It’s been said that a wise man should never argue with a fool because the listeners may confuse who’s who.
Well, I’ll argue you with you anyway. Let the listeners make their own decisions.
**A: In a judicial foreclosure, the mortgagee requests a court-supervised sale of the property. Trustee sales are conducted by a sheriff, lawyer or clerk of the court acting as Trustee.
So there really is a Foreclosure Trustee.
*AND*
Gene, I suggest reviewing the 2001 Florida Statutes Title XL Chapter 702. Foreclosure of Mortgages, Agreements for Deeds, And Statuatory Liens for further information.
Since you had used the ridiculous phrase “Foreclosure Trustee” earlier, I made a point of re-reading FL foreclosure law before I posted, just in case there really was some sort of cockamamy peculiarity unique to only FL. May I suggest that you do the same now. There is no phrase “Foreclosure Trustee” in FL law. There is no implication of such an animal in FL law. The phrase is pure vaporware.
The sale is *not* conducted by a “sheriff, lawyer or clerk of court acting as Trustee.” The sale is performed by the mortgage holder or their agent, such as a professional auctioneer, after judicial permission is given. The “sheriff, lawyer or clerk of the court” have absolutely nothing to do with the sale. While it is accurate that most lending institutions employ a lawyer to interface with the court, their lawyer is out of the picture, other than giving typical lawyerly advice and preparing documents, during the sale. There is no “trustee sales” because there is no trustee.
Since I use the sheriff to serve papers during one step of the eviction process in NH, does that make him the Eviction Trustee? Or, is my lawyer, perhaps, the Eviction Trustee?
No, Virginia, there really is *NO* Foreclosure Trustee. Pure vaporware.
**A: the landlord has already breached the lease because it was agreed that there would be quite (sic) enjoyment of the premises etc. Due to the foreclosure action and the later sale of the property, the lease has been breached by the landlord.
What absolute hogwash. At least you’re not confusing the theory of “quiet enjoyment” with anything to do with noise. But, you’re still without a clue as to what the term means. To quote a recent NH Supreme Court decision: “The right to or covenant of quiet enjoyment is a common law doctrine that "obligates the landlord to refrain from interferences with the tenant’’s possession during the tenancy." Echo Consulting Services v. North Conway Bank, 140 N.H. 566, 568 (1995).” I’m sure there’s a similar opinion in most other states. In what way is the original poster being *currently* prohibited from possession?
None. And that’s the point. While there is a legal process afoot that may sometime in the future (if ever) have an impact, there is *nothing* currently preventing the tenant from using the property. Therefore, there is *currently* no interference with the covenant of “quiet enjoyment.” Therefore, there is no *current* breach of lease. Therefore, the tenant *deserves* to be evicted if he does not pay the rent to the landlord.
QUOTE: Well, time has gone on and the mortgage company has no way of knowing what deals the original borrower may have made. A common practice in FL is the “lease purchase” whereby a “tenant” is not just renting a property but is, slowly, actually buying the property.
**A: so what, what does this have to do with foreclosure of the property? The lender has a right to foreclose no matter what kind of agreement the mortgagor entered into with third parties.
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The very smart lawyers employed by the mortgage company, to cover all possible claims of title for the property, have served you in a “John Doe” capacity in case you have any claims to assert. If you are not actually buying the property, the summons, ultimately, will not effect you.
**A: true.
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Geeze, talk about stupid. You answer your first question by posting the next paragraph and agreeing with it.
**A: there is a way to file a counterclaim to the eviction and stall the eviction the process if the rent was paid to a separate trust account , escrow, Court account or the lender's legal counsel to mitigate damages. I have done this on numerous occasions for tenant clients. In all cases, the Court agreed that the tenant did not have to pay rent to the landlord as long as the rent was paid and accouinted for and credit was given to the landlord.
First off, I post using my real name. My credentials are public. Do an Internet search using my name as the key words. You will discover that I’ve been a reference source for newspapers around the country: Los Angeles, Oakland, Kansas City, Chicago, Philadelphia, Atlanta, and on and on. You have posted anonymously. No one really knows what your credentials are. You claim to have “tenant clients.” But, for some reason, I really don’t think you’re a lawyer. Your knowledge of the law is the first hint. If your “tenant clients” have given you any money, then you’re liable to be a defendant in a lawsuit for practicing without a license. Considering the quality of your *legal advice* in this matter, you’ll lose ignominiously.
If you’re serious, come out of hiding.
Read the FL law you mentioned. During a foreclosure there is no established “Court account (sic)” available. Given that we have no way of knowing if the foreclosure will ever happen, no eviction court judge will accept the theory of rent being paid to “a separate trust account, [or] escrow.” When this gets to court, the landlord will have no obligation to accept the past due rent and the tenant will be evicted regardless of what the tenant may have wanted at the start. *IF* the landlord is a really nice guy, he *may* accept the past due rent plus all legal fees incurred up to that point. Nice going, Ace. You just advised the tenant to incur many hundreds more of wasted money.
Your statement of “the Court agreed that the tenant did not have to pay rent to the landlord as long as the rent was paid and accouinted (sic) for and credit was given to the landlord” tells me you’ve never been there. If the landlord has done nothing wrong (see above - there is no *current* breach of lease), then the landlord will *never* be required to lose money. The tenant will *always* be required to pay for the landlord’s costs up to that moment of the legal proceedings. And, in most instances, the landlord has to willingly agree to keep the tenant - some may not.
No, the most proper advice is to pay the rent promptly to the landlord and insure a paper trail.
**A: it does not matter what the landlord is doing with the money because it is not getting to the lender. That's the point here.
Ignoring your logical confusion, the issue of what happens to the rent money is of no concern to the renter. Perhaps, the landlord is in the process of selling the property. Knowing that there’ll be a sizable cash out, he may have chosen to eliminate mortgage payments simply to accelerate his current cash flow. In this instance, the foreclosure will never happen. OoPs! Too bad for a tenant “withholding” the rent. Or, the owner may have decided to accumulate cash to make another property purchase. The new property plus the old may allow him to make everything “square” in a few months. OoPs! Too bad for a tenant “withholding” the rent. Or, maybe the landlord had invested in Enron and had to cover a margin call. Since his other stocks will be sold by year’s end to cover the capital loss, he’ll make all payments at that time. OoPs! Too bad for a tenant “withholding” the rent. No, the real “point here” is that the tenant has no way of knowing what’s really going on. Therefore, he should stay out of it. Taking sides will always cause grief. The lender is big enough to take care of themselves. The renter doesn’t need to help out.
Since the 1st Amendment still exists, I have no problems with you saying:
**A: read my responses and you will see that the advice is not bad at all.
But, I’ll still stand by my first sentence:
By my way of thinking, you’re getting some bad advice.
Gene