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September 2, 2010 |
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| November 27, 2007 |
By: Billy Shields |
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here is a good chance more than 200 families facing foreclosure may get to stay in their homes for Christmas, thanks to a Miami-Dade Circuit Court clerical error and the vigilance of two lawyers.
Administrative Judge Stuart M. Simons signed an order Nov. 14 canceling all foreclosure sales scheduled that day and Nov. 15, and reset them four to six weeks later.
That meant 203 homes set for sale over those two days were given a later sales date, according to the clerk of the courts office.
Under state law, the public must be notified of scheduled foreclosure sales once a week for two consecutive weeks in a general-circulation newspaper before sale. A second notice must be published at least five business days before the sale, excluding legal holidays.
The error occurred when the clerk’s office inadvertently counted Nov. 12, the Veterans Day holiday, as a business day when it scheduled the second notice.
“Somehow they just didn’t count the days right,” Judge Simons said of the clerk’s office. “We didn’t conduct the sales because the clerk had not allowed enough time.”
Miami solo practitioner Scott R. Jay and Kenneth M. Jones of Moody Jones Montefusco Ingino & Morehead in Fort Lauderdale were scheduled to defend a partition suit Nov. 14 involving a vacant 75-acre plot of land south of Homestead.
They represented a group of people who owned a 45 percent stake in the land and wanted to keep it.
Majority stakeholder Calmon B. Rosenbaum was forcing the sale because he couldn’t agree with his co-owners on what to do with it. The minority owners wanted to keep it intact for use as a wetland preserve, Jay said.
Jay and Jones were discussing the notice of sale in their case, which falls under the same notice laws, and Jones said, “You know, something doesn’t sound right with the dates,” Jay said.
They remembered the Veterans Day holiday and asked for an emergency hearing. Miami-Dade Circuit Judge Maria Espinosa Dennis reset the Nov. 14 sale for Dec. 19.
After the attorneys notified the clerk’s office of the error, Simons reset the week’s foreclosure sales to new dates.
“We had no idea that by us pointing out the timing problem we saw in our case that this was going to result in the cancellation of a whole calendar of foreclosures,” Jones said, who normally represents lenders in foreclosure matters. “We were trying to help our clients in one particular case.”
Jay and Jones represented Herbert Buxbaum and other heirs who owned a stake in the south Miami-Dade land through a 1991 trust agreement.
Many of the homes facing foreclosure sales are now scheduled for sale during the week before Christmas. But residents should be able to stay in place through the holiday because state law gives owners up to 10 days after foreclosure sales to vacate the premises.
Simons said it is unclear how the problem started and who caused it. But he noted the court fixed it. He also said he doesn’t remember confusion over notice dates occurring before.
Foreclosures usually involve a coterie of debt collection attorneys who represent groups of lenders trying to repossess a home owned by someone who can’t make the mortgage payments.
Homeowners usually are not represented by lawyers.
Consequently, the mistake likely would have gone unnoticed were it not for the two lawyers with the partition case.
The mistake wasn’t holiday cheer for everyone. Clerical errors can cost lenders thousands of dollars per sale, according to Jeffrey C. Roth, a Coral Gables attorney with Roth & Scholl who represented some of the lenders scheduled to hold foreclosure sales on the canceled dates.
“When it happens, it causes the banks to lose interest and other expenses,” he said. “There’s the issue of the lender getting further in the hole while they’re waiting to complete the sale process and secure the property so they can recoup their losses.”
A single $200,000 mortgage foreclosure pushed back five weeks would cost a lender up to $6,000 in interest, taxes and insurance, he estimated.
The holiday season comes in the midst of a meltdown in South Florida’s housing market.
More than 20,000 Miami-Dade foreclosure cases were filed this year through October compared with fewer than 10,000 all of last year, according to Daily Business Review data.
On the flip side, home sales sharply declined to little more than 29,000 through August compared with 68,578 in 2005, according to figures produced by Michael Y. Cannon, executive director of Integra Realty Resources, a Miami real estate analysis group.
While the canceled foreclosure sales cost some lenders money, they came as a welcome reprieve for those trying to hang on financially.
For an owner fending off a foreclosure, “it buys him probably two months,” Jones said. “People who were looking at being out Thanksgiving and Christmas aren’t going to be out.
“They’ll have a right to stay in their place.”
Billy Shields can be reached at bshields@alm.com or at (305) 347-6649.
Scott Jay photo by A.M. Holt
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