From Getting Served to Getting Sold—In Brief

On average, the banks file 50 foreclosures per day in Miami-Dade County alone and Florida as a whole has one of the highest rates of foreclosure in the country.  Many cases can be fought and won.

The foreclosure process has sped up in 2014.  Now, more than ever, it is important to hire an experienced attorney who will actually defend your case and not just “buy time.”

From the time you get served with the summons and complaint, you will have twenty days to file an answer.  If you do not answer within twenty days, the bank has a right to get a default against you.

That is you losing your home because you did not fight.

On the other hand, if you file an answer, eventually you will either go to amotion for summary judgment (MSJ) hearing or go to trial.

An MSJ hearing’s purpose is to determine whether you need to go to trial because there is some genuine issue of material fact or if the bank is entitled to final jugment as a matter of law.

Trial is when the bank presents its evidence, including bringing its witness, and the court decides if and when your house gets sold.  If you lose at trial, typically your sale date will be within 30-120 days.  Even after having a foreclosure sale date, there may still be opporutnity to stop it based on several different reasons.

Even after final judgment or sale, sometimes it is sometimes possible to vacate a final judgment or file objections to the sale.  Remember, however, as a general rule, it is easier to prevent something than undo it.

Whatever part of the process you may be in, get advice from an attorney who has experience defending foreclosure cases and get advice on your specific case.

Divorce is all about PEACE

Divorce is All About PEACE

You’ve decided to get a divorce. It’s painful, stressful and can be overwhelming. Make the most out of your first consultation with your attorney by using this 5-point guide to prepare and organize your thoughts and to make sure you don’t forget anything.

P is for Parental Responsibility and Timesharing

If you have a minor child, this is the first area you want to think about. There is no such thing as “custody” or “visitation” in Florida. Instead, we speak in terms of parental responsibility and timesharing. Parental responsibility involves decisionmaking about the child (What school will the child attend? What medical treatment is okay?) and timesharing, which refers to actual physically spending time with the child. The main consideration here is: what is in the best interests of the child?

E is for Equitable Distribution

Equitable distribution refers to dividing up the assets and debts of the marriage. Only marital assets and debts will be divided. Marital assets and debts are typically those that are acquired during the marriage, regardless of who appears on title. The main consideration here is: when was the asset acquired or the debt incurred? If the answer is: “during the marriage,” then it will likely be divided and unless one of you has dissipated the assets (used marital property for your own non-marital purposes), then the distribution is usually 50/50.

A is for Alimony

Alimony refers to spousal support paid by one spouse to the other. The main consideration here is: does one of you have a need and does the other one have the ability to pay? Some things to look at when thinking about alimony are: the length of the marriage, standard of living, and ability to work by the spouse asking for support.

C is for Child Support

The child support amount is calculated based on the income of both parents and the number of children. In addition, the children’s health insurance and childcare costs factor in. The child support amount is calculated based on how much time the child spends with each parent. The main consideration here is: how much income the parents make and how many overnights each parent has?

E is for Everything Else

Anything else that has not already been discussed, should be included here.

In the end, divorce can be a traumatic experience for the entire family. Getting informed and knowing the process goes a long way to beginning the process of healing and bringing peace back to the home.


What is this “best interests” I keep hearing about?

If you are in the middle of a child custody dispute, you will be hearing the phrase “best interests of the minor child” quite often. The reason for this is because this is a requirement of the law. Section 61.13(2)(c), Florida Statutes states that the “court shall determine all matters relating to parenting and time-sharing of each minor child in accordance with the best interests of the child…”

While this seems pretty simple, figuring out what exactly is in the child’s best interests can be complicated, convoluted and lead to nasty child custody disputes. Which leads me to clarify one point: there is not such thing as “child custody” in Florida. Well, at least, that is not the language we use. In Florida, we speak in terms of “parental responsibility” and “time-sharing.”

If the parents cannot come to an agreement as to what is in the “best interests” of the minor child, the court will look at the circumstances and facts relating to a particular child and family and will also look at the following:
(1) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

Over the next few weeks, I will be writing articles focusing on these factors and breaking them down for you. Until then, please remember what is most important: the mental, emotional and physical well-being of your children.


To fight, or not to fight? That is the question

Many homeowners ask themselves whether it is worth fighting the bank in foreclosure.  My answer is, “ALWAYS!”

Why?  Because the burden is on the bank to prove they have the right to foreclose.  Why?   Because defending can give you options–from modifications to short sales.  Why?  Because we can negotiate “cash for keys.”  Why?  Because we identify possible fraud by the banks that could result in final judgment in your favor.  Why?  Because as long as you are the owner, it is your property and you are entitled to receive the benefits from it–whether it is the home you live in or it is rented to tenants.

During your consultation, ask us to discuss how we have won foreclosure cases over the last few years.  And while no two cases are alike, we can look at your case and discuss what we can do for you.