FORECLOSURE EXPRESS vs THE LITTLE ENGINE THAT COULD - IN COURT SHORT SALE SUCCESS!

In another prime example of the FORECLOSURE EXPRESS vs. THE LITTLE ENGINE THAT COULD, this past week I defeated a lender's counter argument as to why the foreclosure sale scheduled for that day should proceed, even though the lender issued its short sale approval letter.

The issue was that the lender issued the short sale approval letter with a typo in the loan number. No big deal you would think, but after 5 business days of waiting to get it fixed so the short sale could immediately close, the lender couldn't get it done - maybe they ran out of ink for the typewriter (or I guess now it is toner for the printer).

FORECLOSURE SALE IMMINENT -

In any case, with the foreclosure sale imminent, the lender wrote to us and said they tried to get the judge to cancel the foreclosure sale but he refused. That one was an outright lie. The lender never filed any motion to cancel the sale and the judge would have never denied it had they done so.

LENDER SAYS COURT TOLD THEN NO CANCELLATIONS -

Next the lender wrote (yes, this is all in writing!) and said that they want to cancel the sale but cannot because of an administrative court rule that makes you file your motion for cancellation at least 7 days prior to the sale. Well that rule does in fact exist, but they failed to mention the other rule that a lender or borrower can come into court on 24 hours' notice for an emergency hearing on a foreclosure sale cancellation.

So on behalf of the borrower, we filed the day before the sale, a motion to cancel the sale and went to court and noticed the lender counsel. I had attached to my motion the emails (which were copied by the lender to its counsel) by the lender saying they tried to cancel but the judge said no and that they would cancel but it was no too late under court rule to cancel. The lender even wrote, "you can use this email in court to show the short sale is approved."

GO TELL IT TO THE JUDGE! -

To my utter shock (ok, I know I really shouldn't be shocked), lender's counsel argued that my motion was too late and that her lender client had not agreed to any cancellation of the foreclosure. The judge asked her about the emails from her client showing they wanted to cancel - even that this same judge refused to cancel the foreclosure............

You can guess the result - foreclosure sale canceled AND (here I figure the judge was pretty upset with lender counsel) he reset the next foreclosure sale for SIX MONTHS LATER!!!! It won't much matter - the short sale will close this week.

It just goes to show that "it ain't over till the fat lady sings" - or so the saying goes.

BUT THERE IS MORE! -

As if this was not enough, the lender counsel made an in-court comment that it really did not matter that it went to the foreclosure sale, since the buyer could just then buy it from the bank as an REO! Never mind that the buyer may have to wait another 6 months to get the house that way. The real shocker was that the lender couldn't give a hoot that their customer - the borrower - would then have a foreclosure judgment against them along with a deficiency potential. If the short sale closed the foreclosure judgment would be vacated and there was a deficiency waiver. I just couldn't contain myself and retorted to the judge and the other 30 people in the court room how the lender has to realize this foreclosure process isn't just about them, but it is about the borrower too.

You can get a better idea of the Foreclosure Express vs. The Little Engine That Could theory in these two articles:

CONGRESS HEARS OF "FORECLOSURE EXPRESS VS LITTLE ENGINE THAT COULD" FORECLOSURE VS MODIFICATION SCHEME

FORECLOSURE EXPRESS VS. LITTLE ENGINE THAT COULD

Copyright 2011 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com .

See our easy to understand articles at:

TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES