Attorney Sherwin Named as a 2018 Massachusetts Super Lawyers Rising Star

I’m proud to write that I’ve been named as a 2018 Massachusetts Rising Star by Super Lawyers.  Rising Star candidates are limited to no more than 2.5% of lawyers in Massachusetts and go through a nomination, peer review, and independent research process.

As described by Super Lawyers on their website:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

I’m very proud and grateful for this recognition.

Coincidentally, this recognition occurred right around the time that I celebrated my fifth year in solo practice.  What a ride it has been!  While it is a real honor to be included with Super Lawyers, I’m even prouder of the many successes I’ve had in in my practice areas of real estate litigation.

If I can be of assistance to you with your legal problems, contact me.

Fighting Foreclosure: Lessons from a Massachusetts Federal Court Case

A recent decision from the U.S. First Circuit Court of Appeals provides an important lesson on fighting foreclosure and the importance of properly preparing such a defense.  The case, Klimowicz v. Deutsche Bank, is included below.

Background

Massachusetts is a non-judicial foreclosure state.  Unlike judicial foreclosure states, such as New York and Vermont, a lender does not need to bring a court case to foreclose.  Rather, a lender can foreclose through a series of notices and publications.

In Klimowicz, the homeowner went through a non-judicial foreclosure and the lender, Deutsche Bank, became the record owner of the home following the foreclosure sale.  Deutsche Bank then brought an eviction (“summary process”) case against the former homeowner for possession of the property.

Massachusetts permits defendants in a post-foreclosure eviction case to raise defenses against the validity of the foreclosure sale.  If successful, a homeowner can defeat a bank’s right to possession of the property.  In this case, the homeowner did just that, and attempted to argue that the foreclosure was void due to problems with the mortgage assignment.

The homeowner lost this eviction, and failed to appeal this case.

Federal Court Lawsuit 

Following this unsuccessful eviction case, this homeowner continued fighting foreclosure through a federal court lawsuit.

By way of brief background, federal courts are permitted to hear state court matters under specific circumstances, including what is known as diversity jurisdiction: where the parties live in different states.  Diversity jurisdiction is common in foreclosure defense cases, as the homeowner and bank tend to be in different states.

In this case, the homeowner attempted to pursue her foreclosure defense case in federal court, by essentially arguing the same claims raised in her eviction case.  The federal court dismissed this lawsuit, and the appeals court agreed that the homeowner was not entitled to pursue this federal court action.

The main basis of this dismissal is a federal law concept known as the Rooker-Feldman Doctrine.  In a nutshell, this doctrine prevents federal courts from hearing cases brought by parties who have lost in state court.  In other words, as the homeowner had lost her case in the state eviction case, she was not able to pursue it again in federal court.  If the homeowner had wished to continue fighting foreclosure, she needed to have appealed her eviction case, rather than starting a federal court lawsuit.

Although not discussed in Klimowicz, another basis for denying this federal court lawsuit was res judicata.  This legal defense prevents a party from getting a “second bite at the apple” by bringing a claim that was decided (or could have been decided) in a prior claim involving the same parties.

Practical Implications

Klimowicz has an important lesson for homeowners fighting foreclosure: it is incredibly difficult to have a second chance in defending against a foreclosure, if the homeowner is unsuccessful in their first court case.  There are many, many similar cases like this where courts have denied homeowners their day in court because their foreclosure defense claims (no matter how strong or compelling) were, or could have been, raised before.  There are few “second chances” to defend against a foreclosure.

Conclusion 

If you need assistance with fighting foreclosure, contact me for a consultation.

17-1916P-01A

What Is Needed for a Declaratory Judgment in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision last week on what is needed for a declaratory judgment.  The decision comes from a foreclosure law case, but just as easily applies to other areas of law.  The decision, Wells Fargo v. Mulvey, is included below.

What is a Declaratory Judgment?

A declaratory judgment, simply put, is a court order that resolves a legal uncertainty.  Pursuant to G.L. c 231A, § 1:

The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not . . .

Declaratory judgments are often requested when the desired remedy for a case is more than simply money.  For example, in the context of foreclosure defense, money alone will not help someone who wrongfully lost their home to foreclosure . . . that party wants the home back, not money.  In such a case, the party can request a declaratory judgment stating that the foreclosure was wrongful, which has the full force of law.

For real estate cases, declaratory judgments are often recorded in the land records, which becomes part of the property’s title.

Overview of Case

In this case, Wells Fargo requested a declaratory judgment as to whether it could perform a non-judicial foreclosure against a homeowner.  The bank was concerned that its mortgage did not include the necessary language permitting such a foreclosure.

Importantly, the home owner in this case never filed an answer or response to the bank’s motion.  The bank sought a default judgment and requested what it asked for: a declaratory judgment allowing it to foreclose.

What is Needed for a Declaratory Judgment?

Not so fast, said the Court!  Although the homeowner never responded to the lawsuit, the court, on its own, declined to give the bank a declaratory judgment.  The reason for doing so answers this important question: what is needed for a declaratory judgment?

A declaratory judgment requires there to be an actual controversy for a court to resolve.  Here, because the bank presented no evidence to conclude that its right to foreclose against the homeowner was in question, this was not a matter appropriate for a declaratory judgment.

Practical Implications

As someone who often requests declaratory judgments in my cases, this decision is an important reminder of the need to properly prepare such lawsuits.  Failure to do so can result in dismissal of the case.  This decision is clear that a court can do this entirely on their own, even if the opposing party never raises this concern.

If you find yourself involved in a legal dispute concerning a declaratory judgment, contact me for a consultation.

Wells Fargo v. Mulvey

Sherwin Law Firm Succeeds in FHA Foreclosure Defense Case

Last week, I had a successful outcome in a FHA foreclosure defense case.  My client was facing a post-foreclosure eviction and I raised a successful defense regarding the lender’s non-compliance with the foreclosure requirements for these types of loans.

FHA Foreclosure

A Federal Housing Administration (“FHA”) loan is a loan guaranteed by the federal government and designed to help home buyers who would not meet the traditional lending requirements for purchasing a home.  Because the federal government insures these loans, lenders are more willing to offer loans to potential buyers who might otherwise be considered a high risk for lending.

FHA foreclosures require lenders to comply with many more requirements than those associated with a standard mortgage agreement.  Lenders of FHA loans must review borrowers for loan modifications and other loss mitigation opportunities and, in most circumstances, have a “face-to-face” meeting with the borrower prior to foreclosure.

Strict Compliance Is Required for FHA Foreclosures 

Massachusetts is a non-judicial foreclosure state, which allows lenders to foreclose without bringing a court case against the borrower.  This is in contrast to states like New York and Vermont, where a lender needs to file a lawsuit against a borrower to foreclose.  Here in Massachusetts, a lender must strictly comply with the applicable foreclosure requirements.  Failure to do so will make the foreclosure void.

The Appeals Court has extended this strict compliance requirement to FHA foreclosures.  A lender’s failure to comply with the “face-to-face” requirement will be fatal to a foreclosure’s validity.

While I am aware of no case on this, I believe that this type of foreclosure defense would equally extend to the other FHA foreclosure requirements, including reviewing a borrower for a loan modification.

For this reason, borrowers who are facing FHA foreclosures often have viable defenses in these cases.

Outcome of Case

In this case, the lender alleged to have performed the required “face-to-face” meeting, but only after it accelerated the mortgage loan (where the lender demands the entire loan balance prior to foreclosing).  Because this meeting came after, and not before, the loan acceleration, the lender failed to comply with this foreclosure requirement, making the foreclosure void.

While it is sometimes obvious that the lender made an error with the foreclosure requirements, such mistakes are not always clear.  Here, this foreclosure defense required a strong understanding of the non-judicial foreclosure process and these FHA requirements.

Conclusion

The benefits of having an experience foreclosure defense attorney is essential in dealing with one of these cases.  If you need assistance in defending against an FHA foreclosure, contact me for a consultation.

Firm News: Sherwin Law Firm Moves to Charlestown

Starting July 1st, my firm will be moving to Charlestown, Massachusetts (only several blocks away from my current office).  My new office has plenty of parking and facilities that will help me continue to best serve my clients, and hopefully open up new opportunities for me in years to come.

It was a blast to have worked in Somerville for the past five years.  Luckily, I won’t be far away, and look forward to staying active in this wonderful city.

Here’s hoping your summer is off to a great start!

 

Firm News: Client Review from a Successful Foreclosure Defense Case

This week, I received a client review from a homeowner I represented in a successful foreclosure defense case.  The client wished to stay anonymous, but gave me permission to use this review here:

Adam Sherwin is exceptional! Patient, kind, thorough and competent. We had contacted our lender on several occasions to inform them of unfortunate and serious disabling health conditions that had caused my husband and me to fall behind on mortgage payments. We were assured that our modification was in process. We made consistent monthly payments as agreed. However, for some reason, we were informed that the agreed upon modification was not valid. We had carefully kept all notices from the mortgage lender. We worked closely with Adam for more than a year on every step of re-negotiation and reinstatement of our original agreement. Adam consistently informed us of progress, he listened carefully to our thoughts, concerns, and perspective. He was timely, persistent, clear, careful and detailed in every aspect required. We are deeply grateful. The modification was approved. We are in our home and we are thankful.

As discussed in this review, my client had difficulty obtaining a loan modification with her lender, which she qualified for and did everything asked of her to receive this assistance.  Unfortunately, as with many loan modification applications, the lender made a mess of this process by denying her application for inaccurate reasons.

Through the filing of a lawsuit and negotiation with the lender, this turned out to be a successful foreclosure case: the client has kept her home through an affordable loan modification!

These are the kinds of cases I am especially proud of, where I’ve been able to help clients through difficult legal matters, and get them the help they need.

If you find yourself in need of help with a foreclosure defense case or other legal matter that I handle, contact me for a consultation.

Do I Need A Foreclosure Attorney?

Homeowners facing foreclosure in Massachusetts often ask themselves: do I need a foreclosure attorney?  As an attorney who has helped hundreds of Massachusetts homeowners facing foreclosure, let me discuss some of the ways that a lawyer can assist with the foreclosure process.

Applying for a Loan Modification or Short Sale

A lawyer is not always needed for a loan modification or short sale application.  If a homeowner is comfortable completing the required paperwork and staying on top of the process, a homeowner can do this on their own.

However, many homeowners find these applications to be overwhelming, which often require extensive paperwork and communication with the loan servicer.  For many homeowners, a lawyer (or reputable loan modification professional) can be a huge help with this process.

Stopping a Foreclosure Sale

If a homeowner is facing a scheduled foreclosure sale, a foreclosure attorney is generally needed.  While a homeowner can attempt to represent themselves in court, the process for doing so is especially overwhelming and complicated for a non-lawyer.  I’ve rarely seen a self-represented litigant succeed in fighting a foreclosure.  Massachusetts foreclosure law is complicated, and a foreclosure attorney is generally necessary for developing an effective foreclosure defense strategy.

Facing a Post-Foreclosure Eviction 

After a foreclosure sale in Massachusetts, the bank (or the third-party buyer of the foreclosed property) is required to evict the occupants of the home.  Per Massachusetts law, a homeowner is allowed to challenge the foreclosure’s legality as an eviction defense.  If a homeowner wishes to pursue such a defense, having a foreclosure attorney is critical.  An experienced foreclosure attorney will know what defenses to raise, the information that is needed to pursue such a defense, and how best to present such a case before a judge or jury.

As I have written before,  even if the homeowner does not want to stay in the home, a foreclosure attorney can still be helpful.  A foreclosure attorney can help the homeowner obtain the time they need to leave the property and avoid any potential liability from the foreclosure sale.

Conclusion 

If you are facing foreclosure in Massachusetts, it is worthwhile to speak with an experienced foreclosure attorney.  If you are in need of such help, contact me for a consultation.

Advice for Choosing a Lawyer: Don’t Tell Me Just What I Want to Hear

Choosing a lawyer can be a difficult process.  Legal matters often require you to put trust into a person who you may only know through a website or referral.  For anyone choosing a lawyer, there are many things one should keep in mind when making this choice.  Here, I want to focus on what I consider to be an essential consideration in choosing a lawyer: finding someone who won’t tell you only what you want to hear.  This applies to all areas of law, but especially the practice areas that I cover.

Good Legal Advice Is Not Always the News You Want to Hear

When I meet with potential clients, it is not uncommon to have people ask me for a guarantee that they will win their case . . . regardless of the circumstances.  Sometimes, I suspect that the potential client simply wants an attorney to tell them what they want to hear.  Admittedly, this can be tempting, when the potential client is sympathetic and trying to do the right thing.

Of course, if the potential client has a strong case, I’m happy to tell them so and get to work.  But, if the case is not strong, it is important that the potential client knows this before making the decision to go forward.

In my practice, I follow a simple rule: good legal advice needs to be accurate and honest.  Nobody benefits from following a legal strategy that is doomed from the start and filled with unrealistic expectations.  When choosing a lawyer, look for someone who will tell you what you need to hear, and not only what you want to hear.

Be Wary of Taking Legal Advice From Non-Reputable Sources

 If it isn’t obvious, I am a big fan of using blogs and online resources for informational purposes.  I hear, on a regular basis, from many clients and lawyers who have benefited from my resources, which I’m proud of.  This information,  however, comes from years of experience and proven results.

The same isn’t true for other content floating around on the Internet.  Before believing something is true, take the time to learn where the content comes from.

Conclusion

Choosing a lawyer is an endeavor that should not be taken lightly.  Selecting a lawyer who simply tells you what you want to hear can have disastrous consequences down the road.  Picking an attorney with a reputable background and real understanding of the law is the best way for getting the legal help you need.

Sherwin Law Firm Files Brief for Lost Promissory Note Appeal

Last week, I filed a brief for a pending appeal in the First Circuit Court of Appeals concerning a lost promissory note.  This appeal concerns a critical issue of Massachusetts foreclosure law: the need for a lender to have a borrower’s promissory note to foreclose.

Overview of a Promissory Note 

A promissory note is a legal term for a written promise to pay a definite sum of money.  Often referred to as simply a “note”, this is a legal contract that a party signs, promising to repay a sum of money.  In the context of real estate, a promissory note is signed by a lender and a home buyer, where the home buyer agrees to repay the money borrowed to purchase the home.  While it is common for homeowner to refer to “paying my mortgage” when making payments on a home loan, a homeowner is actually making payments towards the promissory note (a mortgage, in contrast, is a security agreement, allowing a lender to foreclose if the debt is not repaid).

Most promissory notes for home loans are negotiable instruments, a legal document guaranteeing the payment of a specific amount of money at a set time.  The critical importance of this is negotiability: the right of a mortgage lender to sell the promissory note.  Mortgage lenders generally want to sell a mortgage loan as quickly as possible, for the purpose of maximizing their return on investment.

“Hold the Note” Requirement for Massachusetts Foreclosure Law 

Massachusetts law requires a foreclosing entity to “hold the note” at the time of foreclosure.  This comes from Eaton v. Federal National Mortgage Association, a landmark Massachusetts case that made this a requirement for the foreclosure process.  A foreclosing entity does not need to have physical possession of the note; it is permissible for an agent (such as the loan servicer) to hold it on the note owner’s behalf.

A home owner who wishes to see their promissory note can generally request it from their lender through a qualified written request.  Moreover, Massachusetts law requires a loan servicer to certify in writing to the borrower that they own the loan.  A foreclosing entity must also record an affidavit in the land records certifying that they own the note.  To the best of my knowledge, there is no requirement that a  foreclosing entity must show the actual, physical note to the borrower prior to foreclosure.

What Happens When a Promissory Note is Lost?

If a promissory note is lost, the lender has the option of doing a lost note affidavit.  The law for this, G.L. c. 106, § 3-309, only allows such an affidavit if the lender (among other things) previously had possession of the note and cannot obtain the note through a diligent search.

However, even with the the lost note affidavit law, a missing promissory note is a headache for a lender attempting to foreclose.  For example, a 2017 Land Court decision held that a lender could not foreclose on the basis of a lost note affidavit due to problems arising from the change of the servicer for the loan.

In my appeal, I challenged whether the foreclosing entity made an adequate showing for each requirement of the lost note affidavit law.  This is an area of law that continues to evolve and be relevant to matters of foreclosure defense.  Stay tuned . . .

Conclusion 

If you need help avoiding foreclosure, contact me for a consultation.  The benefits of having an experienced attorney on your side can make all the difference in getting you the outcome you need.