For the most part, this subsequent change has come to light from uncovering key evidence that a portion of the real estate industry has been using deceitful lending practices in many cases. Due to this evidence, the judicial system that once favored foreclosure action, is now siding with homeowners instead.
Both attorneys and homeowners are making the most of this change in the court system and are therefore challenging the foreclosure process itself in a number of ways.
Here are some of the most commonly used foreclosure defenses and how to address them in a court of law.
Raising a Defense to Home Foreclosure
In order to properly raise a defense to the process of foreclosure, it’s necessary to present the issue to a judge. This action is automatic concerning about half of all U.S. states, whereby most foreclosures are generally achieved through judicial foreclosure orders and civil lawsuits.
With regards to the remaining states, those foreclosures usually occur outside of court (nonjudicial foreclosures), which means there’s no automatic way to raise a legal challenge. For these particular states, in order to have your defense ruled by an actual judge, you must file a legal lawsuit that alleges that your home’s foreclosure is illegal due to some reason and request that the court postpone the foreclosure process pending the review of your case in court.
Mortgage Terms and Unconscionability
Through the years, lawyers have utilized a branch of law known as ‘equity’ in order to produce a variety of approaches to defending homes against the process of foreclosure. This branch of law concentrates on fairness concerning any situation wherein a legal statue isn’t providing enough relief. Overall, it typically isn’t enough to just complain that your foreclosure isn’t fair. Instead, it’s more effective to offer a particular justification regarding your position that was once recognized to the judicial system.
One key justification is a concept referred to as ‘unconscionability’, which means that your mortgage terms, and/or the circumstances that surround it, are so blatantly unfair that it literally shocks the judge’s conscience.
Foreclosing Party Failed to Properly Follow the Correct Protocol
Sometimes, the foreclosing party fails to properly follow the requirements for state procedures concerning a foreclosure. In such a case, it may be possible to challenge the action of the foreclosure. If you are successful, the judge will readily issue an order that requires that the foreclosing party must start over from scratch.
Nearly all judges will overlook mistakes that are seemingly inconsequential, including a misspelled name. Likewise, if the mistake of the foreclosing party doesn’t really cause any harm, perhaps it’s not even worth fighting about. As a general rule, more severe violations will elicit a more severe response from the legal system.
Active Duty Servicemembers
If you are actively serving in the military, the SCRA (Servicemembers Civil Relief Act) provides homeowners unique protection. More importantly, if your mortgage was initiated prior to serving as an active servicemember, your foreclosure has to take place in a court of law even if your state’s foreclosures traditionally happen outside of court. Therefore, if the process of foreclosure starts while you’re serving on active duty, you’ll get a postponement of the foreclosure proceedings by simply requesting it in writing from the court.
Foreclosing Party is Unable to Prove They Own the Mortgage
Only the owner of the loan or a person acting on behalf of the owner can bring upon action. If your mortgage has been bought and sold by a number of various banks, investors, and lenders, trying to prove who owns the mortgage is often difficult regarding the last holder. The correct documentation of the mortgage owner has to be represented, but is usually very hard for the party trying to foreclose to do so.
The Servicer of the Mortgage Made a Severe Error
A mortgage servicer, or a party who contracts with other financial lenders or banks to obtain and distribute mortgage payments along with enforcing the mortgage terms, makes mistakes quite often when working with borrowers. In fact, one study showed that as many as 1,600 plus Chapter 13 bankruptcy cases, most of the claims that were submitted by the owners of mortgages contained mistakes.
It’s quite possible to challenge a foreclosure due to errors, some of which may include:
• Imposing unusually high fees or any fees that aren’t authorized by the owner of financial lender
• Submitting your mortgage payments to the wrong people
• Significantly exaggerating the amount you need to pay in order to restore your home mortgage
Any errors regarding the amount you’re required to pay in order to reinstate your home mortgage are particularly serious. Why? This is primarily because an exaggerated amount could rob you of using the main available remedy to keep you in your current home. Use a good NYC Bankruptcy Law Firm to help you sort out all the legalities behind your home mortgage and the possibility of foreclosure so you can ultimately keep your home.
Foreclosure is a serious issue in the United States. Each year, millions of people go through the foreclosure process, and hundreds of thousands of citizens have their homes repossessed. Many of those people suffer such an outcome because they do not seek assistance early in the process. A foreclosure does not have to be the end result of hard times in the New York area. A struggling homeowner can take one of several steps to ensure that he or she has a fair opportunity to keep the home. The following are some foreclosure prevention solutions that a reliable attorney can help a homeowner to request:
A consumer can request a deferment without securing an attorney’s help, but his or her efforts may not be effective. Mortgage companies often make it difficult for consumers to contact the financial department. A seasoned attorney will know the right numbers to call to bring attention to the situation ASAP. A deferment is a mortgage payment extension that allows the homeowner additional time to pay the loan. The principal does not accrue interest during the deferment period.
A forbearance is similar to a deferment in that it allows a homeowner to have additional time to pay loan proceeds. However, the difference between a deferment and forbearance is that the forbearance will continue to accrue interest for the duration of the forbearance period. Positive and negative elements exist for deferments and forbearance.
A loan modification is a special arrangement that allows the homeowner to have his or her loan redefined. The mortgage company will create a brand new loan agreement that the consumer can easily understand. Some loan modifications have strict requirements connected to them. For example, a homeowner must complete a long application to be considered for the modification. That person will need to gather all necessary paperwork to prove that a dire need prompted the request for a loan modification. A sudden change in circumstances can qualify a homeowner for loan modification. The person will have to prove that he or she is suffering with a hardship that affects his or her ability to pay bills.
A change in one’s household size could qualify that person for assistance. The loss of a job, the birth of a child, or a sudden disability could be acceptable reasons that a mortgage company may agree to a loan modification. The homeowner would have to produce supporting documentation for the request to be granted. Additionally, the homeowner would have to complete an extensive application for a loan modification. Getting an attorney to assist with requesting the paperwork and completing the paperwork is advised. The homeowner will want a lawyer because a lawyer can speed up the process. Many times, banks take homeowners through slow processes that seem as if they will never end. They may tell the homeowner that they never received the completed loan modification request. They may take weeks or months to send the paperwork to an interested party. An attorney can make the mortgage company move quickly using a number of strategies.
A short sale is something that a homeowner can do to avoid foreclosure if he or she is not planning to keep the house. The short sale is the sale of a home for an amount that is less than the balance that the borrower owes on the property. The bank has to agree to such a sale before the homeowner can conduct it. If the bank accepts the arrangement, then the borrower will be free from debt and free from a foreclosure blemish on his or her record. Instead, the mortgage company will accept the short sale amount. Using an attorney for such a complex process is necessary.
Deed in Lieu
A deed in lieu is another procedure that a homeowner may consider conducting with the help of an experienced attorney. A deed in lieu is a movement that a person makes when all other solutions seem impossible. The homeowner agrees to return the property to the bank by transferring the ownership to it without waiting for a public auction or a forced foreclosure. The bank may settle the debt if the borrower conducts the transaction with the help of an experienced attorney.
Our New York law firm can assist a homeowner with the woes of a possible foreclosure. We can help such a person to develop a tailored plan that will keep him or her in the home. Our goal is to see people survive and not have to deal with seven to 10 years of a tarnished credit score. We would rather see the person thriving inside of the home that he or she purchased as a dream fulfillment. Interested parties can call and schedule an appointment today.
Standing to sue
The lender bringing the foreclosure action must be able to show that it is the proper party for bringing the lawsuit. In many cases banks designate Mortgage Electronic Registration Systems (MERS) to bring the action. Often the paper trail going to MERS and record keeping by MERS is insufficient. If MERS doesn’t have a continuous paper trail showing its standing to sue, the foreclosure suit can be dismissed.
The authenticity of the bank’s documents has frequently been called into question. Documents and motions are often supported by affidavits and certifications of individuals purporting to have personal knowledge of the documents or facts. In fact, they may have started working for the lender in 2008, and the document was executed in 1998. It’s impossible for that individual to have personal knowledge of what they’re certifying or attesting to. They were still in high school.
Date of MERS trust
Mortgages are often assigned to a MERS in a very large trust. That’s called a securitization pool. That trust was created on a certain date though. There are times when the assignment of the mortgage doesn’t fit into the time that the trust was formed. The assignment of the mortgage could precede the actual creation of the trust. If the trust had not been created, then the mortgage could not possibly have been assigned to it.
Chapter 13 bankruptcy
This is known as a reorganization bankruptcy, and you’ll be required to bring the payments on your home current within three to five years. It brings any foreclosure actions to a halt though. In that interim, you’ll be making two payments. The first payment will be to your lender, and the second payment will be made to your bankruptcy trustee. A Chapter 7 bankruptcy won’t permit you to do this. With a Chapter 13, you might be able to remove any second mortgages or home equity lines of credit too. That trustee represents neither you nor your creditors. They represent the bankruptcy estate. The trustee is ultimately supervised by the U.S. Department of Justice, and is required to follow certain guidelines. The money paid by you to the trustee is used to pay your delinquent mortgage payments and debts of other creditors. When you file a Chapter 13 bankruptcy, the lender is not permitted to refuse your payments. So long as you make your mortgage payments and your payment to the trustee, the law permits you to keep your home.
Chapter 7 bankruptcy
Some people can’t afford the terms of a Chapter 13 bankruptcy, so they proceed in the alternative with a Chapter 7 bankruptcy which also stops the foreclosure proceedings. They’re able to extinguish significant debt with the Chapter 7, and when they’re discharged from the Chapter 7 proceeding, they’re in a far better position to seek a loan modification with their lender. You’ll obviously be a better candidate for modification, and you’re in a better position to pay a modified loan too.
Other than bankruptcy, most foreclosure defenses don’t ultimately stop the foreclosure lawyers in their tracks. Courts have generally been very forgiving to lenders, and permit them time to produce documents they lack, amend their lawsuits or otherwise cure evidentiary defects. Because the bankruptcy stay stops foreclosure proceedings, it’s the most effective means of stopping a foreclosure. It opens several different avenues of relief that might not otherwise be available. If you want to keep your home, our firm may help you keep it. By using remedies available through the bankruptcy courts like reduction of the principal mortgage amount, interest rate and loan terms, our firm has successfully helped victims of our current economy keep their homes. If you believe you’re going into foreclosure shortly, or if you’re in foreclosure now and want to continue living in your home, call us now. We may be able to keep you there.
When a person signs paperwork with a lender borrowing the funds to purchase property, they commit to paying off that property as per the terms of the agreement. Mortgage payments are listed in the paperwork, including the due date, the interest rate of the loan, and the amount owed to the lender. When the borrower ceases making payments to the lender, the lender is legally able to take possession of the property after certain guidelines are met. When a homeowner is faced with foreclosure, it’s a devastating money. Many homeowners assume a foreclosure notice from the bank is a final decision. Their home is no longer their own home, and they must leave immediately. They have no options. This is not true, especially when it’s related to foreclosure fraud.
Foreclosure fraud is a complex situation. It typically involves a bank or lender that fraudulently provided loans to consumers knowing they’d be foreclosed on before much longer. Every state has different foreclosure laws in place to protect lenders and homeowners, but most adhere to the same federal regulations.
Examples of foreclosure fraud include lenders who conceal subprime mortgages as conventional mortgages as a way of making more money in little time. Foreclosure fraud might occur when a lender doesn’t take into consideration the fact that a buyer cannot actually afford to make the monthly payments on a home loan. Lenders make this decision based on how much money they make from the transaction upfront. It might seem a lender doesn’t want a borrower to default on their mortgage, but many make so much money upfront they don’t worry about foreclosure since they can make the same deal with more borrowers as a result.
Foreclosure fraud can even entail modification programs offered by lenders. When a subprime mortgage is concealed as a conventional mortgage, borrowers might rely on modifying their mortgage for the opportunity to continue to afford their home. These programs are sometimes more expensive and more likely to result in foreclosure.
How does Foreclosure Fraud Defense Work?
When a bank or lender works to foreclose a mortgage, they must have the appropriate paperwork. They must prove the loan was defaulted on, no paperwork was filed stating any agreements between the lender and the borrower to work out their differences, and they must adhere to the rules stated by the federal government.
It’s a complex legal issue that often takes months to work out. The recent housing crisis has caused many companies to result in foreclosure fraud, which means they are kicking people out of their own homes on a falsified basis. Foreclosure fraud includes submitting illegal documentation, providing false documents to homeowners, and illegal means to intimidate homeowners into paying for things they that aren’t necessary to stop the foreclosure process.
A Foreclosure Fraud Attorney is familiar with the long, complex rules associated with foreclosure. Legal foreclosure proceedings begin with a notice of delinquency. From there, they ask the borrower to work with the lender to correct the situation. Foreclosure fraud scams might include anything from bullying, demands for payment, and an unwillingness to work with the homeowner. It’s helpful to know the laws regarding foreclosure in your state, as they’re the laws that are going to make your life easier.
If you’re in the process of foreclosure and not sure what to do about it, it’s time to learn what rights you have, what legal options are available to you, and how you can stop the process. There’s too much at stake not to take advantage of the legal expertise and knowledge of a foreclosure fraud attorney. Foreclosure fraud occurs all over the country, and it’s been occurring more than ever since the housing crisis. Don’t let your lender or a secondary scam artist take advantage of your financial situation when you can’t pay your mortgage. Call an attorney for help reviewing your mortgage documents and the stipulations and fine print. Foreclosure fraud is illegal, and you have a right to take legal action against the person or entity committing mortgage fraud against you. Protect your home and your finances with an experienced attorney.