Process Service Fraud – An Abrubt Eviction by Wells Fargo Foreclosure Mill Ben-Ezra and Katz Narrowly Averted

An abrupt eviction, narrowly averted

STAFF PHOTO / THOMAS BENDER


A bank foreclosed on William Berta of Sarasota and bought his home at auction in December. The bank said it couldn’t locate Berta, who was surprised to get an eviction notice in January. He found an attorney, and he eventually got the house back.
Published: Monday, February 22, 2010 at 1:00 a.m.
Last Modified: Sunday, February 21, 2010 at 10:55 p.m.

SARASOTA COUNTYWilliam Berta could be among the most findable people in the world.

The 70-year-old has lived in his Sarasota home for decades. He runs a business on 12th Street, has a pilot’s license, collects Veterans Affairs benefits, and recently got a traffic ticket here.

His home has cars in the driveway, the water and power are on, and he says his two dogs bark at anyone who knocks on the door of the home he shares with his son.

Yet the bank foreclosing on his five-acre property told a judge that Berta had abandoned the home, could not be found and might even be dead.

That declaration allowed Wells Fargo Bank to take possession of Berta’s home in December without him ever knowing that a foreclosure case had been filed, and he had no chance to raise a defense.

“They didn’t want to find me,” Berta said. “They tried to use their knowledge of the law to steal my house.”

As foreclosures continue to overwhelm the court system, there is a growing concern that sloppy and careless work in foreclosure cases is making Berta’s experience a common one.

The kicker in Berta’s case: A process server had no trouble serving him with eviction papers after taking the deed to his property, right at the home the bank previously said he had abandoned.

Berta immediately called an attorney.

Sarasota attorney Martin Burzynski, whose firm now represents Berta, said his firm is seeing cases that he considers borderline fraud.”

Last week, the Florida Supreme Court approved new rules addressing the problems commonly seen in foreclosure cases, including the high number where property owners are not served with court papers.

Lenders are allowed to continue with a foreclosure as long as they advertise the case in a newspaper and present a sworn affidavit that they could not find the homeowner.

The new rules require lenders to tell judges more about what methods they used to attempt to locate and serve the property owner. The goal is to protect a homeowner’s property rights by helping the judge determine if the process server did not look hard enough.

The bank’s law firm, Ben-Ezra and Katz from Fort Lauderdale, say they did what they could to let Berta know the foreclosure case was filed, and they are not sure why Berta would say he was not contacted.

Marc Ben-Ezra said the firm will ask for a rehearing to show the judge all the efforts they made to find him, including multiple visits to his home and sending him notices to his home through the mail.

Ben-Ezra said Berta contacted a loan specialist at his office before making claims he was never contacted by the law firm. He said he hopes Berta will be able to stay in his home.

“Our client is interested in keeping Mr. Berta in the property, assuming he qualifies for one of the loss mitigation programs that the lender offers,” Ben-Ezra said.

Berta’s attorney, Betsy Young, said Berta came to her office, eviction notice in hand. “His face was white,” Young said. “He was in a state of shock.”

Berta knew he was missing his mortgage payments on a house he had helped build with his own hands. He was divorced in 2004, and decided that rather than sell it he would take a mortgage and buy out his wife’s share.

When the local housing market crashed, so did his income at Berta Iron Works, where he spent his life shaping iron into decorative curtain rods and staircases, a business closely tied to home construction.

Berta had called HOPE NOW, the new federal mortgage counseling agency, which told him they were working with his lender and there was no need to get legal representation.

“I was trying to fix it,” Berta said. “I thought this was the way.”

Once she learned Berta’s house had been sold, Young looked into the foreclosure case and found a lengthy list of problems.

The biggest was that the firm only tried to serve him once, at his home, at 3:30 p.m. on a Monday in June.

Three months later, they filed an affidavit that stated they could not determine Berta’s Social Security number (which would be on the original mortgage papers), marital status (a simple public records search shows his divorce) or whether he owned vehicles or boats (state records clearly show he owns two cars, a boat and a plane).

But based on that abandonment affidavit, a judge gave Wells Fargo a summary judgment against Berta. The quick case meant Ben-Ezra spent as little time and money as possible on a foreclosure case, as compared to when a homeowner puts up a vigorous legal fight.

Most notably, the affidavit allowed the firm to skip local rules that would have required them to meet with Berta, because the property is homesteaded.

The bank was the highest bidder at the foreclosure sale on Dec. 7.

At 6:30 p.m. on Jan. 5, Berta was served with the notice that his home was sold and he would be evicted.

Young filed a motion to set aside the sale, giving Berta his property back.

Circuit Judge Charles Roberts did that without a typical hearing, and also awarded Berta attorney’s fees. Now the case is reset to the beginning, and Berta has a chance to raise defenses to the foreclosure.

4closureFraud
www.4closureFraud.org

Comments
15 Responses to “Process Service Fraud – An Abrubt Eviction by Wells Fargo Foreclosure Mill Ben-Ezra and Katz Narrowly Averted”
  1. This not the first time that Wells Fargo Bank resorted to extortion, trickery, and unfair practices.

  2. Wayneho50 says:

    This lawfirm is really messed up and seems to be ripping people off and taking the easy route.

    I rent a condo since 1994, about 1 month ago a process server shows up with a name of a woman who used to live here in 1988. Most people in florida are not at the same location that long. Then he kept asking me where she was and i said i never heard the name so he left.

    I told him to find the owner of my unit or call property management to see if this person was a renter in the 80’s cause i know the owner and it is not this person.

    So now i get a package in the mail i am returning addressed to the same woman from this firm. What a bunch of lazy thieves that are not doing the work. They should have a skip tracer or someone else find this woman and not be wasting my time with documents from 1988..

    Law firm working off information 22 years old. Lots of NO brains there. If something is that old something else is wrong here. if she had missed payments or whatever wherever she lives then they should trace the current information . she could have been nothing here except a renter.

  3. Bob says:

    Sounds like the major process serving company, Pro Vest,I,hear rumors that they send servers to multiple addresses to run up the bill..Also they do the work for two major foreclosure firms and kickbacks are involved.

  4. Anti-Ben Ezra & Katz says:

    Unfortunately I know the firm Ben-Ezra & Katz aka BEND-OVER & Katz & can verify that they do as little as possible for homeowners while charging as much as possible for the homeowners who are able to reinstate their mortgages! Not only that they sit on the reinstatement offerS making it impossible to pay by your deadline so they can then charge more attorney fees & add them onto the next reinstatement offer! I know because we kept getting offers to reinstate late or on the day of the deadline to pay which went from approx. $1300 to reinstate & by the time they sat on the offers & played games the only offer we did get with 2 week notice & time to pay costs us approx. $5000. THAT A HUGE DIFFERENCE WHEN $1300 COULD HAVE REINSTATED OUR LOAN HAD WE RECEIVED THAT OFFER ! THEY SUCK !

  5. It’s no wonder the Supreme Court changed the rules about service by publication. I see this sort of thing way too often to think that the fraud is only borderline.

    I have a client who was served by publication even though he’s home all the time because he’s totally disabled. Another client got her Notice of Service in the mail, but despite her repeated requests, the bank’s attorney didn’t send her the Complaint until the day the Answer was due.

    One of the worst parts of Mr. Berta’s situation is that he was working with HOPE NOW to modify his mortgage and they told him not to bother getting legal representation. This story qualifies for the OUTRAGEOUS FORECLOSURE OF THE WEEK post.

  6. JiimmyJ says:

    I bet he threw the notices away. He didn’t pay his mortgage, I for one am sick and tire of everyone whining, while they pulled a couple hundred grand out and spent it. Then we have Obama bailing them out and wanting the higher income taxpayers to pay for it.

    How many months did he miss? 10-20-30. Whats he expect?

    • dormanmom says:

      Wait until you have to defend yourself in a court action and see how corrupt our system is. Just as you have rights, so does this man.

      Court procedures are very specific, the foreclosure mills and banks are acting as if the rules everyone else has to follow do not apply to them. Usually no one notices because so many people simply walk away.

      Hope and pray that if you ever have to face a judge, for whatever reason, you don’t get railroaded also.

  7. Diana Cessna says:

    The homeowner receives Veterans Benefits? We all should appreciate the sacrifices that him and other service men and women make for us. That is why there are additional benefits in regards to housing and mortgages that are available to Veterans. Unfortunately, I have seen too many Veterans that do not use these benefits because their “advisors” steer them into other options. A VA mortgage or the new HAP expansion should be the first things accessed to help any Veteran homeowner in distress. You can read more about that on my Active Rain blog.
    http://activerain.com/blogs/dcessna/archives/2010/02

  8. These stories should provoke rage and uproar for all….this is not just a problem for those who are in forecloure…it affects us all.
    Our courts–my beloved courts–have been hijacked by the jackbooted thugs of the banking industry.

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