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.
The Supreme Judicial Court issued a decision this week on postforeclosure notices, and whether the failure to send one invalidates a foreclosure sale. In Turra v. Deutsche Bank, the Court ruled that the failure to send one of these notices does not void a foreclosure (disclosure: this was my appeal!). A full copy of the decision is below.
The law in question, G.L. c. 244, § 15A, requires a mortgagee to notify the local municipalities of a foreclosure thirty days after the sale has occurred. As the Court acknowledged in Turra, prior court decisions suggested that strict compliance with this law was required to perform a lawful foreclosure. The question in Turra was whether this was such a requirement, and whether a failure to comply with this step would invalidate a foreclosure. Turra determined this statute isn’t grounds for challenging foreclosures.
I don’t read Turra to suggest that a failure to comply with a postforeclosure notice requirement can never be used to challenge a foreclosure. If a homeowner or someone else is actually harmed from a bank’s failure to send such a notice, this violation may potentially be a consumer protection claim. Turra is clear, however, that such a violation, on its own, is not enough to be a foreclosure defense.
While Turra wasn’t the outcome I wanted, I’m pleased that the Supreme Judicial Court acknowledged the basis for my argument, and conceded that its prior caselaw suggested this was a plausible defense. The decision mentions two other decisions where courts came out the oppositie way on this question of law (one of these decisions was one of my other cases using this defense). You can’t win ’em all!
Turra has an important lesson of wisely choosing a foreclosure defense strategy. The Internet is filled with foreclosure defense hoaxes and myths that do struggling homeowners more harm than good in trying to save their homes. A review of unsuccessful foreclosure defense cases in state and federal court shows dozens of cases lost on the same arguments that courts routinely reject. My strategy in defending homeowners is to make arguments that have a basis in law, and reject arguments that don’t work. I reject the “kitchen sink” approach to foreclosure defense, where one raises every argument they can think of, irrespective of whether the claim has any hope of succeeding. It is far better, in my opinion, to stick with arguments that work, and try new approaches. While not successful in this case, my legal argument on these postforeclosure notices succeeded in several of my other cases, and helped keep a deserving family in their home. If you find yourself facing foreclosure, don’t rely on an Internet myth to defend yourself: contact an experienced attorney for assistance.
The Supreme Judicial Court has granted direct appellate review for one of my upcoming foreclosure defense appeals. Direct appellate review allows the Supreme Judicial Court (Massachusetts’s highest court) to hear an appeal pending before the Appeals Court (the appellate court that is responsible for initially hearing appeals). Direct appellate review is often granted for pressing issues of law that the Supreme Judicial Court believes is necessary to resolve as soon as possible.
This appeal is whether a mortgagee’s failure to comply with G.L. c. 244, § 15A (which requires notices to be sent after the foreclosure sale) invalidates a foreclosure. This law has been included as among the requirements for a Massachusetts foreclosure and trial courts are divided as to whether this is a valid foreclosure defense. Stay tuned!
Christmas came early for two of my clients this year. I’m pleased to announce that I won a foreclosure appeal of a post-foreclosure eviction case this week in the District Court Appellate Division. In this case, my clients were challenging the validity of the foreclosure in the eviction case, where the bank was attempting to remove them from the home on the grounds of a lawful foreclosure. The basis of this foreclosure appeal was the lender’s failure to comply with the terms of the mortgage, an effective foreclosure defense following the Supreme Judicial Court’s Pinti v. Emigrant Mortgage decision.
In this case, which went to a full jury trial, the Trial Court denied our motion for a directed verdict, a request a defendant makes to end a trial on the basis that the plaintiff did not meet their burden of proof. Simply put, because the bank never sent my clients the correct notice, the bank failed to perform a lawful foreclosure.
A foreclosure appeal requires an enormous amount of time: my records show I put over seventy hours of work into this case. The effort, however, was well worth it, and just in time for the holiday season! This is an important remindeer of the importance of hiring an experienced foreclosure defense attorney. for help with a foreclosure appeal: the complexity of these legal arguments (and extensive appellate requirements) makes an appeal a project that only an attorney should handle. If you are facing foreclosure and need to do a foreclosure appeal, contact me for a consultation.
I’m thrilled to announce that I helped a Massachusetts homeowner beat foreclosure, through one of my most successful (and hard fought) cases to date. My client was foreclosed in 2009, as a result of a predatory loan that forced him into default. I began representing this client during the bank’s post-foreclosure eviction (“summary process”) case against him, where the bank was attempting to evict him from the home on the basis of a lawful foreclosure. To help him beat foreclosure, I developed a foreclosure defense based on the bank’s failure to send him proper notice prior to the foreclosure.
The case was anything but a cake walk: we went through a full jury trial and two appeals before settling with the bank. The wait was worth it, however: my client has his foreclosure rescinded and a new loan modification, with a low interest rate and a $400,000 principle reduction. My client did his part to save his home: he continued to work hard, save his money, and prove to the bank that he could make a modified loan payment. In the end, both sides are winners: my client keeps his home, and the bank gets a fair return on its loaned money for the home (well in excess than the money it would have obtained from selling the home after an eviction of my client).
Is it possible to beat foreclosure? As I always tell homeowners: absolutely. I never promise that I can always succeed at a foreclosure defense, but I have found that many struggling homeowners have options to avoid foreclosure, in lieu of simply giving up and leaving their homes. But, as I always say, homeowners need to do their part to beat foreclosure, by proving they can make reasonable, affordable payments on their mortgage loan.
To beat foreclosure, a homeowner should seek the assistance of an experienced foreclosure defense attorney. While homeowners have the right to represent themselves in court (referred to as a pro se party) I have found that few homeowners are able to handle these tricky matters on their own. The risks aren’t worth it: get the help of a professional if you are facing foreclosure (homeowners with limited income should contact the Massachusetts Attorney General’s HomeCorps program for assistance in finding a volunteer attorney).
October promises to be a busy month for me. In addition to my trial court cases, I’ll be arguing two appeals on foreclosure defense cases this month. These cases include a “smorgasbord” of foreclosure law issues: the right of a loan servicer to send notices required for a lender, evidentiary issues regarding what a foreclosing entity must show to prove that it complied with the required foreclosure laws, and the application of recent foreclosure law cases on other pending, related matters.
In an appeal, a party asks the appellate court to review the decisions made by the lower court (the “trial court”). An appeals court does not take evidence from witnesses or otherwise rehear the case but rather, decides whether the lower court did their job correctly. An appeals court decides whether the judge properly applied the law, such as whether the judge gave proper instructions to the jury during trial, or properly considered certain matters of evidence.
In one of my appeals, I’m representing the appellant (arguing that the lower court got the decision wrong); in the other, I’m representing the appellee (arguing that the lower court got the decision correct). Both cases involve tricky questions of law and I plan to work hard on each.
Appeals require an enormous amount of time and resources: I can easily spend 50-75 hours for an appeal and the final written product can total hundreds of written pages. The rules for appeals themselves are tricky; I know many excellent lawyers who purposely avoid appeals because of these requirements! An appeal requires the preparation of a brief (a fifty page legal document explaining the reasons why the lower court was right or wrong) and an oral argument (a 15-20 minute presentation before the judges).
In general, I have mixed feelings about people doing their own cases at the trial level. For appeals, my advice is much more clear cut: don’t do an appeal if you are not a lawyer. Appeals are too much work and too complex for someone without a legal education and training to try on their own. If you are considering appealing a case, contact me for a consultation.
I’m pleased to announce that I settled a post-foreclosure “Ibanez” case this week. I represented a former homeowner who had been improperly foreclosed due to the Supreme Judicial Court’s decision in U.S. Bank v. Ibanez, which invalidated thousands of foreclosures across Massachusetts. My client was a former homeowner, and the entity who foreclosed her home lacked a proper mortgage assignment at the time of foreclosure, making the foreclosure void. As I have written before, this has happened to thousands of homes across Massachusetts during the recent foreclosure crisis (a reason why the Massachusetts Legislature is presently considering a foreclosure title clearing bill).
My client had been included in a lawsuit brought by the current owner of the foreclosed home and the lender who had done the void foreclosure. After a lengthy court case, we reached a settlement with the lender agreeing to pay my client a cash settlement in exchange for her remaining interest in the home.
The settlement did not give my client a free home, nor did it make her rich. It did, however, provide her with compensation for the lender’s disregard of Massachusetts foreclosure law, something that has become all too common in recent years.
These “Ibanez” problems continue to exist today, and have no easy solution. If you find yourself in such a situation, contact me to see if I can be of help.
The Boston Globe reports that foreclosures in Massachusetts are on the rise, increasing as much as 49% from July 2014 to July 2015. Because Massachusetts is a non-judicial foreclosure state, where the lender does not need to go to court to foreclose, these filings generally represent the beginning of the foreclosure process for Massachusetts homeowners. A major reason for the increase in these filings has been changes to Massachusetts foreclosure law, which has caused lenders to halt foreclosures to comply with these requirements.
While sooner is always better in avoiding foreclosure, Massachusetts homeowners at any stage in the process should consult an attorney to see if help is available.
I’m pleased to announce that I settled a foreclosure defense lawsuit last month, resulting in my client obtaining an affordable loan modification and a rescission of the foreclosure. My client had been foreclosed and was only days away from being physically removed from the home. I stopped the move-out by winning a temporary restraining order (“TRO”) from the court, which later became a preliminary injunction, which prevented the bank from doing anything to enforce the foreclosure for the duration of the case.
After two years of litigation in court, the case is finally settled, with my client accepting a loan modification in exchange for a court approved agreement to eliminate the foreclosure.
My client, like others I have helped avoid foreclosure, didn’t get a free home
. Rather, she received an affordable loan modification: my goal in every foreclosure defense case.
Are you facing foreclosure? Contact me
for a consultation.
I’m pleased to write that I recently won a decision from Plymouth Superior Court allowing me to raise foreclosure defense claims against a servicer and lender who claimed to have performed a lawful foreclosure against my client. These claims resulted from the servicer’s repeated refusal to consider my client for a loan modification
, despite my client following up with the requested paperwork requests for over nine
months. I raised claims under Massachusetts’s Consumer Protection Law (“Chapter 93A”), promissory estoppel, and breach of contract.
The battle is far from over. Here, the Court has merely allowed me to proceed with litigating these claims; it doesn’t mean I have won . . . yet. However, I am pleased to get this case off the ground. Often, one of the toughest parts of foreclosure defense is convincing a court that you have claims worth pursuing. I can’t say whether my lawsuit will be successful, but I’m looking forward to giving my client her day in court on these important matters.
Are you facing a foreclosure related to a loan modification denial? Contact
me right away for a consultation.