Declaratory Judgments 101

Homeowners have the option of challenging the validity of their foreclosures in a civil action case.  A common cause of action that foreclosure attorneys bring in these case are declaratory judgments.

A declaratory judgment, simply put, asks the court to make a legal determination that resolves legal uncertainty for the parties.  Under Massachusetts law, the power to make a declaratory judgment is broad and covers a broad array of matters.  For pre-foreclosure defense cases, I often ask for a declaratory judgment that the foreclosing entity is not entitled to perform a foreclosure of my client’s home and in post-foreclosure cases, a declaratory judgment that the foreclosure is void because the foreclosing entity did not comply with the terms of the mortgage and/or applicable foreclosure statutes.

An important requirement for requesting a declaratory judgment is that all parties “who have or claim any interest which would be affected by the declaration” need to be a party of the lawsuit.  For foreclosure cases, this often means that all parties to the mortgage and all entities involved in the foreclosure need to be included in the lawsuit.  For post-foreclosure cases where my clients have tenants, I include them as well, as the validity of the foreclosure would affect the tenants’ landlord/tenant relationship.

The purpose of a declaratory judgment is “to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations . . .”  A court issues a declaratory judgment through a simple court order stating its legal determination on the disputed issues.  In foreclosure cases, a declaratory judgment holding that a foreclosure was void can be recorded in the Registry of Deeds and has the effect of restoring the homeowner’s title to the property.

Declaratory judgments can be raised in Superior Court, Land Court, and Federal Court.  I find declaratory judgments to be useful in foreclosure defense cases because they provide resolution to matters of law that do not always fit in with other kinds of causes of action.

A Foreclosure Defense Attorney is Not a Financial Adviser

A foreclosure defense attorney may be able to do many things for you, such as fighting a foreclosure, preparing a loan modification application, or negotiating a leave from your home.  However, a foreclosure defense attorney is not—and should not—be your financial adviser.

Homeowners facing foreclosure need to make tough decisions on what to do with their homes.  For some, fighting a foreclosure and trying for a loan modification is the best way to go.  For others, walking away and going for a fresh start may make more sense.  A lawyer can advise you of your legal options and what to expect in your case, but advice on the financial implications of your situation is best left to a financial adviser, and not a lawyer.

Now, of course there are many lawyers with financial backgrounds; some who are even financial advisers themselves.  Even so, clients should always get a second opinion on their cases.  Even under the best circumstances, fighting a foreclosure is difficult and you should be certain you are fighting for the right outcome.

Fighting a HAMP Loan Modification Denial

Loan modifications are an essential tool in foreclosure defense. The goal is almost all of my cases is to get the homeowner a monthly mortgage payment they can afford. Unfortunately, a federal program aimed at helping homeowners has become a source of its own problems.

In 2009, in an effort to assist struggling homeowners, the federal government created the Home Affordable Modification Program (“HAMP”). The goal of HAMP is to offer a loan modification for qualifying borrowers with a monthly mortgage payment of 31% of the borrower’s income. Lenders and servicers are suppose to use a “waterfall” approach to create affordable monthly payments through 1) capitalization of the outstanding debt 2) interest rate reduction or 3) term extension.

Simple enough? Not quite. HAMP has fallen well below expectations and has helped far fewer homeowners than was expected. I’ll give you my reason for these dismal numbers:  lenders and servicers aren’t playing by the HAMP guidelines. I’ve heard horror stories of borrowers who have spent years submitting applications and constantly being told their paperwork is missing or being denied for reasons that make not the slightest bit of sense.

It gets worse: in a ongoing class action lawsuit here in Boston, several Bank of America employees have given sworn testimony that their employer rewarded employees for denying HAMP modification applications.

With this in mind, anyone applying for a HAMP modification should keep detailed records on the application process and–most importantly–have proof that they submitted all of the paperwork.

If you’ve been denied a HAMP modification, seek an attorney immediately. While courts differ in their approaches to allowing HAMP lawsuits, Massachusetts has a strong consumer protection law that can often be used in these cases.

I’ve help many homeowners with HAMP denials.  Contact me for a consultation.


Mortgage/Deed Reformations & Foreclosure Defense

As the foreclosure crisis continues throughout Massachusetts and the rest of the country, mortgage/deed reformations continue to be popular cases in Massachusetts Land Court and Superior Court. With the right approach, these cases can be effective tools in foreclosure defense.

Reformation cases, simply put, are attempts by banks and lenders to fix mistakes in mortgages and deeds.  When a mortgage loan is in default, the foreclosing entity often takes a close look at the title to see if the paperwork is in order.  In many cases, these foreclosing entities are finding huge mistakes in mortgages and deeds, including incorrect property descriptions and missing information (a reason why real estate law has one of the highest areas of legal malpractice).

The bank and lenders will often first try to contact the borrowers and see if they will consent to correcting the mistake.  If they won’t, the bank or lender needs to bring a court action to reform the mortgage or deed.  These cases are generally brought in either Superior Court or Land Court and ask the Court to correct the error based on principles of equity and fairness.

Following a common piece of advice given on this blog:  if you get notice of one of these lawsuits against you, don’t ignore it.  The foreclosing entity is bringing one of these lawsuits for a simple reason: unless it corrects the mistake in the land records, it can’t foreclose.  With this in mind, you may be able to use this mistake to your benefit and negotiate with your lender for a loan modification or some alternatives.

If you find yourself in one of these situations, contact me for a consultation.

How a Foreclosure Defense Attorney Can Help You Leave a Home You No Longer Wish to Keep

While foreclosure defense attorneys are generally in the business of helping people save their homes, struggling homeowners should also consider an attorney when they simply want to walk away.

For many reasons, some homeowners are ready to be done with their homes and move on.  Either they cannot afford the home even with the best loan modification or they have simply had enough and are ready for a change.  In any case, the worst thing these homeowners can do is simply pack up and move away.  Why?  Until a foreclosure happens or you convey the property, you still own the home. Therefore, you’re still liable for anything that happens at the home (and still responsible for any state/city taxes and services).  For example, if someone is hurt as a result of you not maintaining the property after you’ve walked away, you could very well be responsible for any injuries or expenses caused by your failure to maintain the premises.

Homeowners in these situations have several opportunities to gracefully leave their homes, including a short sale and deed-in-lieu of foreclosure. Not only do these options prevent any potential liability, they also avoid the stigma of having a foreclosure on one’s record.

This advice also applies to former homeowners living in foreclosed homes.  Even if you’re ready to move, it is a good idea to notify the new owner in writing and let them know you are no longer in possession of the home.  Moreover, these former homeowners can often make “cash for keys” settlements that will provide them money for relocation expenses in exchange for leaving the home.

Do any of these situations apply to you?  Contact me for a consultation.

Practice Pointers: How to Help Your Foreclosure Defense Attorney Help You

As a foreclosure defense attorney, I’m in the business of helping struggling homeowners save their homes.  Potential clients who are facing home foreclosure often ask me, “What can I do to help my case?”

The best way to help your attorney with your case is the preparation you do before you meet with an attorney.  Here are some things I find that clients can do to help me do my job better (and, save them less money in legal fees).  These tips are geared towards foreclosure defense but also apply to most other areas of law:

  • Create a Timeline:  Most foreclosure cases (and many other areas of law) are fact intensive, and its a huge help for a client to have a timeline of the case, from beginning to end.
  • Keep Copies of Everything:  Having ready access to the important papers in your case save incredible time for your attorney.  Keep copies of everything.  With that in mind . . .
  • Stay Organized:  Find a way to organize your materials. I’m a huge believer in going “paperless” by scanning all my documents and then storing them into easy-to-find folders on my computer. Services like Google Drive and Dropbox are great for this. Being able to provide your attorney with an organized file of your paperwork makes everyone’s life much easier.
  • Create a “cast of characters:  Make a list of every person who has anything to do with your case (or knows something about it).  Include as much information about each person you know. Not only will this help your lawyer better prepare your case, it helps your lawyer determine if he or she has a conflict in taking your case.

Breaking News: Supreme Judicial Court Issues Galiastro v. MERS Decision; Permits Parties on Appeal to Use “Produce the Note” Argument

The Supreme Judicial Court issued its decision in Galiastro v. MERS and allowed homeowners on appeal to use “produce the note” arguments in their foreclosure defense cases.  In Eaton v. Federal National Mortgage Association, the Court held that a foreclosing mortgagee must hold the promissory note at the time of a foreclosure sale.  This decision, however, was prospective and applied only to foreclosures whose notices of sale were issued after the date of the decision:  June 22, 2012.  In Galiastro, the Court extended the “Eaton rule” to parties who had appeals pending in the Appeals Court when the Court decided Eaton.

More on this to come, but the Court’s decision makes sense.  It would be unjust to allow Eaton to apply for that single case that made it to the Supreme Judicial Court but not for others who were similarly on appeal.

Hire a Foreclosure Defense Lawyer for a Loan Modification

loan modifications

To help homeowners avoid foreclosure, state and federal law often requires lenders and servicers to offer loan modifications to qualifying borrowers. Federal programs like the Home Affordable Modification Program (“HAMP”) are designed to get monthly mortgage payments down to an affordable amount (HAMP aims for your payment to be 31% of your income).

While the concept is simple, the process often is not.  Loan modifications require an enormous amount of time and communication with the lender and servicer.  Often, documents get “lost in the shuffle” and require follow-up calls.

As a foreclosure defense attorney, one of my services is assistance with loan modifications.  As I tell every potential client, unlike many of my other services, you can do a loan modification on your own. But, if you do not have the time or understanding to do it right, you are often better off getting the assistance of a professional.

In need of assistance?  Contact me today.

Case Summary: Bevilacqua v. Rodriguez (460 Mass. 762)

The Massachusetts Foreclosure Blog presents cases summaries on major Massachusetts foreclosure law cases. This post discusses Bevilacqua v. Rodriguez, the sequel to the seminal U.S. Bank v. Ibanez decision.

Bevilacqua, in many regards, came directly as a result of U.S. Bank v. Ibanez.  A little recap: in Ibanez, the Supreme Judicial Court held that a foreclosing entity must have record assignment of the mortgage prior to foreclosure.  The Court’s decision had immediate ramifications for property owners in Massachusetts; many foreclosures were now void, and other than re-doing the foreclosures, there seemed to be no way of fixing these “Ibanez” defects.

Bevilacqua was an attempt by a homeowner who purchased a foreclosed property to establish good title to his home.  As a result of Ibanez, this homeowner did not have good title to his home, due to the underlining foreclosure.  To fix this problem, the homeowner brought a try title case against the prior, foreclosed homeowner.  A try title case allows a person in possession of land, with record title, to bring a court action against a claimant with an adverse claim to the property and compel them to try their claim from the property, or forever be barred from doing so.  In other words, try title requires the adverse claimant to “put up or shut up” their claim against the underlining property.  In this case, the claimant was trying to compel the former homeowner to try his claim related to the void foreclosure.

The Court didn’t get into the merits of this claim because it found that the claimant lacked standing to raise this kind of action.  To bring a try title action, a claimant needs to have 1) possession of the property and 2) record title.  This latter requirement was fatal to the claimant’s case.  The Court held that because the underlining foreclosure was void, the claimant had no title.  In other words, with a defective foreclosure, it is as if the foreclosure never occurred in the first place.

So, what are the take home points from Bevilacqua?

    • No easy solutions exist for defective foreclosures.  It is estimated that thousands of foreclosure are invalid as a result of Ibanez and other than redoing the foreclosure, there are no quick fixes for ensuring the title of these properties.
    • Bevilacqua rejects the theory of a “good-faith buyer” against a void foreclosure.  In other words, a third-party buyer–who had nothing to do with the foreclosure–cannot escape the problems of defective title by merely claim to be an innocent party who purchased a home without knowing about the foreclosure.  In foreclosure court cases, these third-party parties often try to make this argument and Bevilacqua seems to amply reject this claim.

Practice Pointers: I Think, Therefore I Am [Not Going to Say That to the Court]

Defense attorney Clarence Darrow, Chicago, July 1924

Several months ago, I had the honor of serving as a judge for my alma mater’s appellate advocacy course.  Appellate advocacy is a rite of passage in law school; students are required to write a brief and argue their position in front of a group of mock judges. Your’s truly was Chief Justice of the panel and I had the opportunity to hear fantastic arguments from soon-to-be lawyers.

As a mock judge, I was asked to provide feedback to the students. One of my critiques to the students is especially important in the area of foreclosure defense and I’m sharing it here in hopes that it might be helpful to others.

Many students, in answering the judges’ difficult questions, would often respond by prefacing their arguments with “I think” or—my pet peeve—”I would argue.” The answers they gave to the judges’ questions were fantastic, but these openings made the arguments less effective than they could have been.

Why?  The job of an advocate before a court, either for yourself or for a client, is to argue your side to the court.  Your job is not to do the judge’s job or, even worse, your opponent’s.  When you respond to a judge’s question by stating “I would argue,” you are subtly telling the court that there is another side to the story.  Now, of course there is, but it’s not your job to make it—leave that for your opposition!

When you respond to a judge’s question by stating “I think,” you are now doing the judge’s job; he or she needs to carefully consider the entire argument you are making, but there is no need to remind this to the Court.  Saying “I think” tells the judge that you aren’t confident with your position, which opens the door to the judge looking for reasons to rule against you.

Why do law students, lawyers, and talented pro se litigants do this? Is it because they don’t know what they are doing?  In my opinion, just the opposite is true: those who say “I think” or “I would argue” know the law really, really well, and understand there are two (or more) sides to the story.  And that’s fine….just don’t advertise this to the court.

I’m guilty of this myself.  Not too long ago, I was speaking with an experienced foreclosure defense attorney, who was explaining to me one of his new arguments for fighting foreclosure.  The argument was straightforward, persuasive, and firmly rooted in the law, but I did the worst thing possible: I started arguing the other side.  This attorney stopped me and said it best: “You’re doing their job for them!”

Of course, in making your case, you need to have a good-faith basis in the law, either as a lawyer or pro se party.  Frivolous arguments run the risk of sanctions and, even worse, an angry judge.  Moreover, in preparing your case, you should always consider the opposing side’s potential arguments, so as to make your case stronger.  But, once that’s done, and you are before a court, stick to being an advocate, and only that.

This applies to any area of law, but I consider it especially important in foreclosure defense.  Foreclosure defense is still an emerging field and many these arguments are new to the courts.  Few of these defenses, as I tell my clients, are “slam dunk” wins.  For me, in many of my cases, I believe the law is 110% on my side, but I’m not naive enough to think that an opposing argument could not change a judge’s mind.  With this in mind, I try not to make my job any harder than it needs to be—and neither should you.