Florida Asset Protection Law Blog | Attorney Jon Alper

The current draft of the governments' financial recovery act, formally the "Emergency Economic Stabilization Act of 2008" contains several provisions designed to help homeowner prevent foreclosure. The terms of the Act, being referred to as "the bailout bill", are drafted in general, unspecific terms, and certainly there will be many government regulations needed to implement the new law before any agency can actually provide foreclosure relief. The foreclosure relief provisions are found in Sections 109 and 110 of the recovery package.

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I frequently receive request from homeowners for assistance in negotiating a modification of their home mortgage to avoid foreclosure. I have usually advised people that they should themselves contact their mortgage lender to see if the lender can offer a modification of payment or interest amounts to avoid foreclosure. It is usually very expensive to pay their attorney hourly to conduct explore and negotiate with a mortgage lender to modify a mortgage loan. Loan modification and mortgage assistance is generally not a legal issue; the lender legally can refuse or grant changes in a private mortgage in the lender's discretion.

However, I have just recently become of aware of as free source of attorney help in dealing with mortgages. The Florida Bar has found a group of attorneys around the State who are offering to consult with financially distressed homeowners and to help the homeowners deal with their mortgage lenders prior to foreclosure.

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A Florida bankruptcy court recently considered an interesting homestead issue. A debtor resided in a home titled in the name of a limited partnership. The limited partnership is owned primarily by a corporation which is 100% owned by the same debtor and occupant of the property. The debtor argued that although she does not hold legal title to the house in her name, she has an equitable interest in the property as its indirect owner, and that her equitable right to control the property is sufficient to protect the property under Florida's homestead laws. The bankruptcy court ruled against the debtor and found that the property is not the debtor's homestead because it is not owned by a natural person.

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A reader posed an interesting question about tenants by entireties protection. The reader, a man, is a U.S. citizen married to a non-citizen wife. The reader stated that he currently resided in a foreign country with his new wife. Three years ago he lived in Florida. He intends to return to Florida with his wife and establish their primary residence in Florida. He has substantial debts and some of which have already resulted in Florida judgments. He asked whether he and his non-citizen, non-resident wife can maintain money and securities in protected joint financial accounts opened in Florida.

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