Category Archives: Your Legal Rights

How Homeowners in ‘Pro Se” Litigation Can Effectively Prepare Their Discovery Requests

02 Monday Jun 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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There are certain rules of Discovery every litigant must follow when in a lawsuit.

After a lawsuit is filed, each side is permitted to obtain information and documents from the other side. This process is referred to as discovery.

There are several methods of obtaining information – tools in the discovery tool belt. The methods covered in this book are those that are the least costly and easiest to employ: Interrogatories, Requests for Admissions, and Requests for the Production of Documents. Discovery enables you to get damaging information directly from the bank! Serving the lender with discovery. A defendant may usually commence discovery as soon as he or she has been served the complaint (the written document containing information about the lawsuit).

Sometimes, as is the case in federal court, there are mandatory disclosures that must be provided by each side without being asked. See Federal Civil Rule 26 for more information about mandatory disclosures if your foreclosure is in federal court.

Interrogatories are simply questions asked of the other party. For example, an interrogatory might say, “State the date and amount of each and every payment received by the plaintiff in payment of the mortgage or note since May 1, 2005.” They can be questions, or directed statements, such as this one is, telling the other side to provide specific written information you seek.

Usually, interrogatories are preceded by a list of definitions so the other side is clear on what you mean when you use a particular term. For example, in the suggested definitions following this chapter, “identify” has a very specific (and extensive) definition. These are usually used so the other side’s attorney can’t avoid answering the question based on a limited definition.

One of the most important things to remember about interrogatories is that they are generally limited in how many can be asked. In the Federal Rules of Civil Procedure, each party is limited to asking just 25 interrogatories, and they can only be directed to parties.

A party is someone or some organization who is suing or being sued in a lawsuit.

This means interrogatories can’t be served on the mortgage broker who took the borrower’s loan application unless he or she is first brought into the lawsuit as a party (accomplished by filing a third party complaint). Federal Rule 33 governs interrogatories in federal court. Look at your state’s rules for a heading called “Interrogatories.”

Many chapters will have a section that suggests some interrogatories based on that particular defense. This assumes you will be using the model interrogatory form, and adding in the suggested interrogatories as paragraphs where indicated.

Here are some general rules to follow with respect to interrogatories:

· Leave several spaces below each interrogatory for an answer.
· Some courts require the interrogatory form be provided on diskette or CD to the other party, so the other party can type in the answers and return it to you.
· You must mail a copy of your interrogatories to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank.
· You will usually need to mail a copy of the interrogatories to the court, to be filed with the case. (Read your state’s rule on interrogatories.)

Requests for Admissions.

Requests for admissions are simple statements that requires the other party to either admit or deny the true of the statement.

A request for admission to the lender might be, “Admit on May 5, 2006, plaintiff purchased the mortgage from ABC Corporation.”

The lender would then respond in writing with a simple “Admit” or “Deny.” If the lender objects to the request, it may state something similar to, “Plaintiff objects to this request for admission because….”

It may state it doesn’t have sufficient information to form a belief, or refuse to answer on other grounds.

The purpose of requests for admissions is that they narrow the scope of what is contested for trial. If the parties can admit that certain facts are true, then these facts do not generally need to be litigated later. These must be presented in a manner where the other side can either admit or deny each.

If you seek to ask questions with open ended responses, then using interrogatories or depositions might be more useful.

Depositions are beyond the scope of this book, but well-crafted interrogatories might get you the information you seek. In federal court,
like interrogatories, they can only be served on parties.

One of the most important facts to remember about requests for admissions is that in many states, failing to respond to requests within the time limit (30 days in federal court) is equivalent to admitting the statement’s truthfulness.

Be very careful if you are served with requests for admissions so your failure to respond doesn’t equate to admitting each!
Do not be late filing your responses, or you may find them deemed admitted.

Many chapters will have a section that suggests some requests based on that particular chapter. This assumes you will be using the model request for admission form, and adding in the suggested requests as paragraphs where indicated.

Here are some general rules to follow with respect to requests for admissions:

· Leave a couple of spaces below each for an answer.
· Some courts require the requests be provided on diskette or CD to the other party.
· You must mail a copy of your requests to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank. · You usually must mail a copy of the requests to the court, to be filed with the case.

Requests for the Production of Documents.

Requests for the production of documents or other tangibles (like records) are a right afforded to litigants during a lawsuit. You may ask the lender in a formal document to produce the original mortgage and note, as well as any other physical thing that relates to the lawsuit. Federal Rule 34 governs these requests.
It would be wise to get copy of the closing documents from the title company, lender, broker, real estate agent, and whoever else is involved in the transaction that may have copies.
You may also want obtain copy of the invoice and appraisal via subpoena to ensure the amount showing on the settlement statement is correct. If the party you want information from is not a party to the lawsuit, you may have to subpoena them for the information.

When you have been served with this type of discovery by the lender, you will not mail a packet of documents court (again, do not mail documents in response to this type of discovery request to the court), although the court may want you to file a Notice that you did, in fact, respond. You will only send the packet of documents to the party requesting that you produce documents.

Getting served with discovery.

Be very mindful that failing to respond to discovery within the time period prescribed by the rules can get you into deep trouble. Answering untruthfully can also get a party into trouble, opening up them to sanctions or attorneys fees and costs for trying to avoid a bona fide question.

Discovery Cut-Off.

In some areas, the court may set a date as the cut-off for discovery. That means you must complete your discovery requests to other parties by this deadline. If the court sets a deadline, it will be included within the cover page of the lawsuit, or a notice will be mailed to you directly.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Homeowners Can Effectively Handle Discovery in Foreclosures

02 Monday Jun 2014

Posted by in Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, State Court, Trial Strategies, Your Legal Rights

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This post details an experience of a Florida foreclosure defense Attorney challenging the big banks to proof their case. Homeowners and “Pro Se” litigants will learn from this experience when implementing strategies to win their foreclosure lawsuits.

Here it goes:

Many people who don’t work in the legal field and/or are unfamiliar with normal court procedures are surprised to see how a lawsuit actually works. It’s not like you see on TV, where a dispute arises and the parties are immediately thrust into a trial. In real life, all litigants have the right to obtain discovery from the other side. This means, in non-lawyer terms, that both sides have the right to require his/her opponent, prior to trial, to provide documents pertinent to the case, to answer interrogatories, and submit to depositions. It’s not like the old TV shows like Matlock, where a cunning lawyer could bring in a surprise witness during trial, win the case, and leave his opponent scratching his head, wondering what happened. Both sides have to disclose their witnesses, indicate what those witnesses are going to testify, and provide pertinent documents, usually long before trial ever begins. The process of obtaining documents from your opponent in a court case, identifying witnesses, and learning what those witnesses will testify is called discovery.

Florida law, like that in most states, has broad discovery rules. Not only must all parties disclose anything relevant to that case, but anything “likely to lead to the discovery of admissible evidence” should also be provided. These broad discovery rules ensure both sides can litigate fairly, preventing a ”trial by sagotage.” In some ways, trials in real life ares like a game of cards, except the participants all have their cards laid on the table, face up.

With this backdrop in place, the interesting question becomes – Do the same rules apply in foreclosure cases? Do homeowners get the same, broad rights to discovery (that every other litigant in every other case enjoys)?

According to the letter of the law, there is no reason to provide homeowners fewer rights in the discovery process than any other litigant. Foreclosure cases are litigated in court (in Florida, anyway), so if homeowners want to ask banks to produce documents, identify witnesses, ascertain what those witnesses will say, answer interrogatories, or submit to depositions, homeowners are perfectly entitled to do so.

In reality, though, it often doesn’t work this way. Banks and their lawyers hate providing discovery in foreclosure cases. They avoid it like the plague. Unfortunately, I’ve witnessed this dynamic many times in foreclosure cases, when bank lawyers respond to my discovery by saying:

You don’t need no stinkin’ discovery, Stopa. I have the original Note, with an endorsement, and that’s all that matters.

Perhaps I’m exaggerating a little, but not much. In my experience, it’s quite common for banks to respond to my discovery requests by saying “we have the Note, we have the mortgage, here is a life of loan history, and a corporate representative will testify at trial. That’s all we’re giving you.”

Obviously, I very much disagree with the banks’ approach in this regard, as I think my clients’ discovery rights are much broader than this. To illustrate, take another look at one of my favorite cases, McLean v. J.P. Morgan Chase Bank, N.A., 37 Fla. L. Weekly D 334 (Fla. 4th DCA 2012). In that case, the Fourth District reversed a summary judgment in favor of a bank because the bank did not prove it had standing at the inception of the case. As the court explained in detail, if a bank is relying on an endorsement to convey standing, it has to prove the endorsement was entered prior to the lawsuit being filed.

If you’ve ever looked at an endorsement on a Note in a mortgage foreclosure case, you know that such endorsements are virtually never dated. It’s just a signature on a piece of paper – no date. As such, it’s essentially impossible for anyone – a homeowner, a judge, or the lawyers for either side – to know when that endorsement was executed. So how is anyone supposed to know whether that endorsement was entered before the lawsuit was filed? In my view, that is a classic example of the type of thing a homeowner can inquire about in discovery. Send the bank an interrogatory and ask when that endorsement was entered. Better yet, send the bank an interrogatory like this:

Interrogatory: The Note you filed in this case on March 23, 2012 contains an endorsement by Mickey Mouse, as Assistant Secretary of Wells Fargo Bank, N.A. Please specify the date of this endorsement as well as the name, address, telephone number, job title, and job description of Mr. Mouse, to include his relationship with Wells Fargo Bank, N.A. on the date of the endorsement.

Of course, this is just one example of the many facts about which homeowners can inquire during the discovery process of a foreclosure case. To illustrate, I had a hearing this week that played out exactly like I described above. I served a Request for Production and First Set of Interrogatories on a bank in a foreclosure case. The bank’s lawyers responded with objections to nearly every request, refusing to disclose much of anything. So I filed a Motion to Compel compliance with these discovery requests. At the hearing, the judge granted that motion, compelling sufficient answers to 17 interrogatories (similar to the one above, but on a broad range of topics, to include forcing the bank to identify all of its witnesses and to provide information about any insurance payments on the subject note/mortgage). In fact, the judge agreed with every one of my requests except for one, finding this interrogatory to be irrelevant:
Interrogatory: Have you ever received any bailout money of any kind from the United States government, either pursuant to TARP or otherwise? If so, please identify the amount of money you received and how and when the money was spent/used/allocated. In your answer, please be sure to disclose the extent to which any such funds were used to provide loans of homeowners in Volusia County, Florida.

My argument for requiring the bank to answer this interrogatory went something like this … Mortgage foreclosure cases are proceedings in equity. A claim for a deficiency is a claim sounding in equity. There is nothing equitable about a bank taking billions of dollars in taxpayer bailout money, including from my clients, which money was intended to avoid foreclosures and provide loan modifications, but for those banks to refuse such modifications. Worse yet, there is nothing equitable about banks getting this bailout, flooding the real estate market with foreclosed properties, driving down property values because of those foreclosures, and then recoup 100% of its alleged deficiency, which it created, despite having been bailed out.

Unfortunately, despite agreeing with me on everything else, the judge did not require an answer to that interrogatory, strongly suggesting (without saying) that he did not agree with the premise of my argument. Respectfully, that’s terribly disappointing. Do you seriously mean to tell me that a bank should get to collect billions in bailout money, not use that money for loan modifications, create a flood of foreclosures in the real estate market, cause prices to drop, create a deficiency, foreclose, collect 100% of the deficiency, and that a homeowner can’t argue “wait, you shouldn’t be able to do this?”

Even if you don’t agree with that argument, I certainly think I should at least be able to argue it. To present evidence to support it (under Florida’s broad discovery rules).

I hope everyone reading this will think long and hard about that issue. Think about the broad discovery rules. Think about how mortgage foreclosure cases are proceedings in equity. Is it really that unreasonable for homeowners to ask, in the face of a lawsuit for foreclosure and a deficiency, “where did all the TARP money go?”

More importantly, if you’re a Florida homeowner, make sure you realize the rights you enjoy during the discovery process. I didn’t win on that interrogatory, but I won on 17 others, and I assure you – forcing the banks to answer such questions will only help as you fight your foreclosure.

End Post!

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Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

What Homeowners in “Pro Se” Foreclosure Litigation Needs to Know About Perjury.

02 Monday Jun 2014

Posted by in Federal Court, Foreclosure Defense, Fraud, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Scam Artists, State Court, Your Legal Rights

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In foreclosure defense litigation across the Country, many large financial institutions and their well paid Attorneys routinely commits crime of perjury on a daily basis. Some of the way these entities perpetrate this crime, is by furnishing witnesses who made false statements under oath; or filling false affidavits and furnishing worthless pieces of forged documents in the forms of exhibits bearing false impressions; and of course, (getting Away with it), in their fraudulent attempts to illegally foreclose on properties they do not own.

In its most simple form, perjury is lying under oath. The crime of perjury is the willful swearing, either spoken or in writing, to tell the truth and then giving false information.

Perjury can occur even if the person has not been sworn to tell the truth, such as in a courtroom. Merely signing a document under penalty of perjury that contains false statements can be a crime. Signing an income tax return that contains false information is an act of perjury, for example.

In most jurisdictions, the false information has to be material to the issue or affect the outcome for perjury to be a chargeable crime. If the false statement directly affects the results of the case or causes a unjust decision to be made, the person can be charged with perjury.

Because the crime of perjury can cause a miscarriage of justice to occur, it is considered a very serious crime. Under U.S. federal law, for example, perjury is a felony punishable by up to five years in prison.

“I swear to tell the truth, the whole truth, and nothing but the truth” – a mantra recited dozens of times a week in TV shows and movies. It’s so familiar that its significance can be overlooked. But, when sworn in a court or other official proceeding, it makes everything said afterward either the truth or perjury.

Perjury, the crime of lying under oath, is a serious offense because it can derail the basic goal of the justice system—discovering the truth. Even the famous and the powerful have faced the consequences of perjury, which include prosecution (Barry Bonds), prison (Marion Jones), and impeachment (Bill Clinton).

Historically, perjury was defined as lying while testifying in court. The law now defines the crime to cover not just trials but also many other proceedings, including grand juries, family law court, bail hearings, Congressional committee hearings, and depositions in civil lawsuits. Sworn statements made to governmental agencies such as the Social Security Administration or in financial affidavits (such as loan applications) are also covered.

It’s also a criminal offense to cause another to commit perjury, called suborning perjury.

What Is Perjury?

A witness under oath commits perjury by making a statement in a court or other proceeding that the witness knows is not true. The statement must be “material” to the subject of the proceeding, meaning that it must have some relationship to the lawsuit, investigation, or inquiry of the proceeding. All parts of this definition are important, so let’s take a closer look at each:

 

  • Perjury only happens under oath. The witness must have vowed to tell the truth to someone who is authorized to administer the oath, such as a judge, notary public, or other official. And, the proceeding must be “competent,” that is, authorized by law. For example, a grand jury that has launched an investigation that is beyond its powers is not a competent proceeding.
  • Perjury requires a statement. Silence or a refusal to give a statement is not perjury (but may lead to other charges). In addition to testimony, a statement adopted in the proceeding, as when a witness authenticates a false writing while under oath, is also perjury.
  • Intent to mislead. The witness must know that the testimony is false and must give it with the intent to mislead the court.
  • Only false statements are perjury. False testimony that results from confusion, lapse of memory, or mistake is not perjury. Conflicts in testimony may be perjury if one of the conflicting statements is necessarily false (and prosecutors can prove perjury without proving which one is false).
  • Inconsistent statements can lead to perjury. A witness’s testimony is viewed as a whole. So, a witness who claimed he did not remember an event when questioned at one point in testimony, but who clearly recalled aspects of the event when asked later, may have committed perjury. (Inconsistency under oath is what led to Bill Clinton’s impeachment.) But, where a witness’s testimony is inconsistent in a way that is of no consequence in the proceeding, that is not perjury.
  • Statement made in court or other proceeding. False statements made outside of official proceedings are not perjury. For example, if a witness lies to a lawyer who is taking notes in order to draft an affidavit, the witness has not committed perjury (unless she later signs the affidavit under oath with the false statement in it). Sworn, written statements submitted to courts or government agencies are statements made in a proceeding and subject to perjury laws.
  • Only a “material” statement can be perjury. The false statement must be capable of influencing the proceeding – that is, it must have a relationship to the subject of the proceeding. This includes a false statement that would tend to mislead or hamper an investigation. This means that a lie, even under oath, about a subject that is not material to the proceeding is not perjury. For example, falsely bragging that “I never update my Facebook page at work,” while testifying in a case having nothing to do with social networking at work, would not be a likely candidate for a perjury charge.
  • A material statement that is superflouos to the outcome may still be perjury. Even where false testimony does not affect the outcome of a case, the lying witness may be prosecuted for perjury. For example, suppose an ex-cop is on trial for his involvement in a gambling operation. Several witnesses have testified to his involvement, but on the stand, he falsely denies any involvement. This denial would be a material statement, even though it arguably did not affect the jury’s finding of guilt (the jury had the other witnesses’ testimony to rely on).

Common Defenses to Perjury 

Here are some common defenses to perjury.

True statements

Remember, perjury is giving false testimony—saying or writing something that is not true. This means that true statements, even when made to intentionally mislead, are not perjury. For example, where a defendant in a mail fraud case testifies that he did not “send” the fraudulent document because he did not actually put the document in the mailbox himself, he has told the literal truth and has not committed perjury. In such a situation, the prosecutor has to ask further questions (such as, “did you direct someone to drop the document in the mailbox?”) in order to get the defendant to admit to participating in the fraud, or get the defendant to lie about participating.

Recanted or corrected statements

Sometimes, witnesses say or write something that they later recant. Whether their change of heart constitutes a legally recognized defense to a perjury charge depends on the law of the state where charges would be brought. If the case were to be brought in federal court, one of two results is possible, courtesy of the two federal laws that concern perjury:

  • A person charged under a broad perjury statute (18 U.S.C. §1621) won’t necessarily avoid prosecution even by recanting during the same proceedings where she committed the perjury, but the recantation can be taken into consideration to show that the person did not intend to mislead.
  • Someone may be able to avoid eventual prosecution by recanting or correcting the false statement, but must do so during the same proceeding in which it was made; and the false statement must not have “substantially affected” the proceedings. But this only works if the witness is charged under the second, narrower statute (18 U.S.C. §1623). However, by admitting to the prior false statement (in order to take it back), the witness may open herself up to prosecution under the broader statute described above (§1621)! Needless to say, a witness who must decide whether to recant a false statement needs the advice of an experienced attorney (see below).

The “perjury trap”

In some cases, the prosecutor will call a defendant solely because the prosecutor knows that he will likely lie under oath, committing perjury, and the prosecutor doesn’t need his testimony for any other purpose. In these cases, a defendant will claim that this has happened and the prosecutor will deny it. Whether or not a prosecutor has actually set this “perjury trap,” this is a hard defense to raise, for two reasons:

  • No materiality. For a perjury charge to stick, the lie must be material, as explained above. But where the perjury trap involves asking about something that doesn’t really matter, the lie won’t rise to the level of perjury. So the better course is to claim simply that there’s no materiality.
  • The prosecutor’s hopes that the witness will lie aren’t enough to defeat the charge. After all, hoping a witness will lie doesn’t make that witness do so. As long as the questions asked of the witness are related to the issue under investigation or raised in a lawsuit, the prosecutor is not setting a trap, even if the prosecutor harbors a hope that the witness will lie.

Defenses that aren’t

Some defenses that you might think will apply will not be available in a perjury prosecution in certain situations. They include:

  • Double jeopardy. This defense claims that the defendant is being tried twice, in the same jurisdiction (court), for the same offense. It doesn’t apply when a defendant is being tried for a crime, but then is charged later for perjuring himself during trial. For example, a defendant in a rape case who was acquitted based on DNA evidence but lied under oath about his alibi may still be prosecuted for perjury.
  • The limits of immunity. Prosecutors sometimes offer immunity from prosecution to witnesses who themselves are (or could be) subject to criminal charges, but who have important information that would support a case against another, more serious criminal defendant. For example, a low-level accomplice might be granted immunity so that he can testify against a crime syndicate’s boss. But false testimony given after a prosecutor has granted a witness immunity may still be prosecuted as perjury!

How is Perjury Punished?

A person convicted of perjury under federal law may face up to five years in prison and fines. The punishment for perjury under state law varies from state to state, but perjury is a felony and carries a possible prison sentence of at least one year, plus fines and probation. Penalties are increased in relation to how much the perjury interfered with the proceeding. When the perjurer was a witness in his own criminal trial, his sentence for the underlying conviction may also be increased, on the grounds that a lying defendant is one who has a bad character and is not likely to be rehabilitated quickly.

Judges can punish a perjurer who lied under oath to hide or assist a crime in a way that goes beyond the sentence for perjury. That defendant may also be charged as an accessory to the crime he was attempting to hide or assist, if that charge will carry a greater sentence. And a perjurer may even be charged as an accessory to a crime of which he is convicted, if he lied to conceal that crime.

There is no civil remedy for a criminal defendant wrongly convicted based on another’s perjury, nor for a party to a civil lawsuit who loses because of a witness’s perjury.

A person who commits perjury also may have violated other laws that do provide remedies.

Homeowners need to fight these crime of perjury that is routinely crippling our justice system.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; amongst other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

How Homeowners in Foreclosure Proceeding Can Effectively Rebuild their Credits After Short Sale

28 Wednesday May 2014

Posted by in Foreclosure Crisis, Foreclosure Defense, Judicial States, Non-Judicial States, Your Legal Rights

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Homeowners in recent foreclosure proceeding who wish to move on with their lives needs to start by rebuilding their credit worthiness.

Have you experienced a short sale? How big of a hit did your credit score take? What steps did you take to help rebuild your credit?

In a short sale, the mortgage lender agrees to let a homeowner accept an offer for their home that’s less than the amount owed on the loan. The bank takes all the proceeds, but the seller walks away with the remaining debt forgiven.

Choosing to go that route will put a serious dent in your credit score, but it’s not a fiscal death sentence. You can rebuild your credit and your finances after a short sale.

Immediately After a Short Sale of Your Home

In many cases, banks and lenders view a short sale as the equivalent to a foreclosure. Credit bureaus and future lenders consider it similarly to a default on your mortgage. The three major credit bureaus list it on your credit reports for seven years, but you can take steps immediately after a short sell to help restore your financial profile.

“You should regularly pull your free credit reports through AnnualCreditReport.com,” For someone who is rebuilding their credit, they could consider accessing one of their three available reports every four months in order to check for accuracy in addition to any unfamiliar or fraudulent activity.

Another critical task is to ensure that your loan balance has been forgiven. If it hasn’t been, you could find a collection company coming after you. Be aware, you also must claim the forgiven debt as income when you next file taxes.

Building and rebuilding credit is like the fable of the tortoise and the hare: Slow and steady wins the race. The short sale has less of an impact on your credit score each year after the event.

One to Four Years After a Short Sale

In those first few years, focus on small financial victories. “A simple and free way to begin the credit rebuilding progress is, first to ensure all utility, cell phone contracts and Internet provider payments are made on time and in full,” says Christensen. Ask these companies if they report your on-time payments to at least one of the three major national credit bureaus. He says they’re not typically required to do so, but they often will if asked.

The credit bureaus don’t give utility and cell phone payments as much weight as good credit card stewardship, but they will help move the needle. And every little bit helps.

You may also find that without notice, other creditors will lower your credit limit after your short sale. Wording giving them that option is often included in the fine print of the contracts and user agreements of credit cards and other debt. Don’t let that be a reason to make any more damaging credit moves.

Keep paying bills on time, avoid applying for new credit, and don’t close credit card accounts, You’ll want to keep the cards open so that as you pay down your balances, your debt to credit available ratio is lowered, which improves your score.

Good budgeting can be one of your most vital tools in the years following a short sale. With a damaged credit score, you may find yourself with little to no ability to depend on credit cards as a backup plan. So it’s doubly important that you work to build up a solid emergency fund and prepare a written monthly family budget.

Several Years After a Short Sale

If you do not have many open accounts after a short sale, you may want to try rebuilding your credit score by applying for a secured credit card. You may also be able to find a small loan offed by a bank or credit union in your area that specializes in helping to build up your credit.

“A secured card is one in which you put up a certain amount on deposit that you cannot access,”. “The Bank in turn gives the borrower a credit card with a limit in the same amount of the deposit.”

A secured credit card works just like an unsecured one. There is little risk to the banks and credit unions that offer these cards because your deposit acts as collateral and your self-imposed credit limit. These cards are a good way for a borrower to rebuild credit.

You’re not entirely out of luck if you’d like to try again as a homeowner, either. In many cases, you do not have to wait the full seven years it will take for the short sale to vanish from your credit report before you can buy another home.

“If you were current on your mortgage payments and also did not have a job loss, you can apply for a VA loan two years after selling a home in a short sale,” says Phil Georgiades, chief loan steward for VA Home Loan Centers. “You can also apply for a FHA mortgage three years after a short sale and a conventional mortgage four to seven years after your short sale.”

Homeowners who are still in their homes, but preferred to save their home rather than Short Sale should do one or two things.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; amongst other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Are the Options for Homeowners in Foreclosure

28 Wednesday May 2014

Posted by in Foreclosure Defense, Your Legal Rights

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Many new homeowners are confused on the transactions involving their mortgage loans right after the close of escrow. In many cases, homeowners store their mortgage loan documents without reviewing them for errors that needed to be corrected immediately.

Most new buyers rarely knew about problems that mortgage document errors could create for them in the future if not corrected immediately either before or after the close of escrow.

This post is designed to address some of the questions that new homeowners usually encounter;

How do I know who my lender is and how to contact them?

Look at your monthly mortgage coupons or billing statements for the name of your lender and contact information.

I do not remember what type of mortgage loan I have, how can I find this information?

Look on the original mortgage documents or call your mortgage lender.

Do I need to keep living in my house to qualify for assistance?

Typically, yes, but call your lender to discuss your specific circumstances and get advice on options that may be available.

What type of information should I have ready to discuss with a lender?

Typical information requested by lenders in a workout package include:

  • Brief explanation of circumstances
  • Recent income documents
  • List of household expenses


My employer has already announced layoffs within the coming months, what can I do now?

Through this website you have taken the first step toward educating yourself about available options. Determine if the layoffs will cause a financial hardship that will make it hard for your family to make your mortgage payments. If so, consider other resources that you have available to pay your mortgage. Review your spending habits and see where you can reduce spending. If you have a lot of consumer debt, consider contacting a non-profit, consumer credit counseling agency. Take advantage of any employer offered resources. If you still believe that you will have trouble making your mortgage payments, contact your lender right away.

Will there be any out-of-pocket expenses if I am approved for a workout option?

Some workout options do include expenses that the borrower is expected to pay, for example, recording fees for a loan modification. Because, every situation is different you should contact your lender for more information. However, if a lender has no contact with a borrower and has to start foreclosure, the legal fees that the borrower will be expected to pay can be very expensive. To avoid unnecessary legal fees, call your lender as soon as you realize you are in trouble.

What happens when I miss my mortgage payments?

Foreclosure may occur. This is the legal means that your lender can use to repossess (take over) your home. When this happens, you must move out of your house. If your property is worth less than the total amount you owe on your mortgage loan, your lender or HUD could seek a deficiency judgment. If that happens, you not only lose your home, you also would owe your lender or HUD an additional debt.

Foreclosure or a deficiency judgment could seriously affect your ability to qualify for credit in the future. So you should avoid it if all possible!

What should I do if I miss mortgage payments?

Do not ignore the letters from your lender. If you are having problems making your payments, contact your lender immediately. Explain your situation. Be prepared to provide them with financial information, such as your monthly income and expenses. Without this information, they may not be able to help.

Stay in your home for now. You may not qualify for assistance if you abandon your property.

Contact a HUD-approved housing counseling agency. They have information on services and programs that could help you. The housing counseling agency may also offer credit counseling. These services are usually free of charge.

If you bought your home with a Veterans Administration (VA) guaranteed loan, call the VA office nearest you.

What are my alternatives?

Your options include the following:

  • Special forbearance: Your lender may be able to arrange a repayment plan based on your financial situation. Your lender may even provide for a temporary reduction or suspension of your payments. You may qualify for this if you have recently lost your job or your source of income or if you had an unexpected increase in living expenses. You must furnish information to your lender to show that you would be able to meet the requirements of the new payment plan.
  • Mortgage modification: You may be able to refinance the debt and/or extend the term of your mortgage loan. This may help you catch up by reducing the monthly payments to a more affordable level. You may qualify if you have recovered from a financial problem but your net income is less than it was before the default (failure to pay).
  • Partial claim: Your lender may be able to work with you to obtain an interest-free loan from HUD to bring your mortgage current.

You may qualify if your loan is at least 4 months delinquent but no more than 12 months delinquent; your mortgage is not in foreclosure; and you are able to begin making full mortgage payments.

When your lender files a Partial claim, HUD will pay your lender the amount necessary to bring your mortgage current. You must execute a promissory note, and a Lien will be placed on your property until the promissory note is paid in full. The promissory note is interest-free and will be due if you sell or leave your property, or when your mortgage matures.

Pre-foreclosure sale: This will allow you to sell your property and pay off your mortgage loan to avoid foreclosure and damage to your credit rating.

You may qualify if the “as is” appraised value is at least 70% of the amount you owe and the sales price is 95% of the appraised value; the loan is at least 2 months delinquent prior to the pre- foreclosure sale closing date; and you are able to sell your house within 3 to 5 months (depending on what your lender agrees to).

An additional benefit to this option is the assistance you will receive with the Seller-paid closing costs.

Deed-in-lieu of foreclosure: As a last resort, you may be able to voluntarily “give back” your property to the lender. This won’t save your house, but it will help your chances of getting another mortgage loan in the future.

You can qualify if you are in default and don’t qualify for any of the other options

your attempts at selling the house before foreclosure were unsuccessful; and you don’t have another FHA mortgage in default.


How do I know if I qualify for any of these alternatives?

A housing counseling agency can help you determine which, if any, of these options may meet your needs. You should also discuss the situation with your lender.

Should I be aware of anything else?

Yes. Beware of scams! Solutions that sound too simple or too good to be true usually are. If you’re selling your home without professional guidance, beware of buyers who try to rush you through the process. Unfortunately, there are people who may try to take advantage of your financial difficulty. Be especially alert to the following:

Equity skimming: In this type of scam, a “buyer” approaches you, offering to get you out of financial trouble by promising to pay off your mortgage or give you a sum of money when the property is sold. The “buyer” may suggest that you move out quickly and deed the property to him or her. The “buyer” then collects rent for a time, does not make any mortgage payments, and allows the lender to foreclose. Remember that signing over your deed to someone else does not necessarily relieve you of your obligation on your loan.

Phony counseling agencies: Some groups calling themselves “counseling agencies” may approach you and offer to perform certain services for a fee. These could well be services you could do for yourself, for free, such as negotiating a new payment plan with your lender, or pursuing a pre-foreclosure sale. If you have any doubt about paying for such services call a HUD-approved housing counseling agency. Do this before you pay anyone or sign anything.

Are there any precautions I can take?

Here are several precautions that should help you avoid being “taken” by scam artist:

  • Don’t sign any papers you don’t fully understand
  • Make sure you get all “promises” in writing
  • Beware of any loan assumption where you are not formally released from liability for your mortgage debt and contracts of sale
  • Check with a lawyer or your mortgage company before entering into any deal involving your home
  • If you’re selling the house yourself to avoid foreclosure, check to see if there are any complaints against the prospective buyer. You can contact your state’s Attorney General, the State Real Estate Commission, or the local District Attorney’s Consumer Fraud Unit for this type of information.


What are the main points I should remember?

  • Don’t lose your home and damage your credit history if you can help it
  • Call or write your mortgage lender immediately
  • Stay in your home to make sure you qualify for assistance
  • Arrange an appointment with a HUD-approved housing counselor to explore your options
  • Cooperate with the counselor or lender trying to help you
  • Explore every alternative to losing your home
  • Beware of scams
  • Do not sign anything you don’t understand. And remember that signing over the deed to someone else does not necessarily relieve you of your loan obligation
  • Act now. Delaying can’t help. If you do nothing, You will lose your home and your good credit rating


What is the Best Way to Avoid a Foreclosure?

The best way to avoid home foreclosure from the get-go is to understand that the purchase of real estate is one of the biggest transactions most people will face in their lives. Given such great importance, it is essential that a potential home buyer enter the process with both eyes wide open and educated on how to correctly go about buying the right property for them so that foreclosure never becomes an issue.

What is the Best Way to Avoid Foreclosure Once the Process Has Begun?

Once the foreclosure process has run its course, it is too late. Foreclosure leaves a black mark on the homeowner’s credit history that may stay with them for as many as 10 years, making it harder and more expensive to obtain credit and to purchase things for anything other than cash.

Mistakenly, many homeowners facing foreclosure wait until the 11th hour to try and do something about it in order to avoid the after effects of home foreclosure. Once in default, the homeowner faces the real possibility of losing his or her home. Fortunately, there are a number of things that can be done to avoid home foreclosure:

  • Cure the default by paying the loan current; in other words, pay up the back payments owed along with any penalties and interest
  • Redeem the property by paying off the entire loan amount owed before the property goes to auction (this is the only option once the period to cure the default has expired)
  • Refinance the property, if the lender will allow it
  • Sell the property outright; depending on whether the current market climate is a seller’s market or a buyer’s market this may not be as easy as people think
  • Request a short sale from the lender; this option to sell the property for less than the amount owed on it also depends on the lender’s cooperation
  • File for bankruptcy and seek a stay of the foreclosure.

When Everything Fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; amongst other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

Why Financial Planning is the Key to Saving Your Home from Foreclosure

28 Wednesday May 2014

Posted by in Bankruptcy, Foreclosure Crisis, Foreclosure Defense, Pro Se Litigation, Your Legal Rights

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Many homeowners who found themselves in the unfortunate situation of mortgage loan default often wonder, if they could have prevented it.

The best foreclosure prevention takes place before you purchase a property — whether it be a primary residence or an income property. Proper financial planning, including creating a budget and performing disciplined research, should enter the equation long before escrow even opens.

Many people learned this valuable lesson much too late during the most recent market cycle and bubble burst. They bought more house than they could rightly afford, signed on using questionable financial instruments to pay for it, and as a result faced the possibility — and in many cases the eventuality — of foreclosure.

From the loss of a job or the drain of equity in the property (going negative or “underwater”), to divorce or a major medical crisis, an individual’s or family’s funds can be depleted rather quickly, forcing them to make a choice between which bills to pay and which ones to hold off on. In many situations the ultimate choice comes down to a decision between paying the mortgage, the credit cards, or keeping food on the table. In any case, it’s not an enviable position to be in.

While many of these situations are unforeseeable, the best thing to do with what is many people’s most costly asset is to be proactive and try to prevent the possibility of foreclosure ahead of time.

There are a number of reasons why a property owner could be facing foreclosure. Given the correct set of circumstances, any one of them could lead to financial hardship, causing the owner/borrower to miss making mortgage payments and leading to the lender initiating the foreclosure process.

Create a Budget and Stick to It

It may be an old saying, but living within your means is the most prudent way property owners can protect what is in many cases their most expensive asset. Too many property owners went into foreclosure during the last cycle because they treated their home or income property as an ATM, pulling cashing out their equity to buy cars, pay for vacations, buy furniture, renovate their home, or to pay college tuition for their children.

When you’re borrowing hundreds of thousands of dollars to purchase property, you need to make sure the financial numbers add up before you move forward. A proper budget creates a structure that prioritizes your monthly finances so that you spend your money on what is most important. It protects you from wasting your cash on whims and ending up short on the items that are critical, like your monthly mortgage payment.

Financial planners typically recommend a six-month savings cushion, meaning you should be able to continue to make all your financial commitments for six months if your income is completely cut off. That’s a great rule of thumb, but many people find it tough to get there because their monthly income is already stretched to the limit.

Still, if you want to drastically lower the risk of ever defaulting on your mortgage payments or losing your home to foreclosure, it’s critical that you build some savings into your budget. Even if it’s just a few dollars a month, be disciplined about setting aside cash for that rainy-day fund. If you end up saving enough for six months, funnel those monthly savings toward paying down extra principal on your mortgage (assuming your mortgage does not have a pre-payment penalty).

What can be done to avoid foreclosure?

Even the best planning and budgeting can’t always stave off unforeseen circumstances. Whenever a property owner finds him or herself in a position where those circumstances turn to financial hardship, the best thing to do is to call the lender right away. Report the circumstances to the lender (not the company servicing the mortgage since all they are is a debt collector).

Ask the lender what can be done to avoid going into foreclosure. There may be alternatives to foreclosure available that could make a difference in terms of to what extent the owner/borrower’s credit history is affected, if at all.

From a loan modification and principal reduction, to the lender approving a short sale or accepting a deed in lieu of foreclosure, the option chosen can make a difference as to the future availability of credit to the borrower.

DON’T file for bankruptcy protection

Many people are under a false impression that they can save their home and other assets simply by filing for bankruptcy protection. Nothing could be further from the truth.

The bankruptcy laws were not put in place to shield people from anything bad happening to them. To the contrary, one must think long and hard about filing for bankruptcy before hiring a bankruptcy attorney and proceeding with the process. Like a foreclosure, bankruptcy stays with you on your credit report for years to come, so it is not a step to be taken lightly.

Most importantly, bankruptcy does NOT either prevent or avoid foreclosure, it can only delay it…at best. At worst, the foreclosing lender could convince the judge to allow the foreclosure to proceed right away without granting even a temporary stay. In any case, all the defaulting borrower has done is delayed the inevitable.

Foreclosure Prevention

The biggest lesson to take away from the most recent foreclosure crisis is that many of the foreclosures that took place from 2007 through 2012 could have been prevented with proper financial planning. And the best plan to start with is a proper budget.

There are plenty of budgeting software programs out there for tech savvy consumers to upload to their computers. And for those who aren’t into computer programs, there’s nothing wrong with a legal pad and a pen to start outlining a family budget. Put down your monthly gross income, your monthly expenses, and leave plenty of room for unexpected expenses which will most certainly arise.

It’s never too late to get started!

However, if you have already found yourself in the unfortunate foreclosure proceeding, your best option at this point is to defend and protect the equity in your home!

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; amongst other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

9 Options For Homeowners Facing Foreclosure

26 Monday May 2014

Posted by in Banks and Lenders, Federal Court, Foreclosure Defense, Judicial States, Loan Modification, Non-Judicial States, Pro Se Litigation, State Court, Your Legal Rights

≈ 2 Comments

Many Homeowners facing foreclosure often wonder what are their best possible options. This post is designed to let homeowners struggling with mortgage payments what their best possible options are.

Option #1: Renegotiate with the lender

Step one is to contact your lender as soon as you know you can’t make a payment. The faster you move the more options you’ll have to fix your financial future. Borrowers may have the option of renegotiating their loan with the lender. Try to negotiate a plan that will enable the loan to be back in service. Lenders don’t want the property back; they want to keep their loan portfolio full of performing loans — not defaulting loans. Lenders say that the sooner they hear from a delinquent borrower in trouble, the easier it is to negotiate a solution.

Option #2: Reinstatement

Prior to a foreclosure sale, borrowers have the right to reinstate a delinquent loan. The reinstatement option gives homeowners the opportunity to make up back payments plus any incidental charges incurred by the bank such as filing fees, trustee fees and legal expenses. Paying off the reinstatement amount will cancel the foreclosure and enable the homeowner to continue to live in the home as if no default occurred. For many delinquent borrowers, however, reinstatement is not an option because they are deep in debt and cannot make up back payments, plus other expenses. Consult with a real estate attorney or an experienced real estate broker because reinstatement laws vary from state to state.

Option #3: Forbearance

One of the most overlooked foreclosure options a borrower has is forbearance. Forbearance is the postponement for a limited time of a portion or all of the payments on a loan in jeopardy of foreclosure. Partial or full payment waivers had their origins in the Great Depression. A lender expects that during the moratorium period the borrower can solve the problems be securing a new job, selling the property or finding some other acceptable solution.

Depending on your lender, you may be able to restructure your loan. For example, delinquent mortgage payments may be added to the backend of the borrower’s scheduled payments or the borrower could be given more time to bring the late payment current. Some mortgage companies are able to arrange a repayment plan based on your current financial situation. You may qualify for this option if you recently lost your job. Call your lender and inquire if you meet the requirements for forbearance.

Option #4: Redemption

To redeem a loan, the borrower must pay off the loan in full. Borrowers may accomplish this by refinancing (with a family member cosigning perhaps) or by a friend or relative bailing out the borrower in exchange for equity or some other financial arrangement. Again, redemption rights — like reinstatement rights — vary from state to state. Most states permit redemption up to the foreclosure sale.

Option #5: Sell the Property

For owners who don’t care to save the property, or who have no other choice than to let the property go, selling the property may be a smart choice. If you have enough equity in the house to allow you to pay off the mortgage in full, then a sale is usually your best option. This option preserves your equity and what’s left of your credit score. Selling also leaves you in a much better financial position should you want to buy another home in the future. Even if you don’t have equity, you may be able to arrange a short sale, where the bank agrees to forgive the mortgage debt for less than the total amount owed on the mortgage if you sell the property to a third party. The advantage to the lender is that it does not have to deal with costly foreclosure proceedings.

Option #6: Deed in Lieu of Foreclosure

For homeowners who have no opportunity to reinstate, redeem or even sell their property and just want out of the property, a deed in lieu of foreclosure may be viable option. Essentially, a deed-in-lieu of foreclosure is a transfer of title from a borrower to the lender, which the lender accepts as full satisfaction of the mortgage debt. With this option, you as a borrower voluntarily “give back” your property to the mortgage company. You won’t save the house, but you do avoid the trauma of foreclosure and reduce the negative impact on your credit.

Option #7: Bankruptcy

Filing bankruptcy is not a permanent cure for foreclosure, but it can temporarily halt the foreclosure process. Once a borrower in default files a petition for bankruptcy, foreclosure proceedings stop immediately. A homeowner, however, must hire an attorney in order to file bankruptcy, which can be expensive. Before considering this option, a homeowner should consult a real estate attorney.

Option #8: Foreclosure

Allowing the foreclosure to proceed to the auction is generally the worst choice. By doing nothing, homeowners will lose their home and any equity they have earned. Plus they will damage their credit at the same time. Moreover, some states allow lenders to go after borrowers in court for any deficit between what the house eventually sells for and what the homeowner owes. This is called a deficiency judgment. Unfortunately, many homeowners chose this option, putting their heads in the sand and hoping they’ll win the lottery and avoid foreclosure.

Option #9: “PRO SE” LITIGATION

“Pro Se” Litigation (Self Representation – Do it Yourself) – for Mortgage Fraud using foreclosure defense package found at http://www.fightforeclosure.net homeowners preserved their equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for mortgage fraud amongst other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

Six Most Effective Ways For Homeowners to Stop Foreclosures

25 Sunday May 2014

Posted by in Bankruptcy, Banks and Lenders, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Loan Modification, Non-Judicial States, Pro Se Litigation, State Court, Your Legal Rights

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In recent years, many homeowners found themselves in difficult financial situations that requires serious round the table decision making.

Anytime a homeowner runs into financial trouble dire consequences can enter into the equation. That is especially true when it comes to foreclosure of the home that was used to secure the debt owed to the lender who is now foreclosing to get title to the property back.

However, there are several methods that homeowners in financial distress can use to stop foreclosure fast. Some methods require money, while others require agreement to forgo money by the lender or through the court system using the complete foreclosure package found at http://www.fightforeclosure.net

Here’s 6 steps to take that can help stop the foreclosure process dead in its tracks:

Step 1: Don’t Panic.

Most households have a surprising array of assets that can be used to make payments and delay foreclosure. Unemployment insurance, disability insurance and savings are each potential cash sources. Household budgets can be slashed. Big, expensive cars can be traded in for cash. Retirement funds are often available — but be aware that withdrawals may result in penalties and additional income taxes.

Step 2: Late and Missed Payments.

If problems cannot be delayed or deferred, and if mortgage payments will be late or unpaid, then you MUST contact the lender as soon as possible.

At this point your goal is to help the lender create a “workout” agreement that effectively modifies your mortgage so that the foreclosure can be stopped before going to completion.

Step 3: Look at Workout Options.

Once you enter into discussions with a lender or a “servicer” — the company that services the loan for an investor — any number of options are open. While lenders are typically NOT required to modify loan arrangements, many will. The usual choices include:

Loan Modification: “This option should be considered when the borrower experiences difficulty making regular mortgage payments as a result of a permanent or long-term financial hardship,” says Liz Urquhart with AIG United Guaranty, a leading private mortgage insurance company. “Reducing an above-market interest rate to a market rate and/or by extending the original terms of the note may enable the borrower to continue making payments. Permanent interest rate reductions appeal most to borrowers, but even a temporary rate reduction of one to three years can provide substantial help.”

 

  • Repayment plans: Say you must miss a payment and that each payment is $1,000. With a repayment plan you might pay $1,075 a month until the missing money is repaid.
  • Reinstatement: Imagine you missed two or three monthly payments. With a reinstatement, or what is also known as a “temporary indulgence,” you bring your loan current, pay late fees and other costs, and the loan continues as before.
  • VA Refunding. If you have a loan backed by the Department of Veterans Affairs, the VA may buy the loan from your lender and take over the servicing. If you have the ability to make mortgage payments, but your loan holder has decided it cannot extend further forbearance or a repayment plan, you may qualify for refunding, according to the VA.
  • FHA loans: If you financed with a loan guaranteed by the Federal Housing Administration, call 1-800-569-4287 or 1-800-877-8339 (TDD) to reach a HUD-approved housing counseling agency for assistance and advice.
  • Forbearance: This is a temporary change in mortgage terms, such as the right to skip a payment or make smaller payments for a year or less.
  • Private mortgage insurers. Mortgage insurance companies typically require lenders to begin foreclosure proceedings once a delinquency reaches 150 days or when a sixth missed payment is due. However, such requirements may be waived in areas impacted by natural disasters and for other reasons.
  • Claim advance: If you bought with less than 20 percent down then either the loan is self-insured by the lender or you have private mortgage insurance (PMI). In some cases PMI companies will provide a cash advance to bring the loan current — money which is sometimes interest free and need not be repaid for several years.
  • Disasters: Most lenders, but not all, will provide substantial relief in the face of hurricanes, earthquakes and other terrible events. Typical measures include a suspension of late fees, no late payment reports to credit bureaus, a pause in foreclosure actions and modified payment schedules. To get such benefits you must contact the lender as soon as possible after the disaster.
  • Re-amortization: In this case your missed payment is added to the loan balance. This brings your account current. However, says Saccacio, “since your debt has increased, future monthly payments may be larger unless the lender agrees to lengthen the loan term.”
  • Deed in Lieu: The deed-in-lieu would allow you to sign over legal ownership to your home for the lender’s agreement not to foreclose.
  • Short Sale: An arrangement where the lender accepts less than the mortgage debt in satisfaction for the entire loan amount. Also called a “compromise agreement” with VA loans. Be cautious: Saccacio says in some instances money not repaid may be regarded as taxable income. Also, lenders in some cases may sue to recover any shortfall.
  • Bankruptcy: When all other options are exhausted many homeowners consider bankruptcy as a last resort to save their home. Unfortunately, in most cases bankruptcy only delays the inevitable; in the  worst case it can actually speedup the process.
  • Full Blown “Pro Se” Litigation (Self Representation – Do it Yourself) –for Mortgage Fraud using foreclosure defense package found at http://www.fightforeclosure.net which will allow you to stay in your home for 3-5 years for free without making a red cent in mortgage payment.

 

Step 4: Refinance the Loan.

Since 2001 millions of loans with new formats have been issued, permitting low monthly payments for the first several years of the loan term and then much higher monthly payments thereafter.

If you have a loan where soaring payments are a certainty, don’t wait to refinance. Do it now while you have a strong credit profile and no missed payments.

Step 5: Sell the Property.

In some situations there is no workout or refinancing option which can save a property. If a job is lost, medical payments are overwhelming, or mortgage payments are rising to the point of bankruptcy the only plausible choice may be to sell the property.

If the situation is getting worse every month, you have to protect your interests and sell the property. This is a hard choice  but if you sell before foreclosure you will get a better price for the property and preserve your credit standing.

Most importantly, remember that there still are options, but you have to act quickly. Also, never rule out seeking out foreclosure assistance like using the package found at http://www.fightforeclosure.net to fight the lender for mortgage fraud among others.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will help you challenge these fraudsters and save your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

What Homeowners Needs to Know About Deed in Lieu of Foreclosure

25 Sunday May 2014

Posted by in Banks and Lenders, Foreclosure Defense, Judicial States, Mortgage Laws, Non-Judicial States, Note - Deed of Trust - Mortgage, Your Legal Rights

≈ 1 Comment

Homeowners faced with mortgage foreclosures often opted for Deed in Lieu of Foreclosure. However, is it the best possible option for the struggling homeowner?

“Can’t we negotiate? There must be a way to work this out so we can stay in our home!” This is one of the most common questions homeowners facing foreclosure ask themselves. We will give you some answers in this post.

Some Options are Better Than Others

Some — like going through the entire foreclosure process —will leave a black mark on your credit report for probably 10 years. Others — like simply walking away from the property — aren’t necessarily wise ways of dealing with the situation either.

Sometimes you’re out of options. Short of filing for bankruptcy (which only delays the inevitable, and does not STOP foreclosure in its tracks), sometimes your lender just isn’t willing to negotiate a loan workout or accept a short sale (agreeing to take less money on the sale of your property than the balance due on their underlying mortgage).

Then again, the lender MIGHT be willing to accept a deed-in-lieu of foreclosure. Depending on how severe your financial hardship is, and other factors, the deed-in-lieu would allow you to sign over legal ownership to your home for the lender’s agreement not to foreclose.

You are in effect giving up all claims and rights to the property in exchange for the ability to walk away from it without having to make another mortgage payment — and, possibly, without a mark on your credit report.

At the very most, maybe a light gray mark instead of a black mark, if any mark at all depending on whether the lender reports your mortgage as paid in full or not. Plus, once agreeing to the deed-in-lieu, the lender will likely have to waive its rights to any deficiency judgment, which saves you from having to pay off any deficiency amount awarded the lender by a court of law. However, should you find yourself in this situation where there may be a deficiency judgment involved, the best thing to do is to consult with a real estate attorney about possible options. You should contact a real estate attorney anyway if you are considering a deed-in-lieu because it involves you giving up some legal rights. However, if you suspect mortgage fraud on your real estate transaction or feel that laws where not followed by your lender during the foreclosure process, even after the home has been sold; you can take the “BULL BY THE HORNS” using the foreclosure defense package at http://www.fightforeclosure.net for a full blown litigation to save your home from mortgage fraud.

For further details about a deed-in-lieu, the U.S. Department of Housing and Urban Development (HUD) has both a detailed fact sheet about the deed-in-lieu option and frequently asked questions about disposing of a property this way.

Bottom Line About Deed in Lieu

A deed-in-lieu is a potential way out of foreclosure for distressed homeowners who are hard pressed to find their way back to financial solvency. It may not always be the best way, but it can be much better than going all the way through the foreclosure process or filing for bankruptcy unless you can muster enough courage to fight the Bank with the all inclusive package found here at http://www.fightforeclosure.net before it is too late.

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent foreclosure, and need a complete package that will help you challenge these fraudsters and save your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

What Homeowners Needs to Know About Proof of Claim in Bankruptcy Proceedings

12 Monday May 2014

Posted by in Bankruptcy, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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A. General
1. Except in Chapter 11 cases, in which certain scheduled claims are “deemed filed” a creditor desiring to receive distributions in a bankruptcy case must file a timely proof of claim.

2. A proof of claim is a written statement that sets forth the creditor’s claim. It must conform substantially to Official Form 10, which can be found in the Bankruptcy Rules. While completing the proof of claim form is not difficult, it must be done carefully to avoid mistakes that could give the trustee or the debtor grounds to defeat the claim.

3. In most cases, the Court will have sent to creditors a proof of claim form with the initial Notice of Commencement of Case.

4. With the implementation of mandatory electronic case filing (ECF) in most districts, proofs of claim must be filed electronically if filed by counsel, unless the lawyer has obtained an exemption.

B. Definition of Claim
1. A “claim” in bankruptcy is defined as:
“(A) a right to payment, whether or not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or
(B) a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. 
2. A “Debt” is defined in bankruptcy as “a liability on a claim.” 
3. Claims “arise” for bankruptcy purposes when all “transactions” or acts necessary for liability occur. 
4. A claim arises regardless of whether the claim is contingent, liquidated, or matured when the petition is filed. 

C. Filing Proofs of Claim
1. As noted above, proofs of claim must substantially conform to Official Form 10.
2. The creditor or the creditor’s agent must sign the proof of claim. 
3. Copies of the documents evidencing the claim, and evidence of perfection of any security interest claimed, must be attached to the proof of claim. 
4. The bar date establishes the date by which proofs of claim must be filed against the estate. The bar date is similar to a statute of limitations and must be strictly observed. 
5. For non governmental creditors, claims must be filed within 90 days after the first date set for the meeting of creditors. The bar date for governmental claims is 180 days after the date of the order for relief. 
6. In Chapter 11 cases, the court fixes the bar date for filing proofs of claim and notice of such deadline must be given to all creditors and parties in interest. 
7. A creditor may seek leave for an extension of time to file a late proof of claim due to inadvertence, mistake, or carelessness amounting to “excusable neglect” as well as due to intervening circumstances beyond the parties’ control. 

D. Secured Claims
1. “Secured claims” include “liens,” “security,” “security agreements” and “secured claims.” 
2. An allowed claim secured by a lien on property in which the estate has an interest, or that is subject to setoff, is a “secured claim” to the extent of the value of the creditor’s interest in the estate’s interest in the property, or the amount subject to setoff. A secured claim carries the right to “adequate protection” of collateral. 
3. Secured creditors are not required to file proofs of claim. The secured creditor holding a pre-bankruptcy lien need not file a proof of claim to preserve its status as a secured creditor, and the lien will pass through the bankruptcy case unaffected regardless of whether the secured creditor files a proof of claim. When there is a pre-petition arrearage, the secured creditor may wish to file a proof of claim to establish its claim for treatment in a Chapter 11 or 13 plan. Similarly, where the claim is only partially secured, the creditor may wish to file a proof of claim to establish a claim for the unsecured portion of its debt.
4. Common Mistakes
a. Failure to provide proof of debt. Rule 3001(c) requires that evidence of all claims based on a writing be filed with the proof of claim form. Most claims have some documentary evidence that should be filed with the proof of claim.
b. Misuse of check boxes. Official Form No. 10 contains boxes to check only for secured and priority claims. An unsecured claim without priority status under the Bankruptcy Code is the default, and there is no box to check for unsecured, non-priority claims. Creditors should only claim secured or priority status if there is a good faith basis to do so.
b. Failure to provide proof of perfection of security interest. The nature of the proof required depends upon the requirements for perfection of a security interest in the underlying collateral. For example, the creditor should provide copies of certificates of title for motor vehicles and manufactured homes, a copy of the recorded deed of trust for real estate, and copies of the recorded UCC-1 financing statement(s) for security interests in other personal property. If the documentation is lengthy, a summary may be provided.
c. Improper claim of priority status. Priority claims as prescribed by the Bankruptcy Code are paid before other claims, which is a considerable advantage. Creditors often claim priority status when they are not legally entitled to do so. A creditor should not file a proof of claim form alleging priority status without a good faith basis to do so.
d. Late Filed Claims. With few exceptions, claims filed after the bar date are subject to disallowance. Creditors who learn of a bankruptcy filing should file promptly a proof of claim even if they do not receive official notice from the Court.
e. Failure to indicate amended claim. Duplicate proofs of claim are a recurring problem for bankruptcy trustees. The proof of claim contains a box to check if a proof of claim replaces or amends a previously filed proof of claim. Creditors often file replacement or amended proofs of claim without checking the “replace” or “amends” box. This creates obvious confusion because it is not clear whether the latest claim is a new, separate claim. If the box is not checked, the debtor or the trustee may object on the grounds that one of the claims is a duplicate of the other, and an inattentive creditor may find that the preferred claim is disallowed. Checking the “amends” or “replace” box makes it clear that there is only one claim. It may be helpful to explain the reason for the amendment on the face of the proof of claim or in an attachment.

E. Allowance of Claims and Objections
1. If a proof of claim is timely and properly filed, it is “deemed allowed” unless a party in interest objects. 
2. Claims scheduled as undisputed, fixed or liquidated in Chapters 9 and 11 are deemed allowed even if no proof of claim is filed. 
3. A “party in interest” may object to the proof of claim. The objection becomes a “contested matter.” If the objection is joined with a demand for relief of the kind specified in Bankruptcy Rule 7001, it becomes an adversary proceeding. At least 30 days notice of a hearing is required on an objection to a proof of claim. 
4. Once filed, a proof of claim constitutes “prima facie evidence of the validity and amount of the claim”. As a result, the party objecting to a properly filed proof of claim has the initial burden of presenting sufficient probative evidence to overcome the prima facie effect of the proof of claim. 
5. Once the objector has produced “sufficient evidence to place the claimant’s entitlement at issue”, the burden of proof then shifts to the creditor to establish the validity and amount of its claim. The claimant bears the ultimate burden of establishing a valid claim by a preponderance of the evidence. 
6. Neither the Bankruptcy Code nor the Bankruptcy Rules establish an absolute deadline for filing an objection to a claim. In Chapter 7 cases, objections should be filed prior to any distribution by the Chapter 7 trustee. In Chapter 11 cases, the plan of reorganization will often include a deadline to object to claims.

F. Effect of Filing a Proof of Claim.
1. A proof of claim supersedes the claim as scheduled by the debtor. 
2. A claim is “deemed allowed” unless and until an objection is filed. 
3. Only creditors holding allowed claims are entitled to vote on the confirmation of a Chapter 11 plan of reorganization. If a party objects to a claim prior to the claimant voting on a plan of reorganization, the claimant is ineligible to vote on the plan. On request of the claimant, the Bankruptcy Court, after notice and a hearing, can temporarily allow the claim for voting purposes in an amount that the Bankruptcy Court deems proper. 
4. A creditor must hold an allowed claim in order to receive a distribution under a Chapter 7, a Chapter 13, or a Chapter 11 bankruptcy case. A properly executed and filed proof of claim establishes a creditor’s allowed claim, unless a party in interest objects. 
5. There is some risk for a creditor in filing a proof of claim because the creditor is generally deemed to have submitted itself to the jurisdiction of the Bankruptcy Court for purposes of the claim and issues related to the treatment and payment of the claim. This may not be desirable in all circumstances. It may result in a waiver of the right to a jury trial.

G. Objections

(1) An objection to claim is a “contested matter” under FRBP 9014. Except to the
extent otherwise provided in this rule, an objection to claim must comply with
LBR 9013-1 and be titled “Motion for Order Disallowing Claim” unless the
objection is to become an adversary proceeding pursuant to FRBP 3007(b).
(2) A claim objection must include the number, if any, assigned to the disputed claim
on the court’s claims register.
(3) A separate objection must be filed to each proof of claim unless:
(A) The objection pertains to multiple claims filed by the same creditor;
(B) The objection is an omnibus claim objection; or
(C) The court orders otherwise.
(4) An omnibus claim objection asserts the same type of objection to claims filed by
different creditors (e.g., claims improperly filed as priority claims, duplicate claims,
claims filed after the bar date, etc., as described in FRBP 3007(d)). In addition to
the requirements set forth in FRBP 3007(e), an omnibus claim objection must:
(A) Identify the name of each claimant and the claim number in the caption of
the objection; and
(B) Include as exhibits the documents supporting each claim objection
organized and indexed by claim number.
(5) If more than 20 objections in a case are noticed for hearing on a single calendar,
the objector must comply with the supplemental procedures contained in the Court
Manual available from the clerk and on the court’s website.
(b) Notice and Hearing.
(1) A claim objection must be set for hearing on notice of not less than 30 days.
(2) The claim objection must be served on the claimant at the address disclosed by the claimant in its proof of claim and at such other addresses and upon such parties as
may be required by FRBP 7004 and other applicable rules.
(3) Notice of the objection on or conforming to court-mandated form F 3007-1.3,
Notice of Objection to Claim must be served with the claim objection. The notice
must advise the claimant of the date, time, and place of hearing, and state:
(A) A response must be filed and served not later than 14 days prior to the date
of hearing set forth in the notice; and
(B) If a response is not timely filed and served, the court may grant the relief
requested in the objection without further notice or hearing.
(4) The court will conduct a hearing on a claim objection to which there is a timely
response.
(5) If the claimant timely files and serves a response, the court, in its discretion, may
treat the initial hearing as a status conference if it determines that the claim objection involves disputed fact issues or will require substantial time for presentation of evidence or argument.
(6) If the claimant does not timely file and serve a response, the court may sustain the
objection and grant the motion for order disallowing the claim without a hearing.
(A) The objector must file a declaration attesting that no response was served
upon the objector. The declaration must identify the docket number and filing date of the objection to claim, notice, and proof of service of the notice and objection to claim, and be served on the claimant.
(B) The objector must also lodge a proposed order prepared and served in accordance with LBR 9021-1 which provides for service of the entered order on the claimant and counsel, if any, and the United States trustee.
(c) Evidence Required.
(1) An objection to claim must be supported by admissible evidence sufficient to
overcome the evidentiary effect of a properly documented proof of claim executed
and filed in accordance with FRBP 3001. The evidence must demonstrate that the
proof of claim should be disallowed, reduced, subordinated, re-classified, or
otherwise modified.
(2) A copy of the complete proof of claim, including attachments or exhibits, must be
attached to the objection to claim, together with the objector’s declaration stating
that the copy of the claim attached is a true and complete copy of the proof of
claim on file with the court, or, if applicable, of the informal claim to which
objection is made.
(3) If the complete proof of claim is not readily available from the court file, the
objector may formally request a copy from the holder of the claim by serving the
creditor with a notice in substantially the same form as court-approved form.

H. Notice of Request for a Copy of Proof of Claim.
F 3007-1.2, Notice of Request for a Copy of Proof of Claim.
(A) The request must advise the holder of the claim that failure to supply a complete copy of the proof of claim, including all attached documentation, within 30 days of the notice may constitute grounds for objection to the claim based on the claimant’s failure to provide requested documentation to support the claim.
(B) If an objection is filed on this basis, it must be accompanied by a declaration providing evidence that the proof of claim was not readily available from the court file or otherwise.
(4) If the basis for the objection is that the proof of claim was filed after the bar date,
the objection must include a copy of each of the following:
(A) The bar date order, if any;
(B) The notice of bar date; and
(C) Proof of service of the notice of bar date.
(5) If the basis for the objection is that there are duplicate proofs of claim, the objection must include a complete copy of each proof of claim.

If you find yourself in an unfortunate situation of losing or about to your home to wrongful fraudulent foreclosure, and need a complete package that will help you challenge these fraudsters and save your home from foreclosure visit:http://www.fightforeclosure.net