An abrupt eviction, narrowly averted
STAFF PHOTO / THOMAS BENDER
Last Modified: Sunday, February 21, 2010 at 10:55 p.m.
SARASOTA COUNTY – William 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.