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  • About David Abrams

    David Abrams is an attorney at the Law Office of David H. Abrams in Tallahassee, Florida. He studied law at City University of New York Law School. He is a native of Westmoreland, New York. His practice assists those facing foreclosure, debt collection lawsuits, or dealing with a loss of income associated with illness or injury. He also assists with issues of estate planning and guardianship. He is married to Barbara Demby Abrams. More information, including “The People’s Law Podcast" is available at http://bigbendbankruptcy.com
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    David Abrams' - You And The Law...

    Early lawyer involvement in tenant problems and foreclosures may prevent eviction, loss of home

    By: David Abrams
    January 24, 2012

    I was watching the proceedings in our local County Court recently when a case was called involving a couple who were facing eviction because they had stopped paying rent after receiving a foreclosure notice.

    Without the assistance of a lawyer, they informed the Court that they didn’t know what to do when they were served a copy of a foreclosure lawsuit.  They expressed feelings of betrayal and exploitation that their landlord had defaulted on his mortgage payments while they had previously been diligent in making their rent payments. When they were served a copy of the foreclosure lawsuit they stopped paying the rent. 

    They were afraid that the rent would be wasted because they didn’t know how much longer they would be able to stay in their home. Also, they weren’t sure if they should be paying their rent to the bank, the court, or to the landlord. Trust with their landlord had been broken and his assurances that they were not facing immediate loss of their home were not reassuring.  The landlord, upset at not receiving the rent, then filed an eviction action against the couple. 

    Fortunately, this couple had saved their rental payments and, when the eviction was filed, had the money available to pay the rent into the Court. 

    Ultimately, the couple was able to save their rental home, but only after paying the past due rent, late fees, court costs, and the landlord’s attorney fees.  It was an expensive mistake not entirely of their own making.  I know from my own clients’ experiences that this scenario is hardly unique. 

    The law requires that tenants residing in a residential property that is subject of a foreclosure action be served with a copy of the foreclosure lawsuit. 

    This is because the tenant has an interest in possession of the property and the foreclosure could potentially impact that possessory right.  A tenant has a right to be heard in a foreclosure, although few file a response or seek legal representation.  Many tenants who receive foreclosure lawsuits simply stop paying rent and move from the property.

    This is unfortunate because it can create legal problems for the tenant and leaves the landlord, creditor, and community with an empty property.

    It is important that tenants understand that foreclosure does not mean that they will be immediately subject to eviction from their rental property.  In 2009 Congress passed the “Protecting Tenants at Foreclosure Act” which created important protections for renters whose landlords loose their property to foreclosure.

    This law was scheduled to expire in December 2012, but has since been extended until 2014.  Tenants must, at a minimum, be given 90 days after a foreclosure sale to vacate the premises.  Given that foreclosure lawsuits often languish in the Courts, sometimes taking a year or more to complete, a tenant may complete their lease prior to a foreclosure sale. 

    Payment of rent during foreclosure is an important concern for tenants.  First and foremost, a tenant should not simply stop paying rent.  However, the question does sometimes arise as to who is the proper recipient of the rent payment?  Tenants who are confused regarding their rights and responsibilities should contact an attorney for guidance. 

    Under no circumstance should the tenant assume that a foreclosure means they can stay in the property rent-free.  If the landlord disappears, as sometimes happens, the rent should be saved in the event that back rent needs to be paid in order to remain in the property. 

    The importance of a tenant obtaining early competent legal counsel cannot be understated. 

    This is a complicated area of law that requires knowledge of residential landlord tenant law, foreclosure, contracts, and civil procedure.  Even a tenant who simply wants to terminate his or her lease due to the foreclosure faces procedural requirements that left unfulfilled could result in liability for rent due for the duration of the lease. Therefore, early lawyer involvement for the tenant is very valuable. 

    There are a number of options available for tenants seeking legal counsel. 

    Tallahassee has several lawyers who limit their representation to tenants only and who provide free 30-minute consultations.  Additionally, Legal Services of North Florida runs a homelessness prevention program for clients who meet their income qualification