Posts published in March 2019
Documentary Clearing House and Associates ("DCH") has pioneered a new strategy for attorneys who defend foreclosure cases. To date, DCH has produced three motions to assist attorneys implement the new strategy.
Viewed from afar, the short, unpleasant history of foreclosure during the last three years presents a sorry spectacle. Far too many judges in foreclosure proceedings have stopped behaving like judges and instead become advocates for the foreclosure mills. The parties that foreclose continue to ignore and avoid alternate dispute resolutions.
The government's efforts to stem the tide of foreclosure and encourage alternate dispute resolutions have been feckless and dissipated. Most people being foreclosed have not discharged their legal obligation to defend themselves. Instead, many if not most foreclosure cases go to summary judgment uncontested. The resulting assault upon American homeownership has been systemic and overwhelming.
Many homeowners in foreclosure believe that legal representation is unaffordable. Unable to make monthly mortgage payments, they conclude that they have no means to hire a lawyer. The public sector which defends people who cannot afford a lawyer has been unable to mount an effective counter- response to foreclosure.
Too much time has been spent on tactics; too little time has been spent on strategy. Foreclosure defense is preoccupied with finding omissions, defects and deficiencies. The tactics tend to show that a rule has been violated.
Too many courts are inclined to forgive and forget. The courts dream up notions such as finding the non-compliance merely "technical" or that the foreclosure is within the "four corners of the loan agreement".
DCH is calling for a change in strategy. What is needed is a new strategy which is effective and affordable. DCH's new motion addresses both these requirements.
- Employ generic defenses to make defense against foreclosure affordable to most of those facing foreclosure.
Instead of a case specific defense custom designed to meet the unique questions of fact and law unique to each case, a defense which most clients confronted by foreclosure can ill afford, DCH is providing pleadings and discovery where one size fits all. DCH is creating generic defenses. The foreclosure mills have declared war on defaulting mortgagors. The cost effective response to litigation filed by the foreclosure mills is counter-measures from a defense mill. DCH provides the bullets for attorneys to fire. By putting foreclosure one the assembly line, every client can afford to retain his or her own hired gun in a foreclosure battle..
There is a conundrum caused by the litigation protocol used in defense litigation to represent clients in foreclosure: It is effective and counterproductive at the same time. Lawyers are taught to approach each case as unique and upon its own merits. We are also taught to employ tactics to complicate the other side's case and discover damaging information. Lawyers also try to use discovery to find errors and omissions in the other side's case. A proficient litigator wages war upon the other side with motions, depositions, production of documents, interrogatories and requests for admissions and stipulations. Attorneys are taught that litigation cases are won and lost in pretrial preparation. Many believe that a successful outcome is predicated upon pre-trial strategy. Such tactics are p[art of the litigation protocol and have over time proven themselves to be effective and productive.
If you are in potential danger of having your home repossessed by your lender through foreclosure, then you are not alone. Over 1 million U.S. homes have been retaken by lenders since 2008, and foreclosure activity is believed to be picking up in 2012. As homeowners begin to face the reality of losing their homes, many are left wondering about what their options are when it comes to the foreclosure process. We can simplify the options a great deal to help you see the bigger picture.
Before we get there, we should get on the same page as far as defining the term "foreclosure". The basic definition is the failure of the homeowner/borrower from fulling the payment obligation to the lender. By defaulting on the loan terms, it allows the lender to declare the terms of the contract breached, and provides an avenue for the lender to acquire the home that served as security for the money borrowed to purchase the home originally. In simpler terms, the lender will try to recoup their loss from the loan default by taking ownership of the home or property. Foreclosure itself is the process by which lenders can acquire property from the original owner.Foreclosure sale is the conclusion of the foreclosure process, and when the property ownership has officially transferred from original owner to new (lender).
Now that we've defined the term, we can move onto the options for homeowners facing the foreclosure process. The options boil down to whether: 1) You want to sell your home, or 2) You want to keep your home.
- You want to sell your home
Selling your home is a viable option should your only other available solution is foreclosure. If you find yourself in the enviable position of having equity in your home, then this information is NOT for you. These are options for homeowners who are not only facing financial hardship, but also underwater on the value of their home.
In a short sale, the lender and the homeowner agree to sell the home at a price that is less than the remaining value of the loan. Basically, this means the bank accepts a payoff that is less than the amount you owe. The seller/homeowner will need to prepare a financial package for submission to the short sale bank. Each bank has its own guidelines but the basic procedure is similar from bank to bank. You can find a basic outline for the package in the resource section of this article.
Deed in Lieu of Foreclosure
You can avoid the foreclosure process completely in another way, by signing the deed of your property over to the lender. In this case, you are in basic terms giving up ownership of your home. Outside of losing your property asset (which is certainly a not an easy financial decision to make), the advantageous part of this option is that you can potentially walk away from a negative equity investment - a property that is "upside down" on its market value when compared against the money owed on the remainder of the loan. Or simply, you owe more than your property is worth.
There are requirements for a deed in lieu of foreclosure agreement with your bank. You can find more about the requirements in the resource section of this article. Depending upon your loan type, when you complete a deed in lieu of foreclosure, up to $3,000 may be available for your relocation expenses. You may also be eligible for up to $6,000 to help settle obligations such as your home equity loan or line of credit.
A deed in lieu effectively ends your home loan, and in some cases means you are not required to pay any remaining amount owed on your loan (also known as the deficiency). The important point in bold is an agreement that should be hammered out directly with your bank.
In both a short sale and deed in lieu of foreclosure, your credit score will be negatively affected. The degree of which, however, may be less than having a foreclosure judgment listed on your credit report. According to Fair Isaac, the organization that determines a consumer's FICO score (Fair Isaac Corporation), while credit scores will be affected based on an individual basis, in general the negative change will average around an 85 to 160 point drop. It can lower as much as 300 points depending on financial circumstances - so homeowners should prepare themselves accordingly. The negative mark will stay on your credit report for up to seven years.
Foreclosure can be devastating, causing losses far greater than the family home. In fact, foreclosure affects all aspects of our lives-including our mental, physical, financial, emotional, and even spiritual well-being. Naturally, those facing foreclosure are directly impacted, but the effects of foreclosure into the homes, lives, and businesses of everyone throughout the community.
Eventually, even those who aren't facing foreclosure will experience the negative effects in their lives, neighborhoods, and businesses. With today's high foreclosure rates, the rising loss of homes will impact all of us in at least one of the following eight ways.
1) Foreclosures affect neighborhood stability, jobs, local business, service-related business, crime, and property values.
When homeowners lose their homes, their families are displaced, causing multiple problems in the neighborhood. Vacant and/or abandoned properties become a blight upon otherwise well-kept neighborhoods. Even upscale communities are not immune to the negative impact of foreclosure, as once manicured lawns become overgrown and weed infested, and a lack of routine maintenance creates an eyesore to other residents and would-be buyers, while driving down property values of homes in the near vicinity.
These properties are also appealing to criminals. Vacant properties can become hangouts for criminals and gang activity and are inviting to thieves, who sometimes dismantle these homes piece by piece, taking light fixtures, appliances, and copper pipes. Eventually, the damage and loss can make repairs more costly than the value of the home, deeming it unsellable to a permanent homeowner.
In addition, communities lose much-needed jobs to foreclosure. Businesses need homeowners and residents to survive, and each foreclosure results in a decline in customers. This also applies to service-related businesses and jobs. With each foreclosure is a loss of property or real estate tax-funds which support libraries, schools, parks, medical care, and support services for the residents in the community. The loss of jobs and social and support services lowers property values and results in neighborhood instability as homeowners relocate to other communities. In fact, some cities have had to file bankruptcy in response to the loss of revenue resulting from foreclosures.
Each of these has the potential to affect all of the residents of a neighborhood or community, and they all result in lower property values, higher crime rates, higher unemployment, and a decline in neighborhood services, safety and appeal.
2) Foreclosure affects our youth. Adults aren't the only ones who suffer from foreclosure. Children are especially vulnerable to its effects. Not only does it increase their stress levels as they wonder about the uncertainty of their family's future, but they are also affected by the stress their parents face. Foreclosure is emotionally devastating, and the worry and anxiety parents experience greatly impacts their children. Along with the loss of their home, stability, and childhood friends, they usually experience a change in schools and lifestyle. Extracurricular activities are often no longer possible. Some older children will seek part-time employment in order to assist their family, leaving less time for studies or the pursuit of other interests. Those who are displaced become homeless or move into less desirable neighborhoods, resulting in fear, loneliness, and anxiety.
Children who are victims of foreclosure have also been found to have less confidence. Their self- esteem is directly affected and they are more likely to exhibit behavioral problems, have health-related issues, and experience a drop in grades or interest in school, sports, and making friends. The trauma is further exacerbated when these children leave behind their belongings or pets, leaving them with little or nothing of their former lives.
A foreclosure is the process by way of which a lender can take over the property of a person who has taken a loan. There are many reasons for the owners inability to pay the loan; death of an earning family member, divorce, loss of job and employment, mental illnesses, alcohol or drug addictions and many more. Foreclosures happen when banks, credit agencies or any other financial institutions repossess property. You can find foreclosure listings for properties that include homes, condominiums, residential properties and commercial properties. The foreclosure process begins when for some reason; the owner of the property fails to pay back the loan amount, the mortgage amount. The lender then takes the property back and forecloses the lien on the property that the lender had placed. Investors find foreclosure listings on website that specialize on finding, listing and maintaining foreclosure listings. You can also use real estate agents that specialize in foreclosures.
To find foreclosure listings is relatively easy these days, as foreclosures are increasing very rapidly in today's market. Most experts think that this year foreclosures will reach record highs. An investor can find foreclosure listings for all parts of the country on foreclosure websites that have a nationwide database.
Traditionally April is considered a month where the new home sales pick up. However, the real estate market is very slow as potential buyers are on edge about buying real estate. New sales are down compared to the number of foreclosures. Since foreclosures are nearing an all time high in the United States, an investor or a buyer can make money when they find foreclosure listings.
When an investor can find foreclosure listings and make money, they can buy at discount prices; many of the homes are available at 10-50% below the current market prices. To do this they find foreclosure listings for such homes. There is also a glut in the market and this is the right time to buy and this is true for the entire country. Investors find foreclosure listings as there are more and more properties that are been foreclosed.
You find foreclosure listings at websites that list information about foreclosures and the current real estate market. The first thing to know is where to find the properties that you can invest and make money. These properties are available with various agents and a growing number of resources on the internet. In order to find foreclosure listings where you live find a website that has a nationwide database. This means that you can find foreclosure listings about all the foreclosed properties in the various cities and states in the United States.
For the investor, buying at these low prices will enable them to make money in foreclosures, since they can resell the properties later when the market comes back up. While the home owner can benefit from buying the property and save money too. They can use the money for other purposes such as renovating the property or even fund the education of their children.
With the rising tide of mortgage foreclosure actions, Maryland has implemented new legal protections for homeowners. The laws are intended to: (a) protect homeowners who have been fraudulently induced to enter into high-interest loans; and (b) provide homeowners with information about alternatives to foreclosure and the importance of filing an answer if they are served with a foreclosure complaint.
The most recent legal protections went into effect in April, 2008. Among other protections, the new laws: (a) mandate that lenders provide the homeowner with a written notice of intent to foreclose at least 45 days prior to filing a foreclosure action in court; (b) require that lenders wait until 90 days after a default in payment before commencing a foreclosure case; (c) require that the foreclosure court papers be personally served upon the borrower; (d) require lenders to publish a notice of sale in a newspaper at least three times before the foreclosure sale can take place; and (e) give homeowners the opportunity to pay overdue payments up until one day prior to the scheduled auction.
The goal is to ensure that homeowners are given increased time to explore alternatives to foreclosure. In responding to foreclosure complaints, homeowners should ascertain whether their lender complied with the new procedural requirements. Where the required notices were not properly served, a homeowner should specifically raise the lender's noncompliance with the law as an affirmative defense in their answer to the foreclosure complaint. By asserting the newly available affirmative defenses, homeowners may be able to delay foreclosure and motivate lenders to provide non-foreclosure options, such as short sales and loan modification.
Previously, in 2005, the Maryland legislature passed legislation requiring lenders to provide specific notice to homeowners regarding their rights in foreclosure actions. This law took effect on May 26, 2005 and, among other things, requires that foreclosure notices contain specific warnings and information.
Like other states, Maryland experienced record numbers of foreclosures in 2009. Prince George's County and Baltimore County have experienced the highest number of foreclosures overall. However, the increase in foreclosure rates has affected every part of the state. Statewide, foreclosure filings in August, 2009 were up by more than 70% as compared to August, 2008. These grim statistics reflect the increase in unemployment, large number of high-interest mortgages, and crumbling property values. Even the most desperate homeowners should file answers when served with foreclosure complaints. Homeowners who answer foreclosure complaints are generally able to slow the foreclosure process. In many instances, homeowners who have filed answers to foreclosure complaints have found that their lenders are more willing to consider various options, including loan modifications and short sales, that were not made available previously.
Foreclosure answer forms are available for download, and are relatively easy to complete and file with the court. A foreclosure answer need not be lengthy or complex. The principal purpose is to concisely deny those allegations in the complaint that are false, and to set forth any affirmative defenses which may be applicable. In foreclosure cases, answers often contain the following affirmative defenses: (a) the mortgage was entered into fraudulently or in violation of the Truth in Lending Act; (b) the lender failed to comply with applicable notice periods; and (c) the lender failed to personally serve the foreclosure summons and complaint. These are just some of the affirmative defenses to foreclosure that a homeowner should consider asserting in their answer form.