Issue link: http://dsnews.uberflip.com/i/749391
88 sale can't occur for a period of time. During all that time, they get to stay in the property, but while they're in the property they're not paying the mortgage, and if they're not pay- ing the mortgage they're probably not paying other things too. ere are probably municipal liens or liens from the city, where they might not have paid their water some months or they might not have paid the electrical some months. ey also might have caused a code violation because they weren't taking care of the property during this time and the city has claims that there is a code violation and places a lien on them for failure to fix the code violation. While that's occurring those liens are being placed on the property. e way that we used to understand the law is that's not the ultimate purchaser of the property's responsibility because it occurred between the time of the final judgement and the sale. Ober came along and said no, once the final judgement is entered the lis pendens is no longer effective to bar those liens. ose liens that accumulate on the property are valid against the property, so whoever purchases at the sale is responsible. How will this decision impact servicers now that these liens are attached to these proper- ties? Well obviously, the liens themselves will cost money. Getting rid of the liens will cost money because it's all a process and a hassle. Additionally, there had been a trend in Florida for a court to grant a fairly liberally extended sale date. If the servicer, or if the plaintiff, wins at trial, the court will say "you can have some time to move out. You can have 90 days; you can have 120 days. We'll set the sale out that long." ere have been a couple of plaintiffs' attorneys who have now been saying "well, no, we have this new Ober case out that says that any extended sale date means that liens could be occurring on the property which would prejudice us." I've seen a couple of insistences where the court will say, "well, we shouldn't have an extended sale date then," and it's nega- tively impacting the borrowers in some cases. I'm not saying that that's a wide spread thing, but it could become one. Do you see this as a trend that could impact servicers and the foreclosure process nationally? ere's really no way to tell. Florida state law can obviously be used as persuasive author- ity in any other state, but it's not binding on any other state. Some states may choose to adopt Florida law on this issue. ere's nothing which would stop another state from adopt- ing the position that this court has taken, but, again, it seems to be an isolated case so far, and it's not the Florida Supreme Court. FLORIDA Florida Case May Cause Both Borrowers and Servicers Difficulty DS News sat down with Morgan Wein- stein, to discuss a recent Florida court case in depth and get his perspective on the impact that it could hold for borrowers as well as servicers. Weinstein is a Senior Associate at Van Ness Law Firm, PLC, focusing his practice on real property litigation and appellate law. Wein- stein has been published on issues concerning mortgage foreclosure in Unbound: Harvard Journal of the Legal Left and the Florida Bar Journal, and will be published in the upcoming edition of the University of New Hampshire Law Review. Describe what has happened in the case Ober v. Town of Lauderdale-By-e-Sea. It's a 4th District Court of Appeals case, which means that's it's one of the Florida courts intermediate appellate courts. In this case there's a question as to the ap- plication of liens that are placed on a property between a final judgement of foreclosure and the sale date. e way that Florida law used to be cognized is you have a foreclosure case that's filed. When that foreclosure case is filed the plaintiff, the lending institution or the mort- gage servicer in the action, will also file what's called a notice of lis pendens, and that serves as a notice to the world that this case has begun and that the plaintiff claims an interest, with regard to the property, and that that interest is superior to interests that may arise after and before the sale. at's the way that it used to be thought of. You file your case, you prosecute your case, and eventually you get a judgement that says that you're entitled to have a foreclosure sale because the property owner owes money and can't pay it, and so you're going to attempt to have the court set the sale of the property to reimburse you for what you're owed. While that's going on, often times you have a borrower, who doesn't want to get out of the property yet for various reasons. ey could be working on the loan modification. ey could be attempting to sell the property. ey could just need more time to get out in order to get their lives in order. During this time, they're filing motions in the court to cancel the sale, for example filing for bankruptcy so that the MEMBER Adriana M Montes, MBA Juris Doctor Candidate Owner, Real Estate Broker REO, Short Sale, Property Management & Acquisitions Director, Luxury Home Specialist, Multimillion Dollar Producer » Awarded #17 with 203 home sales in 2014 of Top 250 Latino Real Estate Agents in US! » Awarded #17 with 220 home sales in 2013 of Top 250 Latino Real Estate Agents in US! » Awarded #16 with 200 home sales in 2012 of Top 250 Latino Real Estate Agents in US! » Awarded #48 with 120 home sales in 2011 of Top 250 Latino Real Estate Agents in US! www.FloridaDreamsRealty.com 321.689.6258 cell - Adriana@FloridaDreamsRealty.com Alabama Hugh Morrow AGENT/BROKER REO; Short Sale reopreferred@gmail.com (205) 871-9966 www.hmorrow.remax-alabama.com Florida Aaron Mighty Broker/Owner MIGHTY REALTY, INC. reo@mightyrealty.com 407-914-7799 www.MightyRealty.com REOs | REO Rentals | Property Management