Foreclosure Defense for Struggling Homeowners

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BankruptcyHard to believe that with the double digit increase in real estate values in Florida, many homeowners still find themselves underwater with their mortgages, but this is a fact.  Victims of overextended credit limits, overinflated home appraisals during the mortgage crisis, and rising taxes and forceplaced insurance, has caused many homeowners to simply not be able to come out from below the water.  In fact, many that entered into loan modifications during 2009 and 2014, may be about to default again on their loan modifications due to the increase in interest rates scheduled for the fifth year under the Making Home Affordable Program, or an increase in the required monthly escrow.

While foreclosures in Miami and Broward are at the lowest levels we have seen for years, we are experiencing a new wave of foreclosures from the above borrowers, that tried to make ends meet and meet their financial obligations but with rising taxes and insurance, or a loss of a job, or loved one, can no longer sustain their mortgage payments.  This leads to a brand new filing of a foreclosure against these homeowners, and often forgiven debt under the Making Home Affordable Plan is recalculated into the mortgage balance, sending some to be underwater again.

At the Law Offices of Jacqueline A. Salcines, P.A. our dedicated team of foreclosure defense attorney and consumers rights advocates fight shoulder to shoulder with these lenders to protect our clients rights and properties.  The aim is to stop foreclosure and the abuses of the mortgage industry by holding lenders accountable for their actions.  We practice:

  • Foreclosure Defense
  • Commercial and Residential Foreclosure
  • First and Second Mortgage loan settlement and forgiveness
  • Loan Settlement
  • Short Sales
  • Loan Modifications
  • Credit Card Debt and Settlement
  • Debt Collection Abuse
  • Unfair Collection Practices
  • HAMP and Internal Modifications

HELP FOR STRUGGLING HOMEOWNERS IN FLORIDA

Whether you find yourself in a current foreclosure, or whether your default of your mortgage is imminent and you wish to plan and strategize all options available before you default, one call can make the difference.

At the Law Offices of Jacqueline A. Salcines, P.A., attorney Jacqueline A. Salcines, has over 15 years experience in the mortgage and real estate law industry.  She is an accountant having practiced prior to becoming an attorney.  Having an exclusive and extensive background with accounting and business law, as well as mortgages, provides the cutting edge difference when settling the accounts with lenders.  “Knowing what a lender can and can not do makes all the difference in the standpoint of a negotiation”. Often lenders in foreclosures are bluffing that they have the note or that their assignments are valid and when pushed against the wall and taken to trial, cases get voluntary dismissals.  “This is what we hope for our clients.”

“At my firm, we do not practice delay tactics or the buying time technique that many attorneys do while charging their clients monthly. Rather, I personally sit with the client and explore their needs and desires, while running their financials to see what they qualify for.  Our foreclosure defense is foreclosure defense with a result in mind.  I will review the complaint, often audit the loan package to see what advantages we have to win at trial.  That is the strategy.  Not mere delay to then push a bankruptcy on the client.”  Says Jacqueline Salcines, Esq.

Call us today for a free foreclosure defense and strategizing session.  The first consult is always free of charge and can provide the know-how and options that perhaps many borrowers do not know are available to them.

The foreclosure crisis is on the rise again in South Florida.  However with the right team behind you, the foreclosure crisis can be averted.

TRUST  |   COMMITMENT  |  RESULTS

Jacqueline A. Salcines

Jacqueline A. Salcines

LAW OFFICES OF JACQUELINE A. SALCINES, P.A.

706 S. DIXIE HIGHWAY

SECOND FLOOR

CORAL GABLES, FLORIDA 33146

TEL.  305. 669.5280

EMAIL:  J.SALCINES@SALCINESLAW.COM

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HOW TO QUASH SERVICE ON A FORECLOSURE SUIT

House and lawOnce a lawsuit in foreclosure is filed, a defendant has 20 days to file an answer.  However, the service must be proper in order to be valid.  Florida Rules of Civil Procedure require a process server, and not the Plaintiff, to serve the Defendant.  Service must be performed by personally finding the defendant and handing them the foreclosure complaint. This can be done at either the residence, place of employment or any other place where the Defendant is found.  If at the residence, it does not need to be served on the named Defendant but can be served on anyone over the age of 16 that opens the door.

If the Defendant is married, the spouse must also be served, and can also accept service on behalf of the other spouse.

After three unsuccessful attempts at service, the Plaintiff can serve by publication. This typically means that the lawsuit notice is published in the Daily Business Review for three consecutive weeks, and then the defendant is considered served.  Often, however, the Defendant does not read this newspaper and therefore does not know that the 20 days has started.

If the above rules were not followed however, for example, someone under 16 accepted, or the notice was published without the proper three days attempt, then the service of process can be dissolved or “quashed” forcing the Plaintiff to reserve the defendant properly.

If you suspect that you have been served by publication, the best way thing to do is speak to an attorney in order to run your docket and advise if an Affidavit of Service and three attempts appears in the docket.  The clerk of court online site, for instance  the Miami Dade Clerk or Broward Clerk, both have online sites where the docket can be reviewed and service or publication verified.

Otherwise, speak to an attorney to assist and guide you.   The first consult is always free of charge.

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HOW TO ANSWER A FORECLOSURE COMPLAINT LAWSUIT

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???? Vol.5 ??????When served with a foreclosure lawsuit, a defendant has 20 calendar days to file their answer with the court and the bank’s attorney.  The 20 day time period starts the day that the defendant is served.  Service by a process server, or pseudo-sheriff is required, and the foreclosure can not merely be mailed or left on your door step.  The process server is only required to serve anyone over 16 that resides at the household, even if it is not the named defendant.  Often, family members of children accept service on the borrowers behalf and leave the papers lying around, which often leads to defendants being defaulted for not timely filing their answer.

Once served, the best thing to do is hire an attorney. Only by having an experienced and knowledgeable ally on your side, that can review the foreclosure and make sure that the bank through their attorney, has followed all of the rules of procedure in serving you and attaching all required documents to the complaint, can you be sure that your rights are 100 percent protected.

The first document filed with the court should be a motion to dismiss, assuming there are grounds for dismissal of the suit.  Often, defendants that appear pro se, file an “Answer” and tell the court that they are attempting to modify the loan or that they have no ability to pay it.  This tactic while great in serving to stop the 20 days and avoid a default, actually is not a great move on the part of the Defendant.  Certain defenses and procedural inaccuracies, such as jurisdiction and service, if not claimed on the first document filed with the court, are considered waived and can not be later brought up before the Judge.

What can be raised on a motion to dismiss:

  • Jurisdiction of the court – is the lawsuit filed in the proper courthouse, in the proper venue where the property is located?
  • Was the defendant properly served with a process server?  Was the recipient over 16 years of age?
  • Was the spouse served if married?
  • Bond – is the Plaintiff a Florida based corporation or authorized to do business in Florida? If no, then they can not file a lawsuit without posting a bond.
  • Acceleration Notice – did the lender send the correct acceleration notice to the borrower and attach it to the complaint?
  • Notice of Default – was the borrower sent the correct notice of default in written correspondence?
  • RESPA – were RESPA rules violated?
  • Is the Plaintiff the proper party to bring the lawsuit?  Is it the named lender in the mortgage documents? If not, are the proper assignments attached?
  • Are the assignments recorded?  Was the borrower placed on notice?
  • Did the lender attach the correct certifications as to the location and holder of the original note?
  • Did the banks attorney attach the note to the complaint?

This is only a sample of the many different issues that an attorney looks for when combing over a complaint in order to draft a proper motion.

Foreclosure defense by an attorney does not have to be expensive and is your best line of defense to protect yourself in order to save your home or short sale it in order to walk away from the balance.

The first consultation with me is free and can provide the much needed guidance in order to protect your rights and provide you the time you need to save your home and obtain the loss mitigation option that is right for you.

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ADDITIONAL FORECLOSURE PROTECTION EXPECTED FOR CONSUMERS BY CFPB

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Way Signs "Bailout - Collapse"In an announcement Thursday afternoon, the Consumer Financial Protection Bureau said it will engage in additional foreclosure protection to consumers. The announcement comes on the heals of a recorded $16 Billion record settlement by Bank of America for violations in failing to resolve its claims related to its toxic mortgages leading up to the financial crisis.

Among the proposed rules would be a requirement that servicers actively participate in extending additional loss mitigation options to its borrowers in crisis. Those targeted are consumers that brought their loans current during the mortgage crisis, either through a loss mitigation option or otherwise, but are still struggling.  Those who obtained permanent loan modifications and have made payments as required, but have suffered an unexpected death of a spouse, medical bills or otherwise, will be targeted for assistance.

Mortgage Heirs.  Equally as important, are the excluded class, that has struggled so hard to obtain loss mitigation options, after the death of the mortgagor, but has faced probate hurdles, with lenders excluding them since they did not sign the note or mortgage.  Mortgage heirs, or successors in interest of the properties left behind by mothers, fathers, deceased spouses, or property transferred through a family trust, or through death of a joint tenant, will be afforded additional protection.  The lenders will be required to work with them to identify and communicate about possible loss mitigation options available to ensure the heirs receive foreclosure protection.

Divorced spouses.  Property transferred through a divorce settlement, wherein one spouse wants to keep the house and is unable to due to the loss of income from the other spouse, will also be afforded protection under the proposed measures.

Additional safeguards are also proposed to ensure lenders work with borrowers once the loss mitigation applications are received. Included in such protections, which has been the center of much complaints over the years since the Making Home Affordable Program began are:

Loan Service Transfers during a pending loan modification.  Under the proposed plan, borrowers will need to be timely notified of any service transfer when the loss mitigation applications are in process or complete. If completed and approved, the new servicer would be required to evaluate it within 30 days of receipt.  If incomplete, other safeguards will be put in place.  For involuntary transfers to new servicers, the new servicer would have 15 days to evaluate it from transfer.

Bankrupt Borrowers.  Servicers will be required to provide early intervention notices to let borrowers know of their options prior to filing for bankruptcy.

And perhaps the greatest proposed measure:

Stalling a foreclosure during the pendency of a loan modification application. This seems to be the number one misconception for many borrowers, particularly the elderly, and non-native Americans, or Hispanics, who are under the false impression that applying for a modification will stop or stall the initiation of a foreclosure.  While measures and protections were already in place with prior CFPB regulations, lenders often failed to follow them.  The proposed CFPB measures will more strictly monitor this requirement to make sure lenders take adequate steps to work with borrowers so that wrongful foreclosures are not initiated, costing millions of dollars in attorneys fees, and costs, for wrongfully initiated foreclosures.

A full summary of the proposal can be found on the Consumer Financial Protection Bureau website.  The rules and disclosures are open for public comment for 90 days after publication in the Federal Register.

For additional information, call attorney Jacqueline A. Salcines, Esq.  We are well versed in all the Consumer Financial Protection Bureau rules and regulations as well as hold lenders accountable for their loss mitigation violations.  We work closely with consumers to make sure they are qualified for the type of loss mitigation program they desire,  and then work zealously to obtain those goals on behalf of the consumer client.

Call us today for a free consultation to see if you qualify for a loss mitigation program.

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ARE YOU REQUIRED TO MISS A MORTGAGE PAYMENT TO QUALIFY FOR A MODIFICATION OR SHORT SALE

DO I HAVE TO STOP PAYING MY MORTGAGE IN ORDER TO QUALIFY FOR A LOAN MODIFICATION OR SHORT SALE?…

This question comes up again and again during consultations with clients.  And the answer is always resoundingly… NO!  You are not required to miss a mortgage payment in order to qualify for HAMP, HAFA, or any loss mitigation or short sale program.  That said, however, the regulations governing the Making Home Affordable Payment require a homeowner to prove hardship.  Hardship requires proving the homeowner’s financial inability to pay.  The homeowner must be ready to outline their current hardship and explain why they are having trouble making the mortgage payment.  Whether it is a short-term or long-term problem, the mortgage company will need to understand the reasons why there is difficulty.  Examples are medical conditions, loss of a job, curtailment of income, loss of hours, death of a spouse or family member, age of parents requiring long term care.  The list goes on and on.

If the homeowner elects to keep paying the mortgage and is able to prove hardship in their RMA or request for modification application forms, then the mortgage can review despite the homeowner being current.  Often, however, certain investor and servicers of loans, make it mandatory that the borrower not be current on their mortgage. Some even require 90 days past due delinquencies. This can be communicated to the homeowner once the application is submitted and the request made to the mortgage lender.

There are certain lenders and certain types of loans that will not even consider a short sale or loan modification if the borrower is current. So once the loss mitigation request Is denied, the homeowner can make a determination whether it wants to move forward with the request, and must at that point, in order to appeal the decision, cease payments.

While an attorney can never counsel their client to stop making the payments, we are here as a go between with the homeowner client and the lender. Knowing the rules and the lender requirements, we are here to communicate the information to the client so that they can make an informed and educated decision, whether they wish to stop making payments or not.

Often, even with a missed payment, with careful planning and quick hiring of an attorney to present the loss mitigation application to the mortgage lender, we can avoid a foreclosure all together.  Often, lenders wait many months to file a foreclosure action and by that time, a loss mitigation option is already approved, avoiding the necessity of filing a foreclosure.

Speak to attorney Jacqueline Salcines, PA to provide sound legal advice for your mortgage questions.  The first consult is always free of charge.

TRUST  |    COMMITMENT   |  RESULTS

 
LAW OFFICES OF JACQUELINE A. SALCINES, PA
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL. 305.669.5280

 

 
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HOW TO STOP A FORECLOSURE AND AVOID A BANKRUPTCY

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Hands - Holding HouseYou have stopped paying your mortgage, have been served  with a foreclosure complaint, Lis Pendens, and don’t know what to do.

Although filing an Answer pro se (representing yourself on your own behalf) is better than not filing anything at all, since a reply is required 20 days from the date of service of you will be defaulted,  by filing an Answer you may waive your rights and defenses.

There are many “affirmative defenses” or objections to the complaint that can be filed on the homeowners behalf that, if done correctly, can get the entire lawsuit dismissed.  However, if something is filed and the defenses are not claimed from the beginning, then they may be waived.

The smartest strategy is to hire an attorney to assist you with the foreclosure defense.  By reviewing the complaint, lis pendens and the closing package, defenses are preserved, and the best result achieved.

Foreclosures are often times negotiated and once a settlement or other resolution is reached, it goes away. However, only a legal professional familiar with the complaint, note, mortgage and required legal attachments knows what to do on behalf of a homeowner.

Don’t go it alone.  Defending a foreclosure in court is serious and if done improperly can result in losing your home AND still owing the bank your balance of the mortgage.

At the Law Offices of Jacqueline Salcines, PA, we have over 14 years experience in real estate law, defending homeowners and obtaining the best possible outcome desired.  Whether you seek to keep your home and want to pursue a modification, or want to process a short sale, or perhaps even a loan settlement, let my team go to work for you.

We have a fully staffed Short Sale Department, Title Department, and loan modification/loss mitigation department to handle all of your real estate needs.

The first consultation is always free.

TRUST |  COMMITMENT  |  RESULTS

 

LAW OFFICES OF JACQUELINE A. SALCINES, P.A.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL  33146
TEL:  305-669-5280
 

 

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WHO IS ENTITLED TO THE SURPLUS AFTER A FORECLOSURE SALE?

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Law Offices of Jacqueline A. Salcines, P.A.

Law Offices of Jacqueline A. Salcines, P.A.

In a recent Third District Court of Appeal case, the higher court rules that a Miami-Dade couple was entitled to a $99,500.00 surplus that was left over after the foreclosure sale. The lower court, Judge Diane Ward, held that the bank was entitled to the surplus.  The homeowners had two mortgages, and the property was sold at auction on March 2013. The home was purchased at auction by a third party bidder who bid $184,000.00.  After paying off the mortgage, $99,500.00 remained.

The third party bidder then filed a Motion for Surplus Funds so that the surplus could be remitted to the first lender.  The homeowners also filed a Motion for the surplus.  Because the homeowners had filed for bankruptcy, the third party purchaser argued that they would be “unjustly enriched” a legal term that means that they are getting a benefit without paying anything for it.  The mortgage had been discharged in bankruptcy and a discharge of their debt obtained.  Judge Ward awarded the surplus of $99,500.00 to the third party purchaser.  The homeowners appealed.

The District Court of Appeals state in opinion that the law clearly showed that the property owner of record at the time of the sale is the one entitled to the surplus.    “Where the legislature has provided such a process, courts are not free to deviate from that process absent express authority.  (Quote from Judge Ed Scales on the Opinion ruling).

In order to claim the surplus, homeowners must file motions in a timely manner.  Thereafter, the motion must be heard by the presiding Judge in order to obtain an Order directing the clerk to issue the surplus.

At the Law Offices of Jacqueline A. Salcines, PA, we have extensive experience in seeking surplus funds for our clients.  We invite you to call and speak to attorney Jacqueline A. Salcines, Esq. today. The first consult is always free.

 

TRUST  |   COMMITMENT  |   RESULTS

 
LAW OFFICES OF JACQUELINE A. SALCINES
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL: (305)  669.5280
EMAIL: J.SALCINES@SALCINESLAW.COM
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Force Placed Insurance Causes many borrowers into Foreclosure

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Insurance - Home Icon on Multicolor Puzzle. Anytime a mortgage is taken out on a property, the borrower pledges the property as collateral for the loan.  As part of the mortgage terms, the borrower is then required to maintain property insurance including hazard, wind, and often times flood insurance, covering the property.  The amount of the coverage is usually determined by the amount of the loan or monies loaned by the lender.  If the property insurance is paid by the borrower annually, it is very important that the borrower keep the insurance current and not allow it to lapse. There have even been cases when the insurance was escrowed by the lender but perhaps a bill crossed in the mail or was lost, and the lender allows the insurance to lapse. A Notice of Intent to Cancel should never be ignored. This is a notice from the insurance company that the policy will be cancelled in a certain number of days.

So what happens if the insurance lapses (is not paid and cancelled)?  Well, pursuant to the terms of most mortgages, the bank now has authority, given to them by the borrower homeowner, to purchase their own insurance policy, called Force Placed Insurance, and to charge it to the borrower.  The bank can increase the limits of the coverage and ask for any endorsements or other items on the policy that may result in the cost of the policy rising to two and three times the original amount.  The borrower then will receive a bill asking them to pay the amount in full or, if escrowed, may increase the monthly amount of the mortgage payment by the monthly premium (yearly premium divided by 12).

When homeowners receive this, it is too late and often they can not cancel the force placed and must wait a year. However, they also can not afford the payment nor the lump sum required to be paid by the mortgage company, and fall into default on their mortgage.

This has become one of the main reasons that homeowners are now falling into default of their mortgages and requesting loan modifications and/or short sales.  The bank makes it difficult to work with them when they demand payment in full of sums due, and wont negotiate any terms when it comes to the insurance.  However, there are many ways around it.

In my firm, we recently had a client obtain a proposal from their prior insurance agent, pay the premium, then showed the bank that the premium was paid.  Once this was done, the lender agreed to cancel the forced placed, but there remained the issue of the past premiums.  So this in turn had to be negotiated as well, and a portion may be forgiven, erased or a payment plan can be negotiated.

It is very important to enlist the services of an attorney to fight for your rights when force placed insurance or escrows cause you to become delinquent in your mortgage.

Often times, homeowners are not equipped to take this battle all the way to upper management, or perhaps can not determine when they are being ripped off by the lender.

If is imperative that the homeowner ask for the policy. Request a copy of the invoice and dec sheet or document evidencing the coverage limits, etc.

In fact, there have been a wave of lawsuits against certain lenders who were determined by the court to have worked together with the insurance companies, such as Citizens Property Insurance, and were receiving kickbacks from the insurance companies for putting the force placed insurance in place. Wells Fargo is one of those lenders being investigated for force placed insurance fraud.

If you are having difficulty paying your mortgage due to insurance escrows or insurance amounts being astronomically high, contact us today.

We can assist you in attempts to lower the amounts, investigate the force placed policies, and cancel them so you will not lose your home.

Call us today for a free consultation.

TRUST  |   COMMITMENT  |  RESULTS

 
 
 
LAW OFFICES OF JACQUELINE A. SALCINES, PA
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
OR BY EMAIL:  J.SALCINES@SALCINESLAW.COM
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DEFICIENCY JUDGMENT LIMITATION PERIOD

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House and lawRecent, significant changes in Florida’s Foreclosure law have shortened the time period in which a lender can collect a deficiency, or balance after a mortgage foreclosure or short sale.  The statute of limitations period for a lender seeking a deficiency judgment on a note secured by a mortgage on a residential property, is now one year, instead of five, for a  deficiency action started after July 1, 2013.

The bill also limits the amount that the lender can recover.  In the case of an owner-occupied residential dwelling, the recoverable portion is limited to the difference between the judgment amount (in a short sale, the outstanding debt) and the fair market value of the property at the time of sale.  The new statute also limits attorneys fees and costs the lender can charge when collecting the deficiencies.  See the full amended statute §702.06  http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0702/Sections/0702.06.html

Other recourse may be available to the borrower who is facing the collection of a deficiency judgment. Often times, the debt can be negotiated and satisfied, without filing for bankruptcy.

Call us today to assess your case and see if we can settle your deficiency or find a way around the payment of it.

TRUST  |   COMMITMENT  |  RESULTS

 
Law Offices of Jacqueline A. Salcines, PA
706 S. Dixie Highway
Second Floor
Coral Gables, Fl 33146
tel.  305 | 669 | 5280
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THE NEW STREAMLINED SHORT SALE – HUD ANNOUNCES NEW SHORT SALE REQUIREMENTS

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short-sale-contractEffective October 1, 2013, HUD announced new and favorable changes to their FHA short sale requirements for homeowners seeking to short sale their homes.

This new Streamlined Short Sale, may no longer require the borrowers seeking a short sale to submit financial information or prove a financial hardship.

The following properties will be eligible:

  • Principal Residence
  • Second homes
  • Investment Properties
  • Military Service Members

The transaction must be an Arm’s Length Transaction wherein all the parties to the transaction, including buyer, seller and realtor, are required to sign an Arm’s Length Affidavit providing under penalties of perjury that they are not related as follows:

  1. Seller can not list the property with or sell to anyone with whom they have a close business relationship;
  2. The seller and buyer can not be related either by family, blood or business.

Any violation of this is considered a federal offense and violation of federal law.

Before closing, any and all liens and judgments against the seller must be released.  And this we are seeing ever so often wherein the short sale lender quickly and without thought, stops a short sale because the borrower has “judgments” or liens against them.  A name examination by a title agent as myself can decipher whether the liens or judgments do in fact belong to the homeowner. “Often times, it is a common name and by merely having the borrower seller sign a Non-Identify Affidavit, and submit it to the lender, that will not halt the short sale  negotiation and process. ” Jacqueline A. Salcines, Esq.

Servicers must now use a Deficit Income Test or (DIT) to determine the borrower’s financial hardship.

If qualified for a streamlined short sale, the borrower may not have to produce any financial documents or prove a financial hardship.

The appraisal or BPO is also done within 10 days and prepared for review quickly so that this too does not stall the process or approval

While the borrowers may be asked to make a cash contribution at closing, often times if the property is not the homestead of the borrower, cash Incentives to homeowners by lenders are being given.

Lastly, the FHA short sale addendum, where all parties agree that the property is an arms length transaction and there are no hidden terms or conditions in the short sale, must be signed and dated by all the parties at closing or when instructed by the lender.

If the borrower qualifies, cash incentives are offered by participating lenders including:

  • Bank of America
  • Chase
  • Ocwen
  • Wells Fargo

For negotiators of short sales, this means short waiting times, short document collection and quick approval times.

For the homeowner, this is great news in that the short sales will be approved quicker and the incentives may be given.

At the Law Offices of Jacqueline A. Salcines, PA we can qualify you, free of charge for the streamlined short sale.

We work with many investors to find qualified buyers for your home and get the short sale approved at the best price possible.

Call us today for a free consultation.  Our reviews speak for themselves.

TRUST  |   COMMITMENT  | RESULTS

LAW OFFICES OF JACQUELINE A. SALCINES, P.A.
706 S. DIXIE HIGHWAY
SECOND FLOOR
CORAL GABLES, FL 33146
TEL>  305 | 669 | 5280
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