The author of 23 Legal Defenses to Foreclosure has identified over 50 legal defenses to foreclosure (23 with detailed explanations), which are listed in his book. For more information about each of the defenses above, consider the book, 23 Legal Defenses to Foreclosure, by
clicking here. The book includes checklists and easy-to-read chapters that show you how to identify these errors in your own loan.
Archive for Loan
Legal Defenses to Foreclosure
Posted by: | CommentsThe following are legal defenses to foreclosure to beat the bank:
1. Truth in Lending Act (TILA) violations enabling rescission. If your loan is a refinance, the bank must have provided you a set of disclosures at the time of closing. If these disclosures are inaccurate, the loan is statutorily rescindable under TILA. For example, in a foreclosure action, the finance charge must have been accurate within $35 or the loan may be rescindable. This means the loan is cancelled and all money paid to the lender is refunded.
2. Truth in Lending Act (TILA) violations enabling damages. If you purchased the property with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money damages to offset the foreclosure.
3. Home Ownership and Equity Protection Act (HOEPA). This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.
4. Failure to Provide a Correct Notice of the Right to Rescind. There is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.
5. Breach of Contract. Many times the lender will do things that are unfair or unjustified before starting the foreclosure process. Just as you have an obligation to pay the mortgage, the lender has a responsibility not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.
6. Real Estate Settlement Procedures Act. This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees. It enables damages, and sometimes rescission if the error triggers TILA.
7. Fair Debt Collection Practices Act. This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt. A failure to follow this law enables statutory damages and attorney’s fees.
8. Fair Credit Reporting Act. This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. Violations of this act also enables damages and attorney’s fees. Punitive damages might be available under this act.
9. Real party in interest. This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.
10. Unconscionability. This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.
11. Failure to state a claim upon which relief can be granted. This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.
12. Failure to establish conditions precedent. Want to get a foreclosure action thrown out of court right away? Use this defense that attacks the lender’s pre-foreclosure processes.
13. Failure to comply with FHA pre-foreclosure requirements. FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.
Selling your Home to Avoid Foreclosure
Posted by: | CommentsOne of the most effective ways for homeowners to find a way out of foreclosure is simply to sell their property on the open market. In the best of cases, this will allow them to stop the foreclosure process, pay off the defaulted loan in full, and leave the house with a little extra cash for moving expenses, bill payments, or to establish an emergency fund. If the house is sold early enough in the process, the homeowners may even be able to preserve enough of their credit to purchase a new, more affordable home. But even listing a home for sale should just be one of the homeowners’ options, and should not be solely relied upon.
The main drawback of listing a house for sale in order to avoid foreclosure is the lack of time. The foreclosure process will not simply stop just because the owners are attempting to sell the house, creating a race which will decide who and on what terms the property will be unloaded. If the foreclosure victims win, they can work with the new buyer and negotiate the price, closing costs, and every other part of the agreement. However, if the bank wins through the court process, they home will be forcefully sold at a county sheriff sale for whatever price is offered. The owners will be completely cut out of negotiating the terms of the sale.
Unfortunately, with the real estate market in such a slump, selling a house to stop foreclosure may be quite a challenge for homeowners. Houses now typically sit on the market for over six months to a year with no real offers. This almost guarantees that the foreclosure victims will have to request more time from the lender in order to locate a buyer. Although many banks will give the homeowners every opportunity to work out a solution by stopping the sheriff sale, an entire year is a long time for the bank to leave the foreclosure process on hold.
Of course, one of the ways to avoid waiting for long periods of time and hoping to stay in the good graces of the lender is for the homeowners to sell quickly. If they have a lot of equity in the house, many professional investors will be interested; their offers, though, will leave the homeowners with no real profits beyond a little extra cash to move out. Such bargain shoppers of the real estate industry can often be found advertising on billboards or in classified ads, with messages such as “We Buy Ugly Homes,” “Cash For Your Home Today,” and the like. There is nothing wrong with these investors, but they will leave homeowners with little to show for any equity they may have in the home.
A short sale is another possibility for homeowners who do not have time to sell the house through the open market and who may have little to no equity. Selling short will require the lender to accept a lower amount of a payoff than what they are owed on the loan, and each bank’s short sale procedures are a bit different. However, if they accept the offer, the homeowners will be able to sell the house and at least escape from the foreclosure nightmare. There is little chance of getting much equity out of the sale, but it is a much better outcome than watching the home sold at a foreclosure auction.
Selling the house should be considered by every homeowner facing the danger of foreclosure. Due to some of the drawbacks, though, such as the time required for an open market sale and the control that the lender can exercise over the sheriff sale and short sale processes, selling should only be one of many ways to stop foreclosure that homeowners examine. As we always recommend, having more than one backup plan is an absolute necessity when facing the loss of a home. Buyers back out at the last second, mortgage applications are rejected, or unexpected title issues come up that derail the process. But for homeowners who want to make a true fresh start after foreclosure, selling the house as one of the last resorts may allow them the second chance with a new home that they are seeking.
Nick writes for the ForeclosureFish.com website, which provides homeowners with foreclosure help and advice they can use to save their homes on their own. Visit the site today to download a free e-book explaining how foreclosure works and how it can be stopped: http://www.foreclosurefish.com/
Refinance against what equity?
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