Last Rev. 03/15/19 07:402am

Document Review to Stop Foreclosure by Litigation

I have spent years in helping homeowners who came to me far later than they should have come to me, and I have seen all types of mistakes which have hurt my belated homeowner clients.

The mistakes include trying to represent themselves in foreclosure actions; deciding not to defend a foreclosure because of a lack of understanding of the problems involved; being represented by a real estate attorney who was not interested in defending through litigation; winding up with an attorney who steered them into bankruptcy instead of state-court defense of foreclosure; failing to have an adversary proceeding in bankruptcy court; failing to appeal; failing to file a quiet title action; failing to demand a bad-faith hearing; failing to seek discovery; failing to move for reargument or reconsideration; failing to put in various affirmative defenses and counterclaims; failing to file proper loan modification applications; failing to appeal from denial of loan modification applications; failing to make use of court-sponsored conferencing or mediation; failing to amend the complaint; failing to move to vacate a judgment on grounds of newly-discovered evidence or fraud; and numerous other failures.

These homeowners get to me in many cases where they are very close to losing their property, or have actually lost their property, and they ask me what they can do to try to save their property.

When making this analysis for them, I need to review everything that has happened, to ensure that I leave no stone unturned. I want to assess what went wrong (if anything) and what now can be done to try to correct the problem.

I have done this analysis for homeowners as well as the homeowners' lawyers. This field of law is tricky and nobody knows everything, and I can often be of assistance even to an attorney equally skilled in the field (as could such attorney be of assistance to me).

The problem for the homeowners is: What can they do now, if anything, regardless of how they got into their current position.

To answer this question, I have to have somebody put together all of the relevant documents, and I need to study them to see what opportunities there are to engage in meritorious litigation against the bank designed to save the property from foreclosure, with the real purpose of trying to encourage the bank to give a workable loan modification agreement that will enable my clients to remain in their property -- and to end the litigation.

Here is the text of my 3/12/13 video which lists the documents I need to review; who would be qualified to gather the documents for a homeowner (for a fee) and what I charge for my legal services in reviewing the documents and figuring out what if anything the homeowner can still do using litigation to try to save his/her property from foreclosure and sale.

Start of Text of Video 117


My name is Carl Person, I'm an attorney spending most of my time in defending against foreclosures, and am helping clients throughout the United States.

Saving your home from foreclosure and sale may be possible, but it depends on what has happened up to this point. What most homeowners facing foreclosure need to determine, if there is anything that can be done, is to have a competent foreclosure defense attorney review all relevant documents and analyze for them the best steps to take at this time to save their home.

Whatever things you, a homeowner, has already done pro se or with help of a consultant, paralegal or even an attorney (if not a litigating, foreclosure defense attorney) should be reviewed to determine your best course of action (usually litigation) to save your home. This requires two steps.

Step 1 - Assembling the documents.

The cost of getting the documents together may run around $250, but this is a very valuable thing for you to put together, and the package will be needed by whatever attorney you retain, and should result in lower legal costs for you and better legal results. Persons experienced in preparing loan securitization audits or title searchers are the best for this purpose, and can serve a very valuable role for the homeowner if dedicating themselves to putting together the needed documents. I like to think of this person as a "Document Gatherer", someone who acts as a professional intermediary between the Homeowner and the Foreclosure Defense Attorney - in the same way that a claims adjuster is an intermediate between a claimant and an insurance company.

Step 2 - Reviewing the Documents. Once all the documents have been put together, they should be scanned to create pdf files and emailed to me for review. My charge for this review is $400, which anticipates about 1-1/3 hour of work for me, including a review of each of the documents; making notes on my review; and having a lengthy telephone conversation with the client-homeowners to advise them on what steps they should now take to have the best chance of saving their home from foreclosure. Generally, I say they should commence some type of litigation, and I explain what type of litigation they need to commence.

Please remember that there is no guaranty that these next steps will save the homeowner's home. But, if the right steps are taken, the homeowner has a statistically better chance of saving his/her home than doing something else. The next steps are not magic. They become self evident to an experienced attorney in defending against foreclosures -- using litigation against the bank. Others who would give advice without such experience are less able to know what needs to be done.

Before going any further, I want to list some of the variables that will make a difference in the outcome for different homeowners, even though their next steps may be the same:

  1. The contents and dates of the preceding loan modification applications and the bank's real reasons for denial (usually not disclosed to the homeowner);
  2. The competence and experience of the person preparing the loan modification application for the homeowner;
  3. Whether the mortgaged property is underwater or not and to what extent;
  4. Whether the property is located in a judicial or non-judicial foreclosure state;
  5. Whether the homeowner lives in the property and plans to remain living their if granted a workable loan modification agreement;
  6. Whether a principal reduction is needed for the loan modification agreement to be affordable;
  7. The entity (such as FNMA, Freddie Mac, vulture fund, REMIC Trustee, bank, or individual investor) which claims to own the note and mortgage;
  8. The number of months during which the mortgage has not been paid;
  9. The income, expenses, assets and indebtedness of the borrower;
  10. The availability of other support for the loan application (such as tenants, relatives willing to go on the mortgage, government subsidies, tax abatement policy of local government);
  11. Ability and willingness of the homeowner to put together the needed documents and provide the information needed for review of his/her foreclosure situation;
  12. Law firm representing the bank;
  13. The availability of the records for your loan, including the original note;
  14. Whether MERS is involved as a nominee for the owner of the mortgage;
  15. Differences in appraisals of the Property;
  16. Homeowners' credit score;
  17. Other documents that may come to mind, including notes of conversations in trying to obtain a loan modification agreement.

Review of the homeowner's situation by a competent foreclosure defense attorney, for a small reviewing fee, is preferable to paying much larger sums of money for help in preparing a loan mod application, or paying an attorney who is going to push you into bankruptcy or a short sale or has no idea on how to conduct foreclosure defense litigation. In a lawsuit, if you start off with the wrong approach in your complaint or answer, you may not be able to recover and will probably lose your home as a result. Litigation requires that you start off with the right documents from the beginning. The review will also point out where you may have an opportunity to improve upon prior litigation documents, to make them more threatening to the bank.

Documents Needed for My Review

I need to review the following documents to be able to understand what you need to do at this present stage of your foreclosure problem:

1. Litigation Documents:

  • Copies of all documents filed in each lawsuit relating to the Property
  • List of all documents filed in each of the lawsuits
  • All lawsuit discovery obtain or provided
  • Copies of all decisions in each of the lawsuits

2. Loan Closing Documents:

  • Deed for the Property
  • Note for each loan
  • Mortgage or Deed of Trust for each loan
  • Closing Statement

3. County Clerk's Office:

  • Copy of all mortgages
  • Copy of all assignments
  • Copy of all satisfactions
  • Copy of all lis pendens filed against the property

4. Bankruptcies:

  • Docket Sheet for any Bankruptcies during the past 8 years for any of the mortgagors or note makers

5. Notices from Bank:

  • Copy of all notices of default or notices to cure from the bank
  • Copies of all offers from the bank (such as short sales or deed in lieu of foreclosure)

6. Securitization Documents:

  • SEC documents showing the claimed owner of the Note (Bloomberg Terminal type material)
  • Pooling and Servicing Agreement
  • Underwriting Agreement
  • Bill of Sale
  • Trust Indenture Agreement
  • Loan Modification Documents

7. All loan modification and forbearance applications made by you as to any of the loans and any correspondence from the bank concerning such applications

With these documents, I am in a position to determine the steps you should be taking to keep your home.

These steps might include a motion to vacate a default judgment, or a quiet title action, or a summons and complaint and motion to vacate a sale or eviction order, or an adversary proceeding in a bankruptcy proceeding.

All of the described documents are necessary to enable me to decide the best course of action to save your home, and to give you an idea of the feasibility of such a proposed course of action.

Doing the right thing doesn't always enable you to win. The further along one goes on the path toward foreclosure the more difficult it will be, generally, to stop the process.

But litigation should be considered at any stage in the foreclosure process and is generally most effective starting from the very beginning, but it also can save your home when used later down the foreclosure path. As the attorney for homeowners, I give my best legal judgment to them on what can be expected from the litigation steps I outline for them.

The total cost of $400 plus $250 or $650 is a reasonable price for learning what if anything you can do in light of all that has occurred up to this point.

If you have any questions, please send me an email with the single word DOCUMENT REVIEW in the Subject part of the email, and include your name, state and telephone numbers so I can give you a call and talk about your problem, at no charge.

My telephone number is 212-307-4444.

Carl E. Person

[End of text for video 117]

This article replaces another article which I'm preserving through this link, NEW ARTICLE FOR 2013: 30+ Foreclosure and Loan Modification Secrets - Helping Homeowners, Real Estate Investors and Businesses Stop Foreclosures

Carl E. Person
225 E. 36th Street - Suite 3A
New York NY 10016-3664
Tel: 212-307-4444
Cell: 917-453-9376