Josette,

Help is finally here. Millions of Americans like you and Frank have experienced the frustration of short sale reality. As of April 5, 2010 there is renewed hope that the short sale lenders will finally be more responsive with the implementation of the Home Affordable Foreclosure Alternatives Program (HAFA) under the federal government’s Making Home Affordable Program. Homeowners are eligible for HAFA if they meet the following criteria:

Principal residence
First mortgage originated before 2009
Unpaid principal balance no more than $729,750 for single family residence
Borrower’s total monthly payment exceeds 31% of gross income

Under HAFA the response time of a lender to a short sale request by a homeowner will be 30 days. The homeowners can receive pre-approved short sale terms before they enter into a contract for sale and purchase. Then the homeowners will have 14 days to accept the short sale terms. The homeowners will be given an initial period of 120 days to sell the house – with extensions permissible for up to 12 months. Within 3 business days of receiving an executed purchase offer, the homeowners must submit it to the lender along with proof of funds or a written mortgage commitment letter from the buyer. The short sale lender must respond to the homeowners within 10 business days. The transaction must be “arm’s length” and the buyer will not be able to sell the property again for 90 days to prevent investor “flipping.”

One of the most exciting provisions of the program is that the lender must release the homeowners from future liability for the balance of the mortgage debt and, if a subordinate mortgageholder receives an incentive under HAFA, that debt must also be fully released from future liability.

Participating short sale lenders are prohibited from requiring a reduction of the real estate commission agreed upon in the listing agreement (up to 6%).

The program also provides for $1,500.00 for the homeowners for relocation assistance.

It is believed that 85% of American mortgages are HAFA eligible.

Josette, there may finally be a light at the end of the short sale tunnel for you and the necessary vigor from HAFA to relieve your weary spirit.

Sincerely, J.D.