I was recently honored by my peers with the very coveted and distinguished Martindale-Hubbell AV Preeminent Rating. I thank all my colleagues for their trust and confidence.
Oftentimes, whether by necessity, anger or retaliation, couples who are about to go through a divorce, or are in the middle of one, make certain unilateral decisions that could bring about serious consequences, not to mention anger the judge. The best advice I could give anyone who is about to go through, or is in the middle of a divorce, is to maintain the status quo.
The term “status quo” is Latin for “the way things were before.” This phrase has many contemporary uses and application in certain aeas of law, including family or matrimonial law. Family judges prefer, even demand, that the parties “maintain the status quo,” which is another way of saying “don’t make unilateral decisions that could affect or change any of the things that are being litigated in the divorce or family proceeding, until the judge decides.” From marital property and assets, to decisions concerning the children, to child support, family judges expect for parties going through a divorce to behave and not do anything that could affect “the way things were before” the divorce was filed.
Some examples of how a parent or spouse going through a divorce could affect or change the status quo are:
- selling furniture or other assets that were part of the marital estate;
- withdrawing most or all of the funds from a joint bank account;
- moving to another city (even state) and, as a result, causing the child(ren) to be further away from the other parent or to have to change school;
- applying for a passport for the child(ren) without the other parent’s consent;
- traveling with the child(ren) outside of the state or country without first informing the other parent and providing an itinerary;
- not allowing the other parent to spend time with the child(ren);
- not allowing the other parent to speak with the child(ren) when it is not the other parent’s time with the child(ren); etc.
All these are decisions that many parents make unilaterally for one reason or another. However, these types of decisions are not only likely to get you in trouble with the judge, but they are also likely to cost you financially, including being sanctioned.
The same is true with child support. Eventhough child support may not have yet been determined because it is too early in the case, it behooves the parent who moves out of the house to pay the other parent some type of monthly child support. This is part of maintaining the status quo because, after all, both parents still have the obligation to financially support their children.
In the end, common sense is the best policy. If you are tempted to do something that you would not like the other spouse to do to you, or that you think could upset the judge, DON’T DO IT!! But, if you must make a decision that could affect the status quo, you’re best served, and protected, by having your attorney negotiate with your spouse’s lawyer, and obtain their approval, or by filing a motion and asking the judge for permission.
The real estate debacle of 2008 led to the discovery of a great deal of questionable lending practices by some of the biggest banks and lenders in the U.S. One of the most common of those practices was the approval of hundreds of thousands of mortgages to borrowers whom the banks knew did not qualify for a mortgage. This was often accomplished because the bank/lender – oftentimes in collusion with the borrowers – would submit falsified documents to their own underwriters in order to get the mortgage/loan approved. But that was just the tip of the iceberg.
By 2010, as many homeowners became unable to continue paying their mortgage, and the banks/lenders began to foreclose, more disturbing discoveries about how far some of these institutions were willing to go began to emerge.
As foreclosure litigation sored in some parts of the country, homeowners’ attorneys began to fight back. Suddenly, banks found themselves having to defend against very serious allegations, including violations of state and federal statutes, such as the Real Estate Settlement Procedures Act (“RESPA”), and a myriad of other claims.
Since some banks/lenders already had experience falsifying documents, it is no surprise that they resorted to their old ways during the foreclosure litigation process. As a result, one of the most corrupt practices used by some banks/lenders in foreclosure litigation, known as “robo-signing,” reared its ugly head.
“Robo-signing” was a practice (assuming it has been completely eradicated) used by certain banks – in some instances in collusion with their own lawyers – in which legal documents filed in foreclosure cases were being signed (sometimes a stamp signature was used) in mass quantities by people who had no knowledge of what they were signing or the truth of the assertions contained in these documents, which, by law, the signers were required to have. The term “robo-signing” essentially describes the robotic process of mass production of false and forged execution of mortgage assignments, satisfactions, affidavits, and other legal documents related to mortgage foreclosures, created by persons without knowledge of the facts being attested to. It also included accusations of notary fraud, wherein the notaries would notarize the robo-signers’ signatures without witnessing the person sign, which is also a legal requirement.
Shortly thereafter, these and other corrupt practices resulted in lawsuits brought against some major banks, such as Bank of America and others, by several states and federal agencies. In addition to the imposition of monetary fines, and financial assistance to borrowers, these lawsuits sought to force the banks to tighten their lending and mortgage servicing practices. The lawsuits also sought to compel the banks/lenders to act expeditiously and in good faith when assisting borrowers with loan modifications, short sales and other relief programs. Contemporaneously enacted legislation also imposed the similar obligations on banks and lenders.
Ultimately, these lawsuits were settled. The settlements, for the most part, obligated these institutions to revamp their practices, assist borrowers, and do it all efficiently, expeditiously and in good faith. One of the intended goals of these settlements was to allow the homeowners to get a fair shot at saving their homes by forcing the banks to adopt fair procedures to assist homeowners.
Prior to these settlements, for instance, homeowners complained of dilatory tactics by the banks in the processing of loan modifications and short sales requests. Borrowers complained that banks would often ask them to submit the same documents over and over again; or that the banks would constantly change the person assigned to assist them, which often led the new person wasting valuable time learning the case or, again, asking for the same documents the borrowers had previously submitted.
On many occasions these delays had devastating consequences because many borrowers lost their homes as a result of the bank not completing the loan modification or short sale process in time to stop the sale.
Which brings us to today!
By now, one would assume that after being accused of some of the most egregious lending and servicing practices in U.S. history; after being fined millions of dollars; and being held accountable for deliberate and corrupt conduct, designed to tighten the stranglehold on the American homeowner, these banks and lenders would have learned their lesson. Well, that would be a wrong assumption.
Today, despite being under statutory and court-ordered obligations to act expeditiously and in good faith in connection with borrowers’ requests for assistance, especially in loan modification and short sale negotiations, some of these financial institutions continue to engage in a great deal of, either: a) bad faith, or b) plain ineptitude – neither if which is tolerated, or even allowed, by law.
Case in point is the type of shenanigans that go on in the foreclosure courts of Miami-Dade County, Florida.
From the start, it must be acknowledged that Miami-Dade County is one of the Florida counties with the highest number of filed foreclosure cases. The courts are inundated with open foreclosure files, and there are very few judges to handle these cases. Moreover, the pressure on judges to close foreclosure cases (which generally happens after judgment and sale of the property takes place) is immense. However, none of this relieves the banks/lenders, or their attorneys, from abiding by the requirements to act in good faith in these cases.
The best example that comes to mind, and the only one to be discussed here, since we could write a book about all the many others, is what we call the “right hand-left hand syndrome.” (Of course, this may be too generous a labeling, since the conduct we are about to describe could also be flat-out bad faith, intentional, nose-thumbing by the banks).
The “right hand-left hand syndrome” essentially describes the proverbial cliche about the right hand not knowing what the left hand is doing. This is evidenced on a daily basis in the foreclosure courts of Miami-Dade County in situations where borrowers, often through their lawyers, seek to cancel foreclosure sales because they have been working directly with the banks/lenders on loan modifications or short sales.
In these cases, the borrower’s attorney goes before the judge – of course, the bank’s attorney is usually standing there as well – and asks that the impending foreclosure sale be cancelled because the loan modification or short sale process is almost completed. In other words, if approved, the borrower may either: a) be able to save the home, or b) walk away from the foreclosure without any additional financial responsibility against him or her.
Therefore, the borrower’s attorney explains to the judge that the bank/lender has confirmed receipt of all the necessary documents to make a decision, and that all that remains is the final decision from the underwriter approving or denying the request. Hence, a short cancellation of the sale is required in order to allow the process to be completed. After all, what’s the harm? Even the bank is in agreement, since, presumably, they are diligently working on the decision. (Or, are they?).
So far so good, right?…you would think!?! Until the judge turns to the bank’s attorney and asks for his or her position. To which the lawyer astonishingly replies to have no idea what the borrower’s attorney is talking about, and that he/she has not received any notification from the bank (their own client!!) to confirm what the borrower’s attorney is describing. Then, in true bad faith form, rather than having come prepared to court by checking with their client about the status of the process, or agreeing to the sale cancellation so that the pending process can be completed, the bank’s attorney OBJECTS to the cancellation of the sale!!
Oftentimes, this is the end of the road for these homeowners. After months of invested time, money, energy, and every drop of hope to save their homes, with a single phrase from the bank’s attorney – “WE OBJECT” – the home is sold and the homeowner is on the streets.
Whether this persistent conduct by the banks/lenders and their lawyers is legally actionable remains to be seen. Most of the time homeowners can no longer continue to pay lawyers to go after these banks. However, it is definitely worth looking into whether these actions can lead to redress for the hundreds of thousands that continue to be victimized by the banks’ disregard for their legal obligations.