“In this disaster, there is a definite path to prevent the loss of families’ homes, that path is to fight, to force the Plaintiffs to prove if they have any rights at all, and, wherever possible, to prevent them from taking the homes of our clients.”
Responding to Disaster, A Contemporary Approach to Foreclosure Defense
By James ‘Randy’ Ackley
The consequences of a family losing their home, it goes without saying, are horrendous. Helping people who have lost their homes is one of the most rewarding, yet heartbreaking, vocations a person can experience. I have been privileged to have had the opportunity to help families left homeless by both natural and human caused disasters around the world. From Hurricanes, like Andrew and Katrina and tornados and floods, to armed conflict in Kosovo, economic collapse in Bulgaria, the Indian Ocean tsunami in South Asia and earthquakes in Haiti and Japan.
One of the heartbreaking aspects of the work in those disasters, an aspect that accompanied the tremendous feeling of accomplishment on seeing the benefits of the work, was the subtle feeling of helplessness in the face of such overwhelming natural and human caused forces. While we were empowered to assist families and communities as they tried to respond to and recover from the loss of their loved ones, homes and infrastructure, we were always seeking ways to mitigate the impact of the inevitable disasters, but, we were almost always arriving after the event, facing the damage and other consequences of the disasters. Too late to save the homes and sometimes, the lives lost in the disasters.
I first started volunteering for the American Red Cross, Greater Miami Chapter, in 1988. I first learned damage assessment and mass care. (They offer the training free and welcome volunteers.) I was a young lawyer and the opportunity to volunteer seemed like a useful way to spend my free time. In 1990 I assisted with my first major disaster response, the fire at the Fontana Hotel, a residential hotel in Miami Beach.
The experience of helping people in such obvious and open ways was among the most rewarding of my life. By 1992, I was a member of the Board of Directors of the Palm Beach Chapter of the American Red Cross and I took a leave of absence from my work as a trial lawyer with FPL to respond to Hurricane Andrew.
In 1994, I took a break from the law and moved to Washington, D.C., with hopes that I would find actual employment in either the Red Cross or some other humanitarian organization. The week after I moved, the Northridge earthquake struck in Los Angeles and I was asked if I could volunteer in the Disaster Operations Center for the Red Cross in Alexandria, Virginia. Then, I was asked if I could respond to the disaster for a one-week assignment in the earthquake response operation in L.A.
Two months later I returned to D.C. and for the rest of the year I responded to disasters across the country on an as needed basis. In December, I accepted a full time position in Headquarters and worked for the Red Cross until 2008. From 2008 until 2012 I ran the global disaster response program of the Presbyterian Church (USA), Presbyterian Disaster Assistance. Both organizations do tremendous work around the world with people facing, responding to and recovering from disaster.
While I had maintained my membership in the Florida Bar throughout my work in humanitarian response and development, and I had remained aware of the issues that were being addressed in law, my career had focused on disaster preparedness, response and recovery. But, in 2008, a friend who is one of the pioneers of foreclosure defense introduced me to a new kind of horror. One where the human caused disaster was leaving families homeless, but with one very important difference to the disasters I had been responding to for 14 years, in this disaster there were very clear ways for the vulnerable families to fight back and, due to the nature of the practices that were making them vulnerable, in a significant number of cases they could actually win the fight, and not lose their home.
In this disaster, it is clearly the consequence of bad actions that is causing the vulnerability, and, when the laws are enforced, families can fight back, fight against the disaster, and actually avoid losing their homes altogether. While many people may still perceive foreclosure as similar to that of our grandparents’ day, many others now realize that contemporary foreclosure is often the result of failings, or outright fraudulent behavior, of the lenders and the industry, these are very different circumstances from the foreclosures of the past.
These days homeowners facing the loss of their homes are often facing circumstances brought on by:
- the collusion of the lending industry creating vastly inflated and false values of their homes to inflate the size of the loans to increase their percentages on transferring the loans, or
- facing bait and switch tactics that forced them at closing to accept interest-only high interest loans (with monstrous balloons five or ten years out) rather than the reasonably priced fixed rate loans they had been told they were approved for, or
- facing monthly payments at rates exploded beyond their capacity to pay as a result of unnecessary forced place insurance or insurance that costs multiples of what it should cost in a fair market, or
- facing foreclosure rather than a loan modified to reasonable rates they were promised if they “fall behind in payments for three months…”, or
- facing foreclosure with no notice or communication from the lender that there is a problem and alerting the borrowers to the possibility of foreclosure, or
- facing foreclosure when the mortgage changes hands and the servicers fail to notify the borrower of that change.
Circumstances that can be defended against in court. Unlike hurricanes, tornados, floods, and even armed conflict, in this disaster, there are ways to defend your home against these circumstances, and avoid losing the home. There are defenses and strategies that can be employed to attempt to overcome each of these circumstances. Defenses that are not as readily evident in other kinds of disasters.
These days Plaintiffs are suing homeowners without having the right to sue at all, actually not owning the debt or having the right to foreclose. These days Plaintiffs have admitted to falsifying affidavits and falsely notarizing documents in order to mislead Courts to let them foreclose when they didn’t have the legal or ethical right to do so. These days Plaintiffs are presenting witnesses to Courts attempting to validate exhibits that that they have no basis to validate, misrepresenting to the Courts the means and methods of verifying the documents they are using to “prove” their right to foreclose. These days there are any number of ways that Plaintiffs have subverted the housing markets and the Courts to profit from trading mortgages and notes and, ultimately foreclosing.
If we are successful in raising the issues present in each specific case to the attention of the presiding Judge, these days, in this disaster, we can stop the Plaintiff from taking the home, we can fight against rising tide of this disaster. There are no guarantees, but at least there are options that are missing in many other disasters.
In some cases the Judges are still of the mindset that the defendant in foreclosure only has one defense, that is if the defendant can prove payments to the Plaintiff, that there was, in fact, no default at all. But alternatively, many Judges seem to be aware of the many other ways that Plaintiffs are wrongly suing to foreclose and are increasingly aware of the fault of the Plaintiffs and the means they are employing to wrongly attempt to take homes. In those courts, there is a real possibility to defend against foreclosure and prevail.
In 2012 I returned to actively practicing law. Working with my friend I was able to join the families and fight back against the disaster, to help families facing the terrible stress of being sued by parties who claimed they had the right to take the families’ homes away. It is always stressful facing the possibility of losing and losing the home, but, it is a remarkable feeling to prevail and know that for that family, you have actually assisted in preventing a horrendous family disaster.
In due course, I became the senior trial attorney at my friend’s firm. I have had the opportunity to try cases across the state. I have come to know many of the attorneys and judges from Tallahassee to Key West and on both sides of the state. It has been my privilege to assist families facing foreclosure and, in many cases join them in celebrating as the Plaintiff dismissed the foreclosure against them or the Judge ruled in their favor. Of course, I have also had the sobering experience of watching as a court ruled in favor of the Plaintiff, knowing full well the Plaintiff should not have prevailed. That is the reality of foreclosure following the collapse of the 2008 real estate bubble.
Now I am gratified to assist homeowners and to bring my experience and commitment to help homeowners fight against the potential of losing their homes. I have now opened my own firm, I still try cases across the state, in fact I focus my practice on trial, but, I take responsibility for my cases from when my clients sign up with the firm through the case. I have clients on both sides of the state with cases from the Keys to Central Florida.
My new firm, the Law Offices of James R. Ackley, P.A., has adopted the Oak tree as our totem, or brand. My family name, “Ackley” means something along the lines of “Keeper of the Oak Meadow.” With that in mind, we have adopted the Oak to represent the strength and durability in the face of the disaster facing our clients. A strong, secure, sanctuary and symbol for my clients. we strive to internalize those characteristics in our practice. It is our focus to bring professional, ethical and zealous representation on behalf of our clients, and to stand through the onslaught of the parties seeking to take our clients’ homes and resources.
In this disaster, there is a definite path to prevent the loss of families’ homes, that path is to fight, to force the Plaintiffs to prove if they have any rights at all, and, wherever possible, to prevent them from taking the homes of our clients. We are working to bring the skills and experience garnered to the front on behalf of each client we represent. In this disaster, we are not helpless to prevent the loss of property, in this disaster we are able to fight back and prevent the consequences of foreclosure, maybe not in every case, but, certainly with a significant level of success.
If you are in Florida and are looking for help with your foreclosure, especially your foreclosure trial, call us at 561-594-5671 for a FREE CONSULTATION. Let the lawyers and staff at The Law Offices James R. Ackley, P.A. serve you!