Foreclosure Help

Foreclosure Help

Foreclosure help can be essential for homeowners attempting to avoid foreclosure and save their homes.  One of the biggest mistakes homeowners make is waiting too long to get assistance with this stressful process.  When should homeowners seek foreclosure help?

Preparing a Loan Modification Application 

Foreclosure defense is not about getting a free home; foreclosure defense is about getting an affordable loan payment.  A loan modification is the general way to obtain this relief from a mortgage lender.  Applying for a loan modification, however, can be a complex process, requiring enormous paperwork and follow-up phone calls with the loan servicer.

A homeowner does not need a lawyer or other professional to help with this process.  However, if a homeowner does it on their own, they need to keep up with the paperwork requirements and do the application correctly.  If the homeowner does not have the time or interest in preparing an application, they should absolutely get the help of a reputable professional for this process.  The Massachusetts Attorney General’s Office is one good resource for seeking such assistance, and there are other non-profit organizations around the state who similarly help with loan modification applications.

Problems With The Review of a Loan Modification Application

If a homeowner is having trouble with a loan modification application, foreclosure help is a must.  Often, a lender’s repeated failure to properly review one of these applications, by “losing” paperwork and coming up with bogus reasons for denial, can be grounds for legal action.

Imminent Foreclosure Sale Date

A homeowner with a imminent foreclosure sale date should likewise obtain foreclosure help, mainly through an attorney.  An attorney can help a homeowner understand options available for stopping a foreclosure and see if a permanent resolution to the problem can be reached.

After a Foreclosure Sale

In my opinion, foreclosure help is an absolute must for any homeowner who has already been foreclosed.  A foreclosure defense attorney can help a former homeowner determine if there are grounds to rescind or buy back the foreclosed property.  Even if the homeowner has no interest in staying in the home, an attorney can be incredibly helpful in ensuring that the homeowner’s rights are protected, and avoiding an additional liability.

If you find yourself in need of foreclosure help, contact me for a consultation.

How Long Does an Eviction Take?

How long does an eviction take in Massachusetts?  Answering that question is like a weatherman stating what the weather is going to be the next day: an expert can give a good prediction, but many unknown factors can make a big difference in the ultimate outcome.

Beginning a Massachusetts Eviction Case

The beginning of a Massachusetts eviction case is an important consideration in determining how long one of these cases will ultimately take.  To start an eviction, a landlord is required to send a notice to quit, which informs the tenant that their tenancy is over.  The timeframe under one of these notices depends on the reason for eviction, and are usually anywhere from seven to thirty days.

Filing An Eviction Case

Following the service of a notice to quit, the landlord must file the eviction case.  Unlike a typical lawsuit, where the lawsuit is filed with the court and then served on the party, in an eviction case, the opposite happens: the eviction case paperwork is served on the tenant first, and then filed with the court.  This notice must be served on the tenant at a minimum, seven days before it is filed with the court (and not more than thirty days).

Discovery, Trial

The next factor in determining how long an eviction takes is whether the tenant(s) request discovery and a jury trial.

Discovery is the right of a party to learn information from the opposing side, through interrogatories (written questions) and request for documents.  A request for discovery automatically postpones an eviction trial by two weeks.  Depending on the amount of information requested, discovery may take even longer.

A defendant in an eviction case has a right to a jury trial.  Unlike bench trials, which are held before a single judge, a jury trial requires the calling of potential jurors by a court, and usually happens on select days at a court.  As such, a request for a jury trial typically also pushes back an eviction case, depending upon the court’s trial schedule.

Conclusion 

The above are some of the many factors that help answer how long  an eviction in Massachusetts take.  Generally, an uncontested eviction will take between one to two months.  A contested eviction, with requests for discovery and a jury trial, can take anywhere from three to six months.

Having an experienced attorney on your side can make a huge difference in moving one of these cases along, and getting you the results you need.  Contact me for a consultation.

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.

I’ve Been Served With An Eviction Notice! Now What?

What to Do After Receiving a Massachusetts Eviction Notice

Getting served with an eviction notice can be a stressful experience.  Tenants who receive one of these notices need to act quickly to protect their rights.

What is An Eviction Notice?

An eviction notice in Massachusetts is generally one of two things.  To start an eviction, a landlord must send a tenant a notice to quit, informing the tenant that their tenancy is being terminated.  These notices typically provide fourteen or thirty days notice to the tenant, depending on the reason for the eviction.

After a tenancy is terminated, a landlord must serve the tenant with an eviction summons.  This is the official court notice that an eviction is beginning against a tenant, and is the eviction notice that a tenant needs to be most mindful of.

Important Dates in an Eviction Notice

An eviction summons contains a number of different dates, including an entry date, hearing date, and answer deadline.  This last date, the answer deadline, is the most important date to keep in mind in responding to an eviction notice.  This is the date by which the tenant must respond to the eviction notice, and state the reasons why the tenant believes he or she should not be evicted.

Under the rules for Massachusetts evictions, the answer must be received on the answer date.  Unlike other types of court cases, mailing an answer on the answer deadline is not compliant with this deadline; the clerk’s office and the landlord must actually get the answer by this deadline.  Failing to comply with this deadline puts you at risk of a default judgment (an automatic win for the landlord).

Filing An Answer and Request for Discovery

This response to an eviction notice is known as an answer.  In an answer, the tenant is required to admit or deny each of the allegations made by the landlord against the tenant, and to list each of their defenses against the eviction.  A tenant also has the option of bringing claims against the landlord, known as counterclaims.  Common defenses and counterclaims in eviction cases include poor conditions in the rental unit, discrimination, and violation of the Massachusetts Security Deposit Law.

A tenant also has the right to request discovery from the landlord.  Discovery is the process by which a tenant can ask a landlord written questions, which the landlord must answer under oath, and to request that the landlord produce all documents relevant to the case.

Speak With A Landlord/Tenant Attorney For Help in Responding to An Eviction Notice

If this process sounds confusing to you, you aren’t alone.  Despite the availability of many landlord/tenant resources online, eviction cases can be complex and tricky.  Tenants who have received an eviction notice should give serious thought to  meeting with a landlord/tenant attorney for help with their case.  Many tenants are surprised to learn that such services can be affordable and, most importantly, effective at getting you the results you need.

Appealing an Eviction Case

Appealing an eviction case is a complicated subject.  I could write for hours on the topic, and even then, would only cover the basics.  Here, I want to offer two critical points for anyone appealing an eviction case: act quickly, and hire an attorney for your appeal.

What is an Appeal?  What Court Does it Go to?

An appeal is a request for a higher court to review A trial court’s decision (the court where the eviction case was first brought).  An appeal looks at whether the trial court judge made the right decisions in the case, and whether the matter should be sent back to the trial court (“remanded”) for another hearing or trial.

An appeal, importantly, is not a “do over.”  A party generally does not get to do their case all over again, in hopes that the appeals court will come out a different way.  Rather, the appeals court looks at whether the trial court made any errors of law.  This is an important things to keep in mind: even if you believe, strongly, that the trial court got its decision wrong, this may not be enough to win on appeal.

Appeals for eviction cases, whether they be for standard landlord/tenant cases or post-foreclosure eviction matters, are brought in one of two courts.  For eviction cases brought in the District Court, appeals go to the District Court Appellate Division.  This is a court made up of other District Court judges, and hold hearings in different courthouses around the state.  A decision from the Appellate Division can then be appealed to the Appeals Court.  Eviction cases coming from the Housing Court or Superior Court go directly to the Appeals Court, which sits in Boston.

The appeal rules for the Appellate Division and Appeals Court have some differences, but the process is generally the same.  An appeal requires a party to prepare a brief, a written document (usually 40-50 pages) stating the reasons why the lower court was wrong.  Depending on the case, the parties may have an opportunity to do an oral argument before the appellate judges, and state the reasons why the lower court was wrong.  The appellate court will then issue a written decision, where the court will either agree or disagree with the lower court’s decision, and state what will happen next for the case (if anything).

Anyone considering appealing an eviction case should follow the following pieces of advise closely.

Tip #1: Act Quickly 

Hands down, the most important advice on the topic of appeals: act quickly.  Unlike most other appeals, which allow a party thirty days to file a notice of appeal, a notice of appeal for an eviction case must be filed within ten days of the trial court’s entry of judgment.  Moreover, several cases have held that the failure to comply with this deadline is grounds for dismissing an appeal . . . regardless of the circumstances.  This suggests that even a showing of good cause is not enough to file a late notice of appeal for an eviction case.  With this in mind, never, never take a chance of missing this deadline.  If you do not have a lawyer, the clerk’s office can generally help you fill out a notice of appeal, a short form telling the court and other side that you plan to appeal.

This advice, importantly, applies equally to both landlords and tenants/former homeowners: the failure to comply with this appeal deadline can be fatal to your case.

Tip #2: Get a Lawyer

The second piece of advice for appealing an eviction case is to get an attorney.  I’m generally not a fan of advising people with legal matters to do cases on their own.  Without a solid legal background, it is difficult for even the smartest pro se  party to prevail in court.  For appeals, it is near impossible.  The rules of appellate procedure are a challenge for even experienced lawyers, and the many other complexities of appeals make this process a real challenge for even the best lawyers.  If you find yourself involved in appealing an eviction case, don’t do it on your own.  Speak to an experienced attorney about obtaining legal representation.

Sherwin Law Firm Succeeds in Bringing Lawsuit Over a Denial of a Loan Modification

I’m pleased to announced that I prevailed today in bringing a lawsuit against a national lender for the denial of a loan modification.  The court rejected the lender’s argument that the lawsuit should be dismissed, allowing the lawsuit to go forward as planned.  In this lawsuit, I am seeking damages against a lender whose two year refusal to properly review my client’s loan modification application forced him into foreclosure.

What is a Loan Modification?

A loan modification is the restructuring of a mortgage loan to make the payments more affordable.  This generally consists of a combination of a lowered interest rate, term extension, and principle forbearance.  To apply for a loan modification, a borrower must generally prove they have sufficient income to afford a modified loan payment.  Lenders generally want borrowers to provide bank account statements, tax returns, and a variety of other documents about the need for this assistance.

Problems in Applying for Loan Modifications

Despite loan modifications being intended to help homeowners, the process of applying for this assistance is often a mess.  It is not uncommon for lenders to “lose” paperwork and required the repeated submission of the same documents over and over again.  Mortgage lenders have been known to deny loan modifications for reasons that do not make the slightest bit of sense.

What Can Be Done After a Denial of a Loan Modification?

In Massachusetts, like most of the country, a lender is not required to offer a homeowner a loan modification.  As such, a homeowner generally does not have a viable claim against a lender merely because their modification application has been denied.

Massachusetts courts, however, do allow lawsuits to be brought under the Consumer Protection Law under certain circumstances involving the denial of a loan modification.  The Consumer Protection Law, commonly known as Chapter 93A, prohibits “unfair and deceptive business practices.”  Massachusetts courts have taken the positions that repeated instances of misconduct by a lender in the denial of a loan modification can constitute a Consumer Protection Law claim.  This is the key, however: the borrower must alleged more than simply that their application was denied.  Rather, the borrower must show, as one court puts it, a “pattern or course of conduct involving misrepresentations, delay, and evasiveness” in reviewing a loan modification application.

The Consumer Protection Law can be a powerful weapon for consumers facing the denial of a loan modification.  This law, in certain circumstances, can allow for attorney fees, treble damages, and costs if the court find in the borrower’s favor.  In addition to money, the law also provides for equitable relief, which is a remedy other than money, such as a court order rescinding a foreclosure sale.

If your find yourself struggling with the denial of a loan modification, contact me to see if you have a similarly viable lawsuit against your lender.

What Happens After a Foreclosure Sale?

Homeowners who have gone through a foreclosure often ask me what happens after a foreclosure sale.  More specifically, these homeowners often ask if they need to leave their home right away after a foreclosure auction sale.  The answer is no.  Even after a foreclosure sale, the new owner is required to perform an eviction of the occupants remaining in the foreclosed property.

Overview of a Massachusetts Foreclosure

Massachusetts is a non-judicial foreclosure state.  This means that a bank does not need to go to court to get permission to foreclose (unlike states like New York and Florida).  A Massachusetts foreclosure requires sending a number of required notices, publishing a foreclosure sale notice, and holding a foreclosure auction.  If done correctly, the bank (or third-party buyer) becomes the record owner of the property.  While ownership of the home changes after a foreclosure sale, possession does not.  The new record owner is required to bring an eviction case against the former homeowner(s) residing in the foreclosed home.

Post-Foreclosure Eviction

What happens after a foreclosure sale?  The bank (or third-party buyer) must file an eviction against any persons who remain in the property.  This eviction, known as a summary process action, is generally filed in a District Court or Housing Court.  In these cases, the homeowner has the opportunity to defend against the new owner’s claim to possession by alleging that the foreclosure was not performed correctly.

An important point to note for homeowners in such a case: you do not need to leave the home until the court orders you to do so.  The new owner must obtain a judgment from the court allowing them possession of the home.  Until this is done, the new owner cannot forced you out of the property under any circumstances.

What Should You Do After a Foreclosure Sale?

If you have gone through a foreclosure of your home, contact a foreclosure defense attorney for a consultation, regardless of your intentions for the home.  In other words, even if you plan to leave the home, it is still worth speaking to an attorney.  An attorney can help determine if you have a defense against the foreclosure.  Even if you plan to leave the home, a foreclosure defense attorney can assist you with resolving any liability you may have against the new owner and possibly get you relocation assistance.

Returning a Security Deposit

 

Rule number one for Massachusetts landlords: never, never take a security deposit.  As I have written before, the risks just aren’t worth it.  The Massachusetts Security Deposit Law is one of the most complex and detailed laws on the books, with numerous traps for the unwary.  Failing to follow one of the law’s requirements can result in treble damages, attorney fees, and costs against the landlord.  As such, a $1,000 security deposit can easily result in $4,000-$5,000 in damages against a landlord if the security deposit law is not strictly followed.

An important part of this law concerns returning a security deposit.  Returning a security deposit would seemingly be an easy task, with the landlord simply taking the required amount of damages from the deposit and returning the balance to the tenant.  The security deposit law, however, has detailed requirements for how this must be done.  Failing to comply with even the most minor requirements of this law can result in enormous damages to the landlord.

How should a landlord handle returning a security deposit?  Contact a landlord/tenant attorney.  An attorney can help ensure that each of these requirements are complied with and save time, money, and heartache down the road.  While it may seem “overkill” to hire an attorney for such a seemingly small matter, doing so can avoid an even bigger problem resulting for a violation of this law.

Tenants who are having problems with getting their security deposits back should also speak to a landlord/tenant attorney.  The aim of the Massachusetts Security Deposit Law is to avoid having tenants lose their security deposits without cause, and provides relief for violations of this law.

Text Messages as Evidence – Lessons from the Massachusetts Texting Suicide Case

If you followed the news today, you know about the guilty verdict in the texting suicide case taking place in the Massachusetts Juvenile Court.   In a well reasoned oral decision, Judge Lawrence Moniz  found the defendant, Michelle Carter, guilty of involuntary manslaughter through her numerous text messages urging her boyfriend to kill himself.  This case earned national attention as it concerned sensitive topics of teen bullying, suicide, and electronic communications.  Here, I want to focus on another important aspect of this case: the growing use of text messages as evidence.

Text messages, like most areas of technology, have changed a great deal over the past decade.  I remember when text messages were more of a novelty than an accepted means of communication.  Now, it is completely acceptable to use text messages to share important information.  This is quite a change from years ago, when many of us relied more on email and phone conversations to communicate.

The texting suicide case shows an important implication of text messages as a means of communication: these messages last forever.  Unlike a phone call, which is rarely recorded, text messages often remain in a cell phone or in “the cloud” permanently.  This has enormous implications, as the defendant in this criminal case learned the hard way.  If this defendant had urged her boyfriend to kill himself over a phone call, it is doubtful the Commonwealth of Massachusetts could ever have obtained the evidence needed to convict her.  This is an important lesson from this case: text messages as evidence have powerful consequences in legal matters.

A simple lesson should always apply to using text messages: if you text a message, be prepared for it being presented as evidence if a legal matter ever arises.  This is not the first (and certainly will not be the last) time that text messages are the basis of a legal matter.  Last year, the Massachusetts Land Court ruled that text messages could constitute a legally binding real estate contract, emphasizing how courts are adopting to electronic communications in civil and criminal cases.

In my practice, I take advantage of text messages as evidence.  Such messages are extremely credible and persuasive in presenting facts to a judge or jury.  However, text messages are worthless if these communications are not preserved and, most importantly, in a form available to present to a court.  You would be surprised at how many people are prepared to simply hold up their cell phone to show a text message to a judge or jury!  That approach doesn’t work; a court requires such evidence to be presented in a manner that can be part of a permanent record.

As an evolving area of the law, it is not completely clear on the best way to present text messages as evidence.  Most smartphones have apps that allow a user to turn text messages into PDF files, which can be printed and introduced as evidence.  This approach appears to be generally allowed by courts in accepting such messages into evidence.  For anyone with a text message that may be relevant to a legal matter, I recommend using such an app, as well as keeping the original text message on your phone and making a backup copy.  Like any piece of evidence, if it is lost, it isn’t much help to you.

 

Avoid Foreclosure

Potential clients often ask me for advice on how to avoid foreclosure.  Here are a few important tips I recommend.

Obtain and Document Income

Contrary to free “advice” available on some Internet websites, foreclosure defense is not about getting a free home.  While there are ways of delaying or stalling foreclosure, that is only what can be done: delay the inevitable.  The only sure means to avoid foreclosure is paying the mortgage loan for the property.  To do so, a homeowner needs income.  For purposes of obtaining a loan modification, a lender will generally consider any documented source of income.  This is an important qualification for showing a lender that you qualify for a modification: you must be able to account for where the money comes from.   This advice is usually most relevant to self-employment and rental income.  Lenders generally want to see such income deposited in a bank account.  Without such deposits, a homeowner faces a difficult time trying to prove they really earned the alleged source of income.

An important side note: homeowners facing foreclosure who do not have the required income to obtain a loan modification should still contact an attorney for assistance with their case.  An attorney can help a homeowner review their options and decide with them their best course of action.

Keep a Record Of All Contact With Your Lender

One of the single, most important pieces of advice I can give homeowners to avoid foreclosure is to keep a record of all contact with your lender.  If you find yourself in a situation where legal action may be necessary, having a record is a huge help in advancing your case.  Even homeowners with the best memories are often unable to remember specific details occurring years ago.  Keeping a paper trail of your communications with a mortgage lender can be one of the best things you do to avoid foreclosure.

Seek The Help of a Foreclosure Defense Lawyer Sooner Than Later

Most importantly, seek the help of a foreclosure defense lawyer sooner than later if you find yourself facing foreclosure.  Stopping a foreclosure becomes increasingly difficult as a foreclosure date is scheduled (but still not impossible; homeowners in any stage of the foreclosure process should talk to a attorney if foreclosure defense is needed).  The sooner you speak to an attorney, the better luck an attorney will have in helping you resolve the problem.

If you need help to avoid foreclosure, contact me for a consultation.