foreclosure defense: Verbal Promises Not to Foreclose are Unenforceable.
- 03/22/13 03:58 PM
Verbal agreements not to foreclose are unenforceable. It seems that every day I receive a call from a prospective client who advises that they were promised that the foreclosure would be adjourned. Any competent attorney will then ask….”did you get that in writing”? The answer is always “no”. Oral or verbal agreements are often enforceable in many aspects of law and business. However, appeals courts have ruled that an oral agreement to postpone foreclosure is non- binding. The main reason for this applies to any contractual situation. The promise was made (to not foreclose) without any legal consideration. There was … (9 comments)
foreclosure defense: Loan Modifications are in the RISE!!!
- 12/28/12 01:56 PM
Many people evaluate the housing market by foreclosure statistics. I have previously blogged that this methodology is fraught with inconsistent variables that alter the findings (such as lenders purposely holding back foreclosure filings). Foreclosure activity remained elevated in the third quarter of 2012, but homeowners are fighting to stay in their homes. According to a report by the Office of the Comptroller of the Currency (OCC), servicers initiated 252,604 new foreclosure actions during the third quarter of 2012. Office of the Comptroller of the Currency Report Homeowners responded with 382,899 home retention attempts. Home retention actions include modifications and shorter-term payment plans. Of … (3 comments)
foreclosure defense: Update on the Consumer Financial Protection Bureau Part II
- 09/06/12 05:58 PM
Here is the second part of an update on the Consumer Financial Proetction Bureau as mandated under the Dodd-Frank Act. Earlier, I posted three sections that purtain to the act that may be of interest and here a an additional three. These were compiled for a series of legal articles.
4. Offering alternatives to points and fees:
“If the creditor pays loan originator compensation, the CFPB proposes that the creditor may not impose any discount points or origination points or fees unless the creditor makes available to the consumer a comparable, alternative loan that does not include discount points … (3 comments)
foreclosure defense: Update on the Consumer Financial Protection Bureau
- 09/06/12 05:46 PM
I decided to write an update to the Consumer Financial Protection Bureau as it seems that its purpose and goals have not been disseminated well. On one hand, it is a HUGE bureaucracy with many levels of complicated structure. On the other hand, it is intended to aid consumers.
I have complied a summary of many legal articles written about it and I will write them in a two part blog...
The Consumer Financial Protection Bureau continues to restructure the country’s mortgage finance system as mandated by the Dodd-Frank Act.
Most recently, the agency proposed new rules … (4 comments)
foreclosure defense: Call it What it Is…Quiet Title is Not as Advertised
- 06/25/12 04:37 PM
Call it What it Is…Quiet Title is Not as Advertised. Hardly a day goes by that someone mentions a “Quiet Title” action. From everything that is stated, it appears to be a dream come true for distressed home owners. First of all, what is being marketed as “Quiet Title” is not really an action to quiet title. The term quiet tile refers to legal court matters in which the actual title to a property is disputed among several different claimants. This can happen in a variety of settings, but it is most common in inheritance battles or battles between business … (14 comments)
foreclosure defense: Another Review of Non Judicial Foreclosure
- 05/27/12 07:13 PM
Another Review of Non Judicial Foreclosure. I have written previously that it is time to review the non-judicial foreclosure process in light of the many valid defenses to foreclosure that exist today. The deprivation of one’s home is the greatest personal financial loss that a person can have and how can we allow non-judicial foreclosure when there are so many home owners that have been harmed by their lender? Said another way, why should we allow banks to get away with the massive fraud that they are perpetrating on the public?
In judicial foreclosure, the distressed home owner has defenses … (1 comments)
foreclosure defense: New Jersey State Supreme Court Gives Go-Ahead for Foreclosure Actions
- 08/21/11 12:41 PM
New Jersey State Supreme Court Gives Go-Ahead for Foreclosure Actions. The New Jersey State Supreme Court determined in December of 2010 that four of the nation’s largest lenders had to cease filing foreclosure actions due to the uncertainty over the lenders’ foreclosure systems. Justice Stuart Rabner called a halt to foreclosures by some of the biggest banks in the country in the state of New Jersey. The Supreme Court determined that Bank of America, Wells Fargo, JPMorgan Chase and other major lenders cease and desist all foreclosures in the state until they had proven that they had dealt with potential … (2 comments)
foreclosure defense: Foreclosure Defense is the Practice of Law
- 08/14/11 01:05 AM
Foreclosure defense is the practice of law. You would not think that if your home is in default or foreclosure since there is a remarkable number of firms soliciting distressed home owners with offers of foreclosure defense and delay of foreclosure. Most of these firms have limited ability to help you, since they are not attorneys. Many are being charged with the unauthorized practice of law. My home state of New Jersey just took action against six such firms operating within the state. The firms will try and lure you in with promises of foreclosure defense success or delay in the … (4 comments)
foreclosure defense: Unauthorized Practice of Law Issues Enter the Foreclosure Debate
- 07/26/11 07:50 PM
Last week, I blogged about the case of Matrix Financial, Corp. v. Frazer in which the South Carolina Supreme court ruled that lenders cannot foreclose if they were found to be engaging in the Unauthorized Practice of Law (UPL). In real estate, the SC Supreme Court indicated that lenders are required to have attorney review of title search, document preparation, and close of escrow.
Well, it doesn’t take long for the lenders to take action (or their political puppets). It turns out that a state representative has introduced a bill to end the Unauthorized Practice of Law mandate of the … (17 comments)
foreclosure defense: Another Victory for Home Owners Against Foreclosing Lenders!
- 07/23/11 09:31 AM
Chalk another victory up for home owners fighting back against lenders. The Maine Supreme Court overturned a Summary Judgment in favor of a servicing agent against the home owners. In the case of Kondaur Capital Corp. vs Hankins, the trial court had granted summary judgment in favor of the lender agent, but the Maine Supreme Court overturned the ruling.
This is an example though of several things. First, this does NOT mean that the Hankins will still prevail. The matter theoretically still must be heard in court. The Summary Judgment was overturned which means that everyone must start over. Procedurally, … (4 comments)
foreclosure defense: We Need to Review Court Cases and Regulations on a Case by Case Basis
- 07/22/11 08:03 PM
We have to keep legal decisions and governmental regulations in perspective when we analyze a ruling or new regulation. There have been a lot of decisions on the validity of MERS for example. Many courts hold that it is invalid, while others hold that it is valid. To a lay person, this appears to be inconsistent. However, we must realize that the cases are reviewed on a case by case basis. The facts of the respective cases frequently determine the outcome. We also have to remember that these are different courts and different standards of review. In New York for example, … (3 comments)
foreclosure defense: WOW..this Case Has HUGE Implications on Foreclosures in South Carolina
- 07/15/11 07:07 PM
I was doing some legal research in South Carolina for an investor property there. I was searching for some legal guidance on a particular issue when I stumbled upon and incredible case. The South Carolina Supreme Court had a remarkable decision in Matrix Financial Services Corp. vs Frazer, et al. In Matrix, The Supreme Court of South Carolina has enunciated a rule (albeit in dicta) that could prevent a mortgage lender from foreclosing on a mortgage if the lender closed the loan without a lawyer’s supervision of the title search, document preparation, and closing. I can tell you that it would … (4 comments)
foreclosure defense: California Appeals Court Rules in Favor of MERS
- 06/15/11 12:52 PM
Another court has weighed on the MERS debacle. The California Court of Appeals in the Second Appellate District declared that MERS (Mortgage Electronic Registration Systems, Inc) can be a beneficiary on a deed of trust and that Avelo Mortgage does need to possess the promissory note on the mortgage before beginning foreclosure proceedings. Some opine that the ruling sets a precedent in California that MERS can foreclose without having a promissory note in its possession. The decision was based on another California MERS decision in which the homeowner (Gomes) argued that MERS could not initiate foreclosure and the court determined that … (2 comments)
foreclosure defense: Why do So many Believe that a Lawsuit will Stop a Foreclosure
- 05/25/11 04:40 PM
Virtually every day, I receive a call from a real estate professional or home owner that inquires about filing "the lawsuit" to stop a foreclosure. It seems that many believe the separate lawsuit (or a lawsuit in the even of a non judicial foreclosure) will stop the foreclosure process. Where does this come from?? The theory is that a lender may have violated the Truth in Lending Act (TILA) Real Estate Settlement Procedures Act (RESPA) or various other federal and state laws and that this will remove a property from foreclosure. This would rarely be the case. If a home owner … (6 comments)
foreclosure defense: My Most Important blog Ever...My Best Kept Secret
- 04/06/11 09:16 PM
I have had success with loan modifications and short sales. Tremendous success with foreclosure defense either as an attorney or an expert witness. There is one central element to all of this success: a report of title.
More often than not, there is some defect in the chain of title in foreclosure. Perhaps the Note was assigned; perhaps the Deed of Trust or mortgage was assigned. Rarely are the assignments properly perfected. In a foreclosure defense, it probably means that the servicing agent or the plaintiff is not the "real party in interest". In other words, they do not … (2 comments)
foreclosure defense: More Foreclosure Mill Fallout
- 03/08/11 08:19 PM
The Law Offices of David Stern are closing this month after fallout from Robo signer and other problems in Florida. They were one of the big three foreclosure attorney practices in Florida. Fannie Mae and Feddie Mac stopped doing business with them last year. The Florida Attorney General is looking into their work product (as well as one of the other Big Three foreclosure mills in Florida).
I have had a lot of experience dealing with these firms (not Stern however) and I am disgusted as an attorney that such attorneys are allowed to practice law. Unreturned phone calls, no … (2 comments)
Author Bio: Paddy Deighan earned his Juris Doctorate and PhD Paddy consults with taxpayers in regard to tax liens, tax levies, tax levy, offer in compromise, tax debt, tax settlement
Verbal agreements not to foreclose are unenforceable. It seems that every day I receive a call from a prospective client who advises that they were promised that the foreclosure would be adjourned. Any competent attorney will then ask….”did you get that in writing”? The answer is always “no”. Oral or verbal agreements are often enforceable in many aspects of law and business. However, appeals courts have ruled that an oral agreement to postpone foreclosure is non- binding. 
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