South Florida Homeowner Victimized By Foreclosure Rescue Operator

A suburban Miami woman who was victimized by a foreclosure rescue operator is featured today in a story published by Reuters and appearing in the San Diego Union Tribune. Reportedly, she was solicited in June by a "door to door foreclosure rescue operator" who offered her financial help on an $89,000 mortgage on her home. According to the article:

• Nine months later, her $89,000 mortgage has ballooned into a $234,000 loan, her monthly payments have doubled and she faces foreclosure on a house she no longer owns.

For the rest of the story, see U.S. sub-prime crisis exposes mortgage scams.

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Editor's Note:

Hopefully, an experienced, competent South Florida real estate attorney (someone who also knows his/her away around a courtroom and knows how to make legal arguments in front of a judge and jury) will come forward and help the victimized homeowner in this story. Such an attorney will be aware of the fact that just because she signed away her home, it doesn't mean she can't get it back.

Quoting from Guest v. Claycomb, 932 So. 2d 567 (Fla. App. Ct. 5th Dist. 2006), which, in turn, quotes from the Florida Supreme Court decision in Williams v. Grogan, 100 So.2d 407, 410 (Fla. 1958), a Florida appeals court stated:

• "The rule is well established in Florida and elsewhere to the effect that when a person acquires title to property through the influence of a confidential relationship or otherwise obtains an advantage which he should not in good conscience be permitted to retain, a court of equity will prevent the abuse of the confidence and grant relief on the broad principle that one should not be permitted to be unjustly enriched under such circumstances at the expense of another." (quoting from Williams v. Grogan, 100 So.2d 407, 410 (Fla. 1958))

• "The Court proceeded to explain that the court of equity will grant relief in such instances by imposing a constructive trust "which is created by operation of law" and "is not within the statute of frauds and may be proved by parol evidence." Id."

Further, if the financially strapped homeowner who signs away their home never relinquishes possession of the property, Florida law (and the law of many other states as well) is that actual possession of the property serves as notice to subsequent purchasers and encumbrancers of all rights and equities that the person in possession may have, in which case, the woman's ownership rights to her home, as adjudicated by a court, should be superior to the rights of any subsequent purchaser or (foreclosing) mortgagee. Having constructive notice of the woman's occupancy will eliminate any entitlement to claim the status of "bonafide purchaser".

The Florida Supreme Court, in Florida Land Holding Corp. v. McMillen, 135 Fla. 431, 186 So. 188 (Fla. 1938) stated the following:

"This Court had before it a similar set of facts in the case of Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143 So. 761, when this Court said:

• "Actual possession is constructive notice to all the world or anyone having knowledge of said possession, of whatever rights the occupants have in the land. Such possession when open, visible and exclusive, will put upon inquiry those acquiring any title to or a lien upon the land so occupied to ascertain the nature of the rights the occupants really have in the premises. Carolina Portland Cement Company v. Roper, 68 Fla. 299, 67 So. 115; Tate v. Pensacola G.L. & Dev. Company, 37 Fla. 439, 20 So. 543; McAdams v. Wachab, 45, Fla. 482, 33 So. 702. This court also specifically held in the case of Crozier, et al., v. Ange, 85 Fla. 120, 95 So. 426, that 'where at the time property is mortgaged it is actually occupied by others than the mortgagor, the mortgagee is thereby put upon notice to inquire as to the rights of the occupants.' 19 R.C.L. 421, Sections 201 and 202.

One final point on this case. If a Florida attorney takes on a case like this, and would like the possibility of obtaining a court ordered attorney fee award, he/she may have to assert claims of violations of Federal or Florida consumer protection laws (which entitles an attorney representing a prevailing plaintiff to a fee award to be imposed upon the accused fraudster), in addition to asserting claims of fraud, constructive trust, or any other equitable claims that may be applicable. See my prior post, Voiding A Title Transfer In A Foreclosure Rescue Transaction, which discussed a Nebraska case where the attorney for a dozen victims of a foreclosure rescue operator was granted a $378,000 fee award (imposed on the foreclosure rescue operator) for successfully asserting violations of the Nebraska Consumer Protection Act (in addition to fraud and conspiracy), and which involved the application of a contingency fee risk multiplier in calculating the fee award, which is allowed in Florida on state law claims. The case was Eicher v. Mid America Financial Investment Corp., 270 Neb. 370, 702 N.W.2d 792 (2005).

With regard to the application of contingency fee risk multipliers in Florida, see generally, Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999), which discusses Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), where the Florida Supreme Court discusses what the contingency fee risk multiplier is based on and how it is calculated and applied.

While these cases may be difficult to make (which is why you need a sharp attorney), those having or creating the impression that nothing can be done for the woman featured in the article are simply uninformed. equitable mortgage zebra