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.

Mortgages
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).
Deeds
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.

Breaking News: Banks Challenge Local Foreclosure Ordinances

 

Earlier this month, several banks filed a federal court lawsuit challenging several Massachusetts city ordinances related to foreclosure prevention.  These ordinances, among other things, require lenders to engage in mediation prior to foreclosure and rent to homeowners who have been foreclosed.

Foreclosure law in Massachusetts, like the rest of the country, primarily comes from state law.  It is unusual for a town or city to pass an ordinance relating to foreclosure, making these laws ripe for legal challenge.  This is an important case about whether local government can get involved in foreclosure defense, and will undoubtedly decide the fate of other local efforts to prevent foreclosure.  Stay tuned!

Practice Pointers: Create a Paper Trail When Applying for a Loan Modification

With foreclosures on the rise in Massachusetts, struggling homeowners will likely continue to apply for loan modifications in record numbers.  Loan modifications are a good option for mortgagors who have steady income and need help in obtaining an affordable mortgage loan payment.  However, despite federal and state laws created to promote loan modifications, the application process for loan modifications is, often times, anything but a breeze.

Too often, I hear from homeowners who have applied for modifications in good faith, and have been told by their loan servicers repeatedly that their applications have been lost and paperwork is missing.  Errors like these have been the subject of frequent litigation against banks and servicers.

In these unfortunate situations, a foreclosure defense attorney can help you fight a loan modification.  However, as I have often seen, a homeowner is in a much, much better position in fighting a modification if they have proof that they have been applying for a modification.  In other words, without documentation, it is only a homeowner’s word against the bank or loan servicer in claiming the loan modifications were not properly considered, which makes for a MUCH tougher case.

With this in mind, anyone applying for a loan modification should create a paper trail of their application process.  Hopefully this paper trial will never have to be used, but if a homeowner finds themselves having to go to a lawyer, this information will be a huge help in preparing your case.  Applicants for loan modifications should always do the following:

  • Make a copy of everything you submit to your bank or loan servicer.  An inexpensive scanner can be a huge help in organizing these files electronically.
  • Use some means of confirming that your bank or servicer received your application.  If you are mailing your application, send it by certified mail, which is proof that the recipient actually got what you sent them.  If you are sending it by fax, get a confirmation that your application was actually received.
  • Keep a log of all of your communications with your bank or servicer.  Note the date, time, who you were speaking with, and the status of your file.

Hopefully, your loan modification application will not end up in court.  But if you do find yourself in litigation, these steps will put you in a much, much stronger position in helping you get the relief you deserve.

 

Breaking News: Massachusetts Sues Fannie Mae/Freddie Mac Over Non-Compliance with State Foreclosure Law

Massachusetts sued Fannie Mae and Freddie Mac in Superior Court this week for these entity’s failure to comply with Massachusetts foreclosure law.  Last year, Massachusetts passed a new anti-foreclosure law that includes a “non-profit buyback provision.”  This law prevents an owner of a foreclosed property from refusing to sell the property to a non-profit organization solely because the property will, in turn, be sold back to the previous owner.  This part of the law is intended to support non-profit organization, such as Boston Community Capital, who are helping homeowners save their homes by purchasing these properties from foreclosing entities and selling then back to homeowners at the property’s market value.

Fannie Mae/Freddie Mac appear to be fighting this law because they are concerned that such buy-back programs encourage homeowners to default on their loans.  I can understand this argument from a private lender’s standpoint, but not from public government-sponsored enterprises such as Fannie Mae/Freddie Mac, who have been supported with taxpayer dollars and government bailouts and have been rightfully blamed for their role in the ongoing foreclosure crisis.  Moreover, with these buy-back programs, Fannie Mae/Freddie Mac are getting fair market value for their foreclosed properties; not a bad deal when you consider the high numbers of vacant, foreclosed properties around the country.  Fannie Mae/Freddie Mac have a long way to go in rebuilding their credibility with the American public, and fighting Massachusetts’s common sense law is not going to work in their favor.

Housing Court 101

Anyone involved in foreclosure defense needs to understand Massachusetts’s Housing Court and how this specialized forum works for these types of cases.

Housing Court was originally created as a court for housing matters in the City of Boston.  Later, its jurisdiction was expanded to cover others parts of the state.  Currently, there are five divisions of Housing Court in Massachusetts:

  1. Boston Housing Court
  2. Northeast Housing Court
  3. Southeast Housing Court
  4. Worcester Housing Court
  5. Western Housing Court
It is important to note that Housing Court does not cover all parts of Massachusetts.  The cities of Malden, Chelsea, and Revere, for example, are not part of a Housing Court’s jurisdiction (a list of the towns/cities that Housing Court covers can be found here).  A recent proposal by the Judicial Branch would expand Housing Court to all of Massachusetts; a recommendation I fully support.

Housing Court handles most types of housing matters.  For foreclosure defense, the typical cases that come before Housing Court are summary process (eviction) cases, where the foreclosing entity (most often the bank) is seeking possession of the home on the basis of a lawful foreclosure, and the homeowner is permitted to defend against the eviction by challenging the validity of the foreclosure.  Housing Court, like District and Superior Court, has jurisdiction over summary process cases.

A important feature of Housing Court is the ability of any party to transfer a case into Housing Court from another court.  This can be done anytime before the day of trial.  Removing a case to Housing Court is a straightforward matter that merely requires a litigant to file a notice of transfer form with the District (or Superior) Court and the Housing Court department the case is being transferred to.If you are involved in a post-foreclosure summary process case, should you transfer to Housing Court?  My advice: in almost all cases, yes.  Here’s why:

  1. Housing Court has been responsible for many, many favorable decisions for homeowners in post-foreclosure cases.  Housing Court is seen by many to be a pro-homeowner, pro-tenant court.
  2. Housing Court judges are familiar with post-foreclosure summary process cases because they preside over so many of them.  Plus, the odds are really good that the same judge will hear the case from beginning to end, compared to District Court, where the presiding judge may change on a weekly basis.
  3. Housing Court often requires parties to go to mediation.  If you are representing yourself, mediation can be helpful in reaching a settlement (bear in mind, however, that a mediator is not a lawyer and will not provide legal advice.  If you intend to fight your case to the end, you are better off speaking to an attorney).

Overall, the best advantage of Housing Court is knowing who your judge is.  Because the issues in post-foreclosure summary process cases tend not to vary a great deal, there is an excellent chance the judge you will be before has heard the issues in your case before.  That gives you the advantage of knowing how the judge will approach your case, and allows you to proceed accordingly.

Practice Pointers: Know Your Statute of Limitations

The statute of limitations is an incredibly important topic in law, not just for foreclosure defense, but for any type of civil litigation. Foreclosure defense attorneys and pro se litigants alike need to keep the statute of limitations in mind anytime they deal with a legal matter.

The statute of limitations set a deadline on which claimants can bring certain types of suits.  The purpose of this is fairness; potential defendants should not be subject to legal claims that happened a long time ago.  The statute of limitations requires claimants to pursue these claims before the end of these deadlines, or forever be barred from bringing them.

In Massachusetts, the statute of limitations is found in G.L. c. 260. Some of the important ones, for foreclosure defense, are:

  • Consumer Protection Actions:  4 years
  • Breach of Contract Claims: 6 years
  • Torts: 3 years

Generally, the statute of limitation begins when the cause of action arises.  While this can sometimes be uncertain, the important thing to remember is that one should not wait in pursuing a legal claim. The picture above says it best: missing the statute of limitations can mean that you are SOL in bringing your case.