Jury Trials in Foreclosure Defense Cases



I’m happy to write that I won a post-foreclosure eviction case several weeks ago using a new defense that I had been working on for the past year.  One of the critical reasons for this victory, I believe, was my client’s decision to pursue a bench trial instead of a jury trial—a topic I want to discuss in this blog post.

The right to a jury trial depends on both the type of case and the court that the parties are in.  In Massachusetts, the particular cause of action determines whether a jury trial is available. Eviction (“summary process”) cases, for example, entitle parties to a jury trial.  A party needs to claim their right to a jury trial in the beginning of a case, or it is otherwise waived.

A non-jury trial goes before a judge and is called a “bench trial.”  In a bench trial, the judge hears all of the evidence presented by the parties and, like a jury, determines questions of fact.  For example, in a post-foreclosure eviction trial, the judge will decide whether the foreclosing entity complied with all of the foreclosure requirements.

In a bench trial, as opposed to a jury trial, a judge is required to present his or her findings of fact.  In other words, the judge has to explain the decision that he or she made, as opposed to a jury trial, where the jury only needs to give its verdict.

In my experience, I have found jury trials for foreclosure law issues to be extremely difficult.  The information is dense and difficult to explain to six non-lawyers who likely have no familiarity in this area of law.  More than once, I have seen jurors fall asleep during such trials!

The decision on whether a client should waive their right to a jury trial is theirs alone, and a single blog post cannot offer enough information to make this decision.  The point of this post is to encourage those involved in these cases to give serious thought about whether their case should go before a judge or jury. Rarely do “Perry Mason” moments occur in foreclosure defense; these defenses are often based on mountains of paperwork and uneventful testimony.  Because of this, jurors often may not understand the reasons why the foreclosure is void, even if the defect is crystal clear.  On the other hand, a defense based on a foreclosing entity’s blatant disregard of the law may be enough to excite a jury and therefore justify a jury trial.

With this in mind, give serious consideration to the type of trial you request in a foreclosure defense case.  Better yet, speak with an expert before making this decision.


Evictions on the Rise in Massachusetts

The New York Times reports that evictions are on the rise across the United States, including Massachusetts, where eviction filings increased 11% between 2010 to 2013.  The rise in these cases poses challenges not only to the parties in these cases, but also to the courts, who have to deal with increased caseloads, filings, and hearings.

The article cites several studies showing that the use of an attorney can make a real difference in these cases, a point I can attest to based on personal experience.  In Massachusetts, the eviction process is not always “user friendly” and I encourage anyone involved in one of these cases to seek legal representation.

Understanding Cash-for-Keys Settlement Offers

In landlord/tenant cases, “cash-for-keys” often comes up as a popular means of settling an eviction case.  In a cash-for-keys settlement, the landlord agrees to pay the tenant(s) a sum of money to leave the premises by a required deadline.  The payment of this money is often conditional upon the Tenant(s) leaving the premises in a clean condition and waiving any claims they might have against the landlord.

Landlords, understandably, are often reluctant to even consider a cash-for-keys settlement.  Often, the tenant(s) owe the Landlord months worth of back rent, and the thought of the landlord paying the Tenant to leave seems absurd.

While I sympathize with these concerns, I strongly urge all of my Landlord clients to give a cash-for-keys settlement strong consideration when trying to eviction a Tenant.  The reason for this is simple economics:  a cash-for-keys offer can save a Landlord thousands of dollars in eviction costs (and time).

Landlords who pursue cash-for-keys settlements should make the payment conditional upon the tenants leaving the premises by a required deadline, and leaving the premises in “broom swept” condition.  Landlords should ask the Tenants to waive any and all claims they may have against the Landlord, and agree that the landlord be allowed to discard any of the tenant’s possessions left behind after the vacate date.  Landlords should also insist that Tenants waive any rights to appeal or stays of the execution (a court order that a tenant can seek for additional time in the premises following an eviction).

Tenants, in turn, should ask the Landlord to waive any claims that the Landlord may have against them, specifically owed rent.  After moving out of the premises, Tenants should also take pictures of the property to prove that it has been cleaned out and, if possible, ask a friend or family member to be present so that a witness is available in case the Tenant’s move-out is ever disputed.

In need of assistance with this type of matter?  Contact me for a consultation.

Practice Pointers: Foreclosure Defense is Not About Getting a Free Home



When I started this blog almost a year ago, I wrote that one of the major myths of foreclosure defense is that a borrower can get a free home if they fight their foreclosure.  What was true then remains true today: foreclosure defense is not about getting a free home.

Obtaining a free home in a foreclosure defense case is a completely unrealistic goal.  While lenders and servicers have made a mess out of the foreclosure process–and continue to do so–these mistakes can, and certaintly will, be corrected at some point in time. Faulty notices can be corrected, loan modifications can be re-reviewed properly, and missing promissory notes can still be enforced.  A lender is doing a foreclosure because a great deal of money is at stake: anywhere from $100,000-$500,000 (and sometimes even more).  If a lender has made a mistake in the foreclosure process, it will be corrected: there is too much money involved to do otherwise.  In short, without dealing with the unpaid debt that caused the foreclosure, the ax will eventually fall for the homeowner.

A much more realistic goal for foreclosure defense is affordability: obtaining a mortgage loan that a homeowner can pay.  A well-crafted foreclosure defense can convince a lender that a reasonable loan modification is a better option than spending years in litigation.  But, make no mistake: even the best lawsuit is never going to convince a lender to give up their mortgage on a home.

As a foreclosure defense attorney, I practice what I preach:  I do not accept clients with unrealistic goals in foreclosure defense, nor do I advocate legal arguments that would amount to a court giving my client their home for free.  Attorneys and pro se litigants who do make these arguments cause much more harm than good; not only do they hurt their own cases, they make this area of law harder for everyone else.

Good Read on the Pending Federal Court Lawsuit Challenging Local Ant-Foreclosure Ordinances

I previously wrote about the pending federal court lawsuit brought by several banks challenging local town and city anti-foreclosure ordinances.  The cases raises many interesting questions on law and public policy, and is a rare case of local state banks taking legal action to challenge anti-foreclosure laws.

Yesterday, the Boston Globe published a well written editorial by Paul McMorrow in favor of these anti-foreclosure ordinances. Mr. McMorrow raises some good arguments on this matter and is worth a read.  I’ll be on the lookout for a similar editorial advocating the banks’ position in this matter.

Massachusetts’s Right to Request a Modified Mortgage Loan


In 2012, Massachusetts passed “An Act Preventing Unlawful and Unnecessary Foreclosures,” aimed at helping struggling homeowners
stay in their homes.  One of the key components of this law, the right to request a modified mortgage loan, is an effective tool for foreclosure defense.

This law, found in G.L. c. 244, § 35B, requires lenders to make a “good faith effort” to avoid foreclosure for borrowers with “certain mortgage loans.”  The definition of “certain mortgage loans” is lengthy, but does cover a large share of residential mortgage loans.  Pursuant to the Division of Bank’s regulations, if the lender cannot determine if the loan falls into this list of definitions, it is considered a “certain mortgage loan” and the lender therefore must consider the borrower for a modification.  The right to request a modified mortgage loan only applies to borrowers who have received a right-to-cure notice after November 1, 2012.

The right to request a modified mortgage loan law requires lenders to consider borrowers for a loan modification.  Lenders have several different loan modification models to choose from, but the federal Home Affordable Modification Program (“HAMP”) is likely to be the most widely used option.  For this reason, this law is also known as “State HAMP,” because it makes HAMP a requirement at the state level (HAMP is presently a federal program that only applies to a list of specific lenders).

Borrowers who are entitled to request a modified mortgage loan will receive a notice from their lender informing them of this right, and the documentation needed to process such an application.  The deadline for the borrower to respond to this letter is generally thirty days, so borrowers need to act quickly in preparing an application.  After receipt of the application, the lender is suppose to respond to the applicant’s request with an assessment of their eligibility for a modification.

G.L. c. 244, § 35B is important for foreclosure defense because it makes many Massachusetts residents eligible for a loan modification who previously had not been.  I also like this law because it explicitly requires a lender to perform a “compliant” loan modification analysis.  While it is no secret that lenders routinely mess up loan modification applications, fighting these mistakes are not always easy, as consumer protection laws and common law remedies do not always cover these abuses.  However, G.L. c. 244, § 35B appears to open the door for allowing homeowners to challenge loan modification denials.

If you are in need of assistance in preparing a loan modification application or fighting the denial of your modification, contact me.

Practice Pointers: Lessons from a Successful Foreclosure Defense Lawsuit


I’m happy to write that I settled a foreclosure defense lawsuit for one of my clients this week.  I won a temporary restraining order to stop the foreclosure
several days before the sale and negotiated a loan modification for my client that will keep him in his home with an affordable mortgage loan payment–my goal in every foreclosure defense case.

My experience in this reminded me of some important practice pointers in foreclosure defense:
  • Earlier is always, always better in stopping a foreclosure. While I encourage anyone in any stage of foreclosure to consult an attorney, sooner is always better
    in trying to save a home.
  • The more paperwork you can provide to your attorney about your mortgage loan and home, the better of a chance that they can help you.
    My client had papers going back to the closing of his home, and every notice he had received since then, which made my job much more effective (at less cost to him).
  • Working with the bank can help you save your home.  I know few, if any, bank attorneys who want to see someone lose their home.  Most, if they can, will make every effort to find a way to avoid this.  Developing a good working
    relationship with the other side can go a long way towards an effective resolution of the problem.
In need of foreclosure defense assistance?  Contact me.

Better Call . . . Sherwin!

As a huge fan of the television show Breaking Bad, I’m looking forward to Better Call Saul, the widely anticipated spin-off involving Walter White’s attorney: Saul Goodman.  Saul was one of my favorite characters on the show; the type of lawyer I never want to be, but one who I can’t help enjoy watching.

The trailer for the new show is out, and while I wouldn’t look to Saul Goodman for legal advice, I do admit that his words of wisdom in this clip are spot on, especially in the area of foreclosure defense.  He compares lawyers to health insurance: one hopes you never need either of these services, but not having these types of protection are a recipe for disaster.  Unfortunately, I’ve seen far too many clients who have not followed this advice, and forced themselves into foreclosure when they might have been able to solve the problem with legal assistance.

So, if you are facing foreclosure or another tricky legal situation, follow Saul’s advice and talk to a lawyer.  Just like a sickness, no one wants to be in a legal proceeding, but if you are, make sure you get the help you need.  In other words, Better Call Sherwin!

Overview of Important Paperwork in a Foreclosure

There is no shortage of paperwork involved in a foreclosure. I have found that some of my best educated, most informed clients do not understand all of the important documents involved in the purchase of a home and subsequent foreclosure.  Here is a quick overview of these items.

Promissory Note
When a home is purchased, the buyer signs a contract with his or her lender to borrow money to buy the home.  This contract is called a promissory note.  In it, the borrower promises to repay the lended money with interest over a period of time.  An important feature of a promissory note is that it may–and probably will–be transferred to another person or entity. This person or entity is permitted to enforce this agreement just as the original lender could. Transfers of a promissory note are often made with endorsements, that assign the debt to another entity.  These endorsements can be found on the note itself or another slip of paper, called an allonge.
Pursuant to the Supreme Judicial Court’s landmark Eaton v. Federal National Mortgage Association case, the foreclosing entity needs to be the holder of this note at the time of foreclosure. This, however, only applies to foreclosures occurring after June 22, 2012.
If you do not have a copy of your promissory note, you can obtain one by submitting a Qualified Written Request to your lender, requesting that they show you proof they are the lawful owner of your note.  Someone who signs a promissory note is on the hook for repaying the borrowed money.  However, a borrower can discharge (ex. “wipe out”) this debt in bankruptcy.  Because of this fact, the lender will want additional protection for their investment, also known as security.  This is the reason for a mortgage.

mortgage is a security interest that allows a lender to repossess (“foreclosure”) the underlining property if the debt is not repaid.  While it is common for homeowners to talk about paying their mortgage when making payments on their home, they are actually referring to the mortgage loan.  A mortgage is merely the lender’s means of protecting its financial investment.
In Massachusetts, mortgages are almost always recorded in the local county’s Registry of Deeds.  These can be found online at www.masslandrecords.com.
Just like your promissory note, your mortgage can–and almost certainty will–be assigned throughout the life of your loan.  In another landmark decision, the Supreme Judicial Court in U.S. Bank v. Ibanez held that, at the time of foreclosure, the foreclosing entity must have record assignment of the mortgage.  Anyone involved in one of these cases should therefore review their mortgage assignments carefully to see if this requirement has been complied with.
Mortgage Assignments
Mortgages are often assigned throughout the life of a loan.  Like mortgages, these assignments are almost always recorded in the Registry of Deeds.  In a typical mortgage assignment, the grantor (the person or entity giving the assignment) assigns the mortgage to the grantee (the person or entity receiving the assignment).
A deed is the document that passes property ownership to another person or entity.  When a home is purchased, the seller deeds the property to the buyer through a quitclaim deed (the standard type of deed in Massachusetts). When a home is foreclosed, the foreclosing entity records a foreclosure deed that passes ownership of the property from the prior homeowner to the person or entity who purchased the property at the foreclosure sale (typically the entity who held the mortgage and conducted the foreclosure sale).  Included in a typical foreclosure deed is an affidavit of sale, stating the steps taken to comply with Massachusetts foreclosure law, as well as a copy of the notice of sale used to advertise the foreclosure.

Understanding the Home Affordable Modification Program (“HAMP”)

The federal Home Affordable Modification Program (“HAMP”) is aimed at offering struggling homeowners a loan modification that will provide them a mortgage payment of 31% of their monthly income.  While HAMP is intended to help homeowners, the reality is that the program has extensive requirements and complicated guidelines.  I encourage anyone applying to create a paper trail when applying for a loan modification and consult a foreclosure defense attorney if you are not having success with your application.

I recently came across an excellent power point presentation on HAMP.  It is intended for loan servicers and provides an excellent overview of the loan modification process under HAMP.  It is a little outdated (March 2013), but it does provide a great overview of the process, with examples.

If you need to apply for a loan modification and are having trouble with the paperwork, contact me for a consultation. While you can apply for a modification without an attorney, many find the process easier with the help of a professional.