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 nothing given by the homeowner as consideration for the promise not to foreclose. Any promise without consideration is unenforceable. The consideration either has to be something of value or a forbearance to not do something that you are entitled to do. This is the legal justification for the policy that verbal promises to postpone foreclosure are unenforceable.
The practical reason that also underlies these cases is that many homeowners file actions in court and they allege that the lender or servicer advised them, that the sale would be postponed. Courts are flooded with Quiet Title, Wrongful Foreclosure and other actions in which the home owner alleges that the sale was going to be postponed. There have even been instances in which the lender admits that they promised not to foreclose and then they subsequently foreclosed and the home owner was without recourse. I know that this sounds harsh, but when you consider the practical and legal arguments, it is fair.
Frequently, the representative of the servicer will send a fax confirmation or email to you or your representative. All you have to do is ask!!! It may take them three to five days to do this, but they will provide written confirmation of an adjournment.
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