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30+ Foreclosure Secrets - Saving Your Home from Foreclosure
My name is Carl Person and I've been defending foreclosure actions for years. Changes keep taking place. For the start of the new year (2013), I want to bring you (whether you be a threatened homeowner, someone who has already lost his/her home, an attorney, real estate broker, bank official, robo-signer, loan modification specialist, paralegal or other person involved in this ongoing foreclosure and real-estate disaster) up to date with my best thinking on the subject of foreclosures. I am guided by these rules or thoughts when I represent homeowners and businesses with their foreclosure problems.
I am going to set down rules, points or conclusions, with an explanation, to help you make decisions about what to do. Here they are, for anyone with a mortgage problem, in no real order of importance:
- The New Trailer Economy - Unless Loan Modifications Include Substantial Principal Reductions American is going to have its citizens living in trailers or renting homes from banks and investors unless millions of residential mortgage loans are reduced in principal amount, so that the loans are not under water, to enable Americans to have an equity in their homes once again. More on this topic is set forth below.
- Getting the House for Nothing - Don't Believe What You Hear Most persons now knowledgeable enough, but having read or seen various Internet articles or videos, are under the impression that because of the various problems with loan securitization a homeowner can wind up owning his/her house free and clear of the note and mortgage. This is not true in more than 99.99% of the cases. There are very few instances in which this has occurred. The plain truth is that most of the title defects that exist are cureable, by the creation of proper (and backdated - yes that's ok) title documents that are not forged or robo-signed, and with proper powers of attorney attached if appropriate. The instances where a handful of persons obtained their houses for nothing - if any at all in the long run - are probably where the bank or its attorney committed some really bad things during litigation and the court sanctioned them by dismissing the foreclosure action with prejudice. Whatever else you learn from my present presentation please come away from it thinking that your legitimate objective is to obtain a reasonable loan modification, not your home free and clear of your existing note and mortgage.
- For Most Homeowners, Suing the Bank is the Key to Obtaining a Reasonable Loan Modification Agreement It is easier to obtain a loan modification agreement, or more favorable agreement, if you are suing the bank in a quiet title action or defending the bank's foreclosure action with a quiet title counterclaim
- Bankruptcy Is an Evil to Be Avoided by Most Homeowner-Mortgagors Never be talked into filing for bankruptcy unless you speak with me or an attorney with my background and skills (commercial litigation, foreclosure defense, not a bankruptcy attorney) because bankruptcy usually does not permit you to challenge the bank's alleged lien and you wind up admitting its validity, because of your bankruptcy attorney's failure and/or unwillingness to file the required adversary proceeding
- Prefer State Over Federal Court for Foreclosure Litigation Make it a point to always challenge a bank's alleged mortgage lien in the state court system. There are a variety of reasons for this, including (i) there are very few federal judges in comparison to foreclosure-handling state-court judges and federal judges and probably would resent a lot of state foreclosure claims being brought in federal courts to increase their federal-case workload; (ii) most federal judges at this time are less experienced in securitization issues than foreclosure-handling judges in the judicial foreclosure states; (iii) after the Twombly and Iqbal U.S. Supreme Court decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); (iii) state court judges handling foreclosure issues are not elected or are not appointed for life, unlike Article III federal judges, who are appointed for life; (iv) federal court actions are more apt to have the bank represented by larger, more powerful law firms, for whatever that means, if anything at all; (v) state judges looking for reappointment or re-election can be expected to be more sympathetic with the plight of homeowners than judges not up for reappointment or re-election
- Presently You Have Insufficient Proof to Obtain an Injunction, in Absence of Breach of Contractual Provisions The mortgagor generally has insufficient evidence to prove the right to an injunction to stop a threatened foreclosure sale in a non-judicial state, because the mortgagor cannot prove the negative (i.e., that the bank is not in the chain of title for, or does not have an assignment of, the note and mortgage)
- Loan Modification Agreements Generally Forgive Past Monthly Payments Not Made True loan modification agreements reduce the monthly payment and sometimes the principal amount of the note, and generally they forgive payments on the note that are due but unpaid; forbearance agreements often are for lower monthly amounts than the note says should be paid, but only for a limited period of time, with the unpaid amounts put on the "back end" of the note, payable in later years, but with all of the amounts due under the note to be paid at some time by the borrower, with interest; clearly a forebearance agreement is no more than a temporary respite with greater pain later on (and should be considered the same as a chapter 13 bankruptcy, which essentially winds up to be a forbearance agreement)
- The Perfect Loan Modification Agreement - Accomodating All Interests The banks have rights also, and their interests are going to be protected. This country is not going to have all of its securitized (often MERS-related) residential mortgage loans declared null and void. Yet, the country needs to have most of its home occupied by owners, not renters, by persons who have an equity in their homes and care about upkeeping of the property and neighborhood, and who can borrow against their home equity in times of need. A nation of homeowner with underwater mortgages is not going to work out for the homeowners, the communities, the nation or the banks, investment bankers and investors. Without equity in home ownership the nature of the United States will undergo significant, adverse change, creating tens of millions of additional citizens and residents with nothing to lose and little incentive to do anything. The way of obtaining stability in home ownership, real estate values, borrowing ability and political stability is to have underwater mortgages re-written -- at least for those who would otherwise lose their homes -- so that the principal amount of the loan is reduced to no more than the present value or lower distress-value of the real estate (the maximum amount which the lender could obtain through short sale or auction sale of the property) with an interest rate equal to present market rates (which again is no more than a bank would be getting which finances a person who would otherwise buy the property at auction sale), for a 30-year conventional mortgage. This is going to happen of its own accord, with banks voluntarily giving this loan modification (under such circumstances) if the REMIC banks (called "investors") are not able to obtain or collect insurance payments based on the decline in value of the property and loss to the investor upon short or auction sale, so that the investor benefits by bringing the property back to performing status faster through loan modification and with greater net value to the bank (including the elimination of the $25,000 to $75,000 cost of a foreclosure or $10,000 cost of a short sale and/or payment of "cash for keys" to get the homeowner to leave). Public policy (i.e., law) should require that homeowners be permitted to stay in the property under circumstances where the bank obtains no greater value by forcing a sale of the property (through auction or short sale). Statutes may be enacted or court rules or decisions may be rendered in one fashion or another to reach this just result. Somehow, the country need to reach this result, whether through statute, rule, litigation or self interest on the part of the bank, or a combination of them.
- Act Quickly to Commence a Quiet Title Action A quiet title action needs to be brought as quickly as possible if the property is located in a non-judicial foreclosure state (where foreclosure actions are not needed by the bank to foreclose and sell the property) because you have no other way to get into court other than to sue yourself;
- Quiet Title Actions Are Not What They Seem The term "quiet title action" is not a good legal description of a quiet title action of the type that I commence. A real quiet title action would make a serious effort to find and serve a summons and complaint on every possible claimant to your real estate, but my quiet title action is basically a declaratory judgment action that the named defendants (your servicer and REMIC trustee and perhaps MERS) don't own the note you signed, coupled with fraud allegations for the dual-track fraudulent loan modification charade that the defendants have been using on homeowners to avoid giving them a loan modification agreement to keep homeowners in their property. Try not to be confused between the two; there is a substantial pleading difference;
- Wrongful Foreclosure Actions Do Not Exist in Judicial-Foreclosure States I want to make this a separate point. Wrongful foreclosures only occur in non-judicial states because foreclosures in the judicial-foreclosure states are pursuant to a court judgment, which by definition is not wrongful - all parties presumably had their opportunity to give their side to the judge (or lost their right to do so by default) so that the final judgment of foreclosure is pursuant to law and not wrongful; the remedy is to move to vacate the judgment, especially if the defendant homeowner was never served with a copy of the summons and complaint, or based on fraud or newly-discovered evidence
- Use an Experienced Foreclosure-Defense Attorney The action should be commenced with an experienced attorney to create the maximum impact upon and threat to the bank, servicer, trustee, etc.
- When Bringing a Quiet Title Action, Try Not to Be in Default on Your Mortgage, If Possible The mortgagor preferably, in a non-judicial foreclosure state, should not be in default on the mortgage at the time the quiet title action is brought and for the 2 months thereafter, so that the bank and others have to answer the complaint when the mortgagor is not in default and cannot sell the property as a reprisal; instead, the bank is more apt to think about ending the lawsuit with the desired loan modification agreement
- Existing Litigation or an Outstanding Judgment Often Precludes Use of a Quiet Title Action A quiet title action is also appropriate for mortgagors in judicial foreclosure states, as long as there is no outstanding litigation already commenced by the bank, or a prior default or non-default judgment in favor of the bank or servicer or trustee, in which case your litigation needs to be directed to vacating the judgment instead of trying to do an end run around the judgment. You have to attack any existing judgment directly, by moving to vacate it rather than by filing a new lawsuit
- Vacating a Judgment of Foreclosure Grounds for vacating a judgment can include fraud and newly-discovered evidence, or the best reason: that you were never served with a copy of the summons and complaint, if true; trying to open up a judgment is far more difficult and less likely to succeed than if you had defended the action with an attorney on a timely basis; anyone who fails to defend a foreclosure action after it has been commenced is foolish and is wasting a valuable asset (the asset of defending on a timely basis, in which case your loan modification aspirations are more apt to be realized than if you let a foreclosure action go in default);
- Loan Modification Applications Should be Reviewed by Expert before Submission Loan modification applications are tricky and should be reviewed before submission by a loan modification expert, who can help turn the application into a successful application
- "Hardship" Is a Trap for the Unwary Homeowner Don't fall for the "hardship" trick, in which the bank wants you to describe your hardship; the bank is not going to give you a loan modification agreement if you prove to the bank, through the gory details (often invented) about your alleged hardship that you will not be able to pay the loan if modified; the bank often uses the mortgagor's hardship details as the basis for denying the loan modification application;
- Finding an Experienced Foreclosure Defense Attorney It is difficult to find an experienced foreclosure defense attorney to defend a foreclosure action brought in a judicial foreclosure state or to commence a quiet title action in any state; the reason for this in non-judicial foreclosure states is that there are no foreclosure actions for local attorneys to defend, and attorneys in the real estate field are either transactional (doing the closings) and trying to raise money from banks or are representing or trying to represent banks and don't want to be known as anti-bank; in judicial-foreclosure states there are foreclosure actions but there seems to be an unwillingness by many lawyers to do more than assist mortgagors with settlement negotiations to try to obtain a loan modification (often under court protection from any litigation), but not willing to do the litigation necessary to be a threat to the bank or servicer or trustee, so that there is less need to grant the loan modification during the settlement negotiations, because the bank realizes that if no modification is granted the mortgagor will probably not be engaging in any costly litigation - the lesson I'm trying to give you is that you should be represented during settlement negotiations by an attorney that threatens the bank with costly, effective litigation for you to be able to obtain your desired favorable loan modification, and you shouldn't let your property slip away from you for failure to hire a competent, experienced attorney at the outset of your troubles with the bank
- Where to Start a Quiet Title Action - Part 1 A quiet title action can be commenced in the county where the mortgagor's property is located, but there are 3,000 counties in the United States and trying to find an experienced quiet title attorney within 15 miles or so of the County courthouse (to save on the attorney's legal time when going to court for your case) is usually very, very difficult, as most mortgagors looking for an attorney have been finding out (see my discussion a few points above); my solution for this problem is evolving and at this writing (on 12/25/12 - Christmas Day, when I am taking a few hours off to assess the "State of Foreclosures") I see two choices: One is to have an experienced out-of-state attorney provide backup to the local attorney (similar to the way a law firm with offices in various cities in the U.S. will use attorneys from more than once office to work on a single case); accordingly, the experienced out-of-state attorney can provide the legal insight and drafts of legal documents for use by the local attorney, who will review them and make them conform with local rules and then serve and file the documents, and appear in court when necessary to argue motions or attend conferences; this should be better than having an inexperienced attorney doing all the work.
- Where to Start a Quiet Title Action - Part 2 The other way is by bringing the action in the place (such as New York County) where the note and mortgage was assigned and re-assigned and where the securitization of the note and mortgage took place, and where the servicers/banks/REMIC Trustees and documents and witnesses are located; this will cost less at the outset because only one lawyer or law firm would be involved, but the defendants will probably threaten to make a motion to dismiss the case for alleged "improper venue", claiming that the action should have been brought instead in the mortgagor's own county. This is a legal issue which has not yet been decided by the appellate courts in New York (as to complaints based on the assignment of the note in New York) and in any event even when the banks argue improper venue they are sometimes willing to talk loan modification before resorting to litigation - so my recommendation is at this time, on 12/25/12, to commence quiet title actions in New York County, New York (the home of securitization) especially if the mortgagor cannot find a competent local attorney to do this in the mortgagor's own county. Remember, however, that you cannot start a separate action if you are already in a foreclosure action in your own county or if you have a foreclosure judgment against you in your own county, in which case you need to deal with that litigation, and the way of dealing with that could be with the 2-attorney system (a local but less-experienced attorney coupled with a foreclosure-defense experienced out-of-state attorney)
- Deeds to Residential or Commercial Real Property Belong in Strong Hands, Ideally Deeds to property belong in strong hands, and if you don't have the willingness, resources or information sufficient for you to fight for your rights and have accepted that you are going to lose your property, you should consider selling your deed as soon as possible to someone who can put up a fight to save the property from the bank; it is a much better investment in judicial-foreclosure states (where you can put up a legal fight without any immediate threat of loss of the property) to pay a few thousand for the deed than to pay 40% of the amount of the note and mortgage (as a vulture fund) to try to obtain a judgment of foreclosure and sale to kick the deed-owner off of the land. There is someone in Florida (a judicial-foreclosure state) who apparently has bought more than 100 deeds and is renting the properties and not paying any mortgages while defending the properties from foreclosure in the courts.
- Your Are Faced with a Business Decision, Not a Legal Decision Whether you should defend a foreclosure or start a quiet title action or move to vacate a default judgment is more a business judgment on the mortgagor's part than based on provable legal conclusions; this is so because the mortgagor and his/her attorney do not know the facts; they have to assume that there are title defects, for example, or dual-track mortgage loan modification fraud, but the evidence necessary to obtain a judgment or injunction still needs to be obtained, so that the issue is really what is the cost of commencing the needed litigation; if you are told that it would be $500, you would probably jump at the opportunity, but if you were told that it would be $30,000, you would probably say "take a flying leap". But it really means that if the cost to you was reasonable and affordable, when looking at the costs to you of not trying to defend your property, you would be willing to run the risk. I think this is a business judgment for the mortgagor more so than a legal judgment for me. The problems with securitization are regularly discussed but these are issues and not necessarily facts that can be given to a judge. You can get the needed facts through litigation, but generally not by making a qualified written request. The banks aren't stupid. They aren't going to hand you your evidence on a silver platter, and in fact they often are willing to grant a reasonable loan modification in order to avoid discovery, either because they have something to hide or perhaps because they don't want to go through the costs needed to win and would like to get the property back to performing more quickly by giving you a reasonable loan modification agreement
- Explanation for Current Wave of Principal Reductions with Loan Modification Agreements Recently I am seeing substantial principal reductions in permanent (i.e., non-trial) loan modification agreements (sometimes $200,000 or so), which may be the result of any one or more of these factors: (1) HAMP or HAMP II; (2) recent settlement of litigation with Justice Department and 50 state attorneys general; (3) inability to collect on insurance derivatives which ensure the decline in value of the property; (4) threat of continued litigation because without the reduction the offered modification is unworkable; (5) other unknown reasons
- When You Should Consider Leaving Your Home a mortgagor should consider leaving his/her home if the existing mortgage, or a loan modification, would leave the property substantially under water, so that the homeowner after 30 years of paying the mortgage would have little or no equity in the property - if this is the case, the homeowner should seriously consider getting out from under, and organize family life around another home
- Securitization Audits Aren't Worth What They Are Now Selling For Securitization audits are generally more expensive than the value they represent to the mortgagor or the mortgagor's experienced attorney; the attorney doesn't need all of the material being presented, and the affidavit that often accompanies the audit cannot be used in court as proof that the bank or REMIC Trustee or servicer does not have title or the right to foreclose. This conclusion is based on evidence, not the opinion of a former real estate broker. The court will not allow me, the mortgagor's attorney, to file an affidavit saying that it is my opinion that ******; nor will the bank's attorney be allowed to file any such affidavit; the judge's decision will be based on documents such as assignments and mortgages and notes, and the judge's decision will be his opinion on what the law is, not an affidavit. So these affidavits in securitization audits are worthless as title opinions, and are not needed as to the documents. If you have a copy of the document you don't need the affidavit.
- Don't Fall for the "In Esse" Salespersons Who Say You Get Your Home for Nothing There is a movement among non-lawyers which I call "in esse", in which non-lawyers come up with various legal theories which solve all the problems of homeowners or give them quick solutions. These "in esse" tactics are too numerous for me to list here, but let me give you a few examples. (a) you don't need (to pay for) a lawyer at this point, when you receive the summons and complaint, you can always stop a sale of your property by filing for bankruptcy - this is the worst advice being rendered by in esse and other well-meaning persons. By the time you have filed for bankruptcy you will have lost all of your rights to defend the foreclosure action, and the bankruptcy will probably be dismissed (or the automatic stay dismissed) and the bank will return to its activities in taking your property - the proper thing to do is to hire a lawyer to defend any foreclosure action on a timely basis and to assert appropriate defenses and counterclaim; (b) securitization is illegal and you can keep your property if you merely allege that the securitization process resulted in multiple payments of your note, that the note wasn't transferred to the REMIC Trustee on a timely basis (as envisioned by the Pooling and Servicing Agreement); that there are defects in title such as robo-signing - just tell the judge and you get to keep your property for nothing. This is all B.S. No judge is going to rule that all securitized loans are invalid. The sale and resale of the note was not to extinguish the note but merely a sale of the note in the way that a used car can be sold from one purchaser to another, but not for the purpose of extinguishing the car or note. The failures to comply with the U.S. tax and REMIC rules and regulations is a matter between the Trustee and the IRS and the mortgagor may not, or probably doesn't, have standing to challenge the dates at which the transfers took place. In challenging securitization you have to avoid challenging the entire process (such as the obvious illegality in interfering with the national system of filing mortgage-related documents including assignments of mortgage in the nation's 3,000 county courts and paying the huge filing fees if many cases). The judges are not going to declare the whole process invalid. This is something for the legislatures to do, and they don't seem to be doing very much to solve the foreclosure problem.
- Analzye Your Costs When Deciding Whether or Not to Sue or Defend A mortgagor needs to analyze the cost factors when deciding whether to engage in litigation; these factors include the value of remaining in the property; the cost of leaving; uprooting children and others from their school, neighbors, friends and associates; what assets could be sold to save the property; a fair analysis of the probability of success in the litigation; whether stopping payment on the mortgage is less risky than engaging in litigation (if you can't afford both); finding an alternative property at an affordable price - I have a YouTube video on this topic.
- Wrongful Foreclosure Action Don't Exist in Judicial-Foreclosure States Wrongful foreclosure actions can only be brought as to properties located in non-judicial foreclosure states because foreclosures in the judicial-foreclosure states are by definition not wrongful, they occurred by reason of a judgment which the judicial system requires you to accept as just and proper, unless you defended to the contrary and won
- The future of loan modifications: Modifications of loans have got to occur, one way or another, because Americans can no longer afford to pay the inflated mortgages in light of the substantial decline in the economy, real-estate values, incomes, opportunities, and jobs. Loan modifications are being resisted by the banks because they are trying to extract the highest amount they can to repay the persons from whom they took trillions of dollars selling interests in the nation's homes at highly-inflated prices, and to reduce their exposure to lawsuits from the bilked investors throughout the world. But the economic decline is real and incomes do not support mortgages based on these inflated real estate values, and a decline in monthly mortgage payments will take place, one way or another. Here are the ways for monthly payments to decline:
- Loan Mods - First Way: Government programs to encourage loan modifications; these programs were not that successful and most injured homeowners have obtained no significant relief from these programs (such as HAMP, HAMP II and Justice Department/Attorney General litigation and consent decrees); there is little hope that the government is the answer; I believe that private litigation is the answer; what little incentives given by the government has not worked to obtain broad-based relief for homeowners, and there is no reasonable expectation that future governmental programs will give greater incentives, especially now that a lot of the foreclosure damage has already taken place. You must remember to take into account what the bank gets when it forecloses and compare this to what the bank gets when it gives a reasonable loan modification agreement. When the incentives to foreclose are gone, the nation will have its foreclosure relief through private loan modification arrangements.
- Loan Mods - First Way - Continued: The incentives of banks not to give a loan modification agreement seem to me to be: (i) insurance arrangements through exotic financial instruments (derivatives) which pay the bank 100% of a substantial percentage of the loss taken on a defaulted mortgage when the mortgage is closed out by foreclosure and sale or by short sale to an unrelated person - recently the derivatives accounts of Deutsche Bank were frozen in Germany by multi-country governmental action, which may have stopped some mortgage insurance payments to banks, thereby reducing or eliminating this one major incentive for the banks not to do justice to homeowners; (b) payments by federal agencies such as $1,000 for each loan modification application reviewed (as distinguished from approved) by the banks, which seems to account for banks being willing to entertain numerous applications from the same homeowners but not to accept any of them in most instances; (c) the amount of money the bank can receive in a short sale - which is approximately the reduced value of the property plus a payment which the bank forces the homeowner to pay to the bank in addition to the bank receiving 100% of the short-sale price - of course, if the homeowner has nothing to pay, there is no such further payment to the bank; (d) the amount of money the bank obtains through public auction of the property - which often is far less than the reduced value of the property, which leads to the evils of [i] the bank taking the property itself (when no other buyer shows up) and the homeowner may then get hit with a surprise deficiency judgment equal to perhaps the unpaid amount of the note and [ii] a bank official tipping off a friend that a great property is going to go off without any significant advertising by the bank or expressed interest, to enable this friend to come in and buy the property for virtually nothing and then, presumably, split the spoils with the bank official - this type of arrangement may require litigation to uncover, as in a wrongful foreclosure action after a non-judicial foreclosure or as opposition to a report of sale in a judicial foreclosure. Another thought, I do not understand (other than to give banks and other financial institutions another financial present) why government agencies are selling so called "toxic mortgages" (i.e., defaulted mortgages) to investors at 40% of the amount owed, for the purpose of having the investors foreclose and sell the property and kick the homeowner off his/her land when the government is not offering that property to the homeowners at the same price with an opportunity to remain in their property. I don't understand this at all, other than to be attributable to campaign contributions and political control in the U.S. by the banking industry.
- Loan Mods: Second Way: Another way for the bank to get all if not more than it can get properly under my First Way described above is to immediately reduce the principal amount of the loan to the present (reduced) value of the property and give a note at present market rate interest, which will put the mortgagee bank in approximately the same position as a bank which finances an auction purchase of the same property, with the following favorable differences: (i) the property and note in the loan modification will be given a greater value than the property when sold at auction; (ii) the modification can take place immediately whereas the auction sale could take many months or years, especially when there is litigation; (iii) there shouldn't be any significant litigation expense of the bank or the homeowner. If a bank is unwilling to give a reasonable loan modification agreement to a homeowner, to enable the homeowner to remain in his/her property, assuming the homeowner qualifies for the modification, I come to a tentative conclusion that there is some rotten in Denmark and that the bank or an official or employee of the bank sees a way to make some illegal profit out of the foreclosure.
- Foreclosure Relief Is Not Dependent on Renewal of HAMP HAMP is coming up for renewal or killing, but I don't believe that either Congressional choice is going to kill the loan modification industry. It is still needed to bring monthly payments into line with earnings and real-estate values. Remember, that even during the period of HAMP and HAMP II primacy, 2/3rds of all loan modifications were in-house, i.e., not under HAMP rules and incentives.
Carl E. Person
225 E. 36th Street - Suite 3A
New York NY 10016-3664