Foreclosure Trends

R. Sebastian Gibson asked:


Today, it is estimated that one in ten homeowners is either in foreclosure or behind in their payments. As the economic crisis becomes more severe and the recession feeds upon itself, people have become more and more desperate to find some way to hold onto their houses. With such conditions, the average member of the public is ripe for a scam and the and those who try to dupe you or use trickery know this. It is no surprise, therefore that the number of foreclosure type scams are on the rise.

 

If you’ve been the victim anywhere in Southern California of real estate fraud or the target of an unscrupulous loan modification service, foreclosure consultant or someone acting on your behalf to modify your mortgage or cure your problems who is in violation of the strict regulations in California, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .

 

If you are a licensed real estate broker or agent and have either been wrongly accused of being in violation of the laws and regulations governing loan modification services and foreclosure consultants, or acted as such without being aware of these strict regulations and need legal defense, we urge you to call us at any of the numbers which you can find on our website.

 

Those who are most likely to be targeted by persons attempting to perpetrate a fraud are the elderly, anyone entering foreclosure, people who have recently lost their jobs, families who have lost a loved one, people who have limited knowledge of English, people with limited resources, and homeowners whose payment amounts have recently been raised.

 

The moment you enter foreclosure, expect to be inundated with offers of help from many individuals with generic type sounding names, and some claiming even to have references from churches near you. These are, in most cases, some of the people you should stay away from at all cost.

 

The person who will approach you in this type of scam is more often than not, well-dressed, well groomed, and seems personable, kind, and trustworthy. Some utilize social skills to put you at ease such as their representation to be of the same religion as you, or even the same church, to have been in the military if they think that will put you at ease or feel more trusting of them, and others will claim to be working for non-profit organizations, or branches of the government.

 

These are some of the most common scams and what you can do to avoid being a victim.

 

1) The Disappearing Foreclosure Consultant - With a helpful sounding name, and armed with references and a kind voice, the person who contacts you promises to help you stave off foreclosure with just an up-front fee for their time. The only problem is, as soon as the money clears their bank, you never see or hear from them again. The soon-to-be phantom performs little or no service, takes your money and you are left with your original problems and less time to try to save your home from foreclosure.

 

2) Loan Modification Helpers - Unlike Santa’s Helpers, in this scam you pay a fee up front to the “loan modification expert” to negotiate directly with your bank, only here you don’t get a present from Santa. If the expert really gains your trust, you also make your mortgage payments directly to the expert rather than to the mortgage company. Both the up front fee and the mortgage payments go directly into the pocket of the loan modification helper with the white beard and the kind voice and by the time you receive notice that your house is in foreclosure, this elf has disappeared and is back at the North Pole.

 

3) Just Sign Here Scams - As you face the prospect of foreclosure, one offer of help seems far better than all the others because it allows you to stay in your home as they save it from foreclosure. Unfortunately, in the papers you sign without having a lawyer look at them, you agree, knowingly or unknowingly, to sign over the house to the person offering this help and still remain responsible for the mortgage payments. The person then either sells your house, collects other fees from you or holds onto the house and evicts you.

 

4) Sale and Leaseback Scams - In this scam, if you are a homeowner who still has some equity in your home, you will be convinced to sign over title in your home and pay rent to the scam artist with the promise that they can bail you out, cure your problems and that you will be allowed to buy back the house later at a bargain price. All of this can be accomplished, but only if the property is in the consultant’s name. The payments you make go directly to the scam artist and eventually you will find yourself holding the bag. You may also find yourself evicted when you can no longer make the excessive rent payments. If you have lost your job and are having trouble making your house payments, even if you have equity in your home, you may be tempted by this scam. And while you would be entitled to the excess equity in your home if the house is sold in foreclosure, when you fall victim to this scam, you will lose the equity when it is either sold out from under you or the equity is stripped away by the new owner.

 

5) The Trust Me, I’m Religious or I Was In The Military Too Scam - These people posing as Christians, former members of the military or members of whatever social organizations you belong to come complete with references from members of your church or with military haircuts and promise that by adding them to the title to your home, they can rescue you from foreclosure, and have your credit repaired. Having gone through your mail or your trash, they probably know all about you. There’s no need to see a lawyer, they tell you. Just pray with them or have a drink with them and swap military stories. Just be sure to hold on to your wallet, don’t give them any money and don’t sign anything.

 

6) Sign Me Up Scotty And Get A New Loan Scam - In this scam, you are told that if you add the nice looking good Samaritan onto your title by signing a Grant Deed or other legal instrument, (which you are told, you don’t really need to read) this friendly person can apply for a new loan, which, unfortunately, if approved, will leave you on the hook for both the old loan payments and the new loan payments, and any up front fees you pay for this service will disappear with this fraud.

 

7) Buy My Books, Take This Seminar And Make Millions Scam - You may see this offer on late night television, on roadside signs or even on billboards. Only this time, you are talked into buying materials that are full of worthless information that will do nothing to help you avoid foreclosure. Even worse, the materials you receive may offer advice that will land you in jail by telling you how to approach others in foreclosure and advise you to tell them you can save them from foreclosure. The trouble is, what you will be doing is either practicing law without a license or acting as a credit repair agency or loan modification expert without a real estate license and without an advance fee agreement approved by the Commissioner of the California Department of Real Estate and without being registered with the California Department of Justice.

 

The Short Sale Scam - In this scam, the “short sale specialist” who contacts you promises his expertise to accomplish a short sale in a small amount of time that will protect your credit. There is a fee of course that would have been better spent on groceries. When the real estate market was better, there were additional wrinkles to this scam that today are more difficult to perpetrate due to the difficulty of selling homes in this economy.

 

9) It’s Like Magic - Here the homeowner is told to sign one thing, but the homeowner winds up signing something altogether. In some instances of this bait and switch scam, the scam artist will serve as the notary as well. In conjunction with this and other scams, or in other variations, forgery may be utilized, and identity theft employed as well.

 

10) Want Somewhere Cheap To Rent Scam - Here the bogus homeowner or leasing agent takes your rent payment and security deposit and rents or leases you vacant residential or commercial property, that isn’t owned by the person you are talking with and if you are talking with a leasing agent, this “agent” has no authority to offer you the property for rent or lease.

 

11) How About A Nice Loan Modification Scam - As with foreclosure consultants, loan modification services are strictly regulated by California statutes. If you have lost money or your home to a foreclosure consultant or someone promising to obtain a loan modification or cure to your problems and they have violated these statutes, in some cases you may be entitled to any moneys paid to them, but also, in some cases, your other actual damages, equitable relief, reasonable attorney’s fees and costs and punitive damages of three times the compensation received or misapplied by the foreclosure consultant or loan modification service who contracted with you.

 

It is difficult, if not impossible, to recover your money when you have been the victim of any of these types of fraud. However, there are times when the persons attempting to defraud you simply don’t know better and are otherwise responsible citizens and business people who don’t know the law, or conveniently fail to research the law, and who may either have errors and omissions insurance or assets which may cover their indiscretions.

 

Such defendants may include real estate brokers, foreclosure consultants, loan modification companies and services and mortgage brokers.

 

These parties may be responsible if they made misrepresentations to you, committed fraud, charged you fees and collected such fees in advance for foreclosure consultant services, failed to follow the strict regulations set forth in the California Civil Code and Business and Professions Code or had you pay fees in advance for loan modifications under agreements that have not been approved by the Commissioner of the California Department of Real Estate. The laws in California are very strict as to when you may be charged fees for such services and under what circumstances.

 

If a person makes promises or representations to you without any intent to perform the services promised, and if you have been damaged as a result of your reliance on those promises or representations, you may have a valid claim against that person for fraud. Such promises may include a promise that they will be able to obtain a modification of your loan or to save you from foreclosure, and will likely require you to pay up-front fees that do little, if any, good.

 

Here are the five tips of advice we recommend to anyone in this situation being approached by people offering help.

 

1. Avoid any solicitations of help that come unexpectedly, by mail, e-mail and by telephone or to your door.

 

2. Avoid using any help agency whose name you find on roadside signs such as those which state “We Buy Homes For Cash” and those which promise to “Stop Foreclosure.”

 

3. Avoid paying up-front fees to foreclosure or loan modification experts.

 

4. Disregard anyone who tells you not to talk to your bank or tells you to avoid consulting with a lawyer.

 

5. Don’t sign anything without having it reviewed by a real estate lawyer.

 

Red flags to you that you are about to be scammed should include requests of you for any of the following: to pay money up-front before any service has been performed, payment by cash, cashier’s checks or bank wires only, transfers of title, actions to be taken immediately, power of attorney, signatures on grant deeds, signatures without any explanation or while under time constraints, signatures on incomplete documents, and mortgage payments to persons other than the mortgage company.

 

Other red flags include unqualified promises, offers that sound too good to be true, failures to provide you with copies of what you sign, oral promises that are in conflict with written provisions, refusals to put the oral promises in writing, oral statements that the provisions in writing don’t mean what they say or won’t be enforced, and warnings not to discuss the matter with an attorney, your lender or anyone else.

 

If you have a business or real estate legal matter in Palm Springs or Palm Desert, in Ontario or Rancho Cucamonga, Temecula or Murrieta, Newport Beach or Huntington Beach, Anaheim or Santa Ana, El Cajon or Carlsbad, Palmdale or Victorville, Long Beach or Santa Monica, Ventura or Oxnard, or anywhere in Southern California, our Palm Springs, San Diego, Orange County, Inland Empire, Los Angeles, Santa Barbara and San Luis Obispo law firm has the knowledge and resources to be your Business Lawyers and Real Estate Attorneys. If you’ve been the victim of a real estate, business, loan modification or foreclosure scam or fraud, be sure to hire a law firm with experience in loan modification, foreclosure and real estate fraud in California and who will endeavor to ensure that your rights are properly represented.

 

To learn more about such scams or the statutes which regulate loan modification and foreclosure consultants, or for legal representation, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .



CORY

R. Sebastian Gibson asked:


Today, everywhere you look, there are commercials, billboards and roadside signs by entities offering to help you prevent a foreclosure of your home. Known as Foreclosure Consultants, some, if not many of these services and the persons whom they employ may be acting in violation of the strict regulations in California which regulate this growing industry. Others, may be outright frauds and scam artists.

 

The focus of these foreclosure consultants is anyone who is behind on their mortgage payments, which is now estimated to encompass one out of every ten homeowners. However, those who seek to defraud the public have their focus especially on the elderly, the newly unemployed, those whose properties are entering foreclosure and those whose payments have recently spiked upwards.

 

If you’ve been the victim anywhere in Southern California of real estate fraud or the target of an unscrupulous loan modification service, foreclosure consultant or someone acting on your behalf to modify your mortgage or cure your problems who is in violation of the strict regulations discussed in this article, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .

 

If you are a licensed real estate broker or agent and have either been wrongly accused of being in violation of the laws and regulations governing loan modification services and foreclosure consultants, or acted as such without being aware of these strict regulations and need legal defense, we urge you to call us at any of the numbers which you can find on our website.

 

To help you wade through the regulations in California on such services, here are some of the most important regulations. Keep in mind, that there is some overlap between foreclosure consultants and loan modification services. For that reason, the laws and regulations governing both services are included.

 

California Civil Code Section 2945 regulates foreclosure consultants. There is an additional requirement with respect to loan modification services, as discussed below. As with many code sections, the restrictions are complex and many. But here are the primary ways in which foreclosure consultants and loan modification services are regulated.

 

First, no foreclosure consultant and no real estate licensee is allowed to collect any advance fees for services as a foreclosure consultant once a Notice of Default has been recorded against your property. California lawyers are exempt from this prohibition.

 

Second, even if a Notice of Default has not been recorded against your property, in order for a real estate broker to assist you in obtaining a loan modification, or to otherwise negotiate a possible resolution to your problem, the broker must have you sign an agreement that specifically states what services will be performed, when they will be performed and how much you must pay.

 

Third, a broker may not have you sign any such loan modification agreement until it has been submitted to the Department of Real Estate for review and the broker has received permission from the DRE to use it and collect an advance fee.

 

Fourth, licensed real estate brokers who provide loan modification services without collecting fees in advance are not required to receive the DRE’s permission so long as their services are fully completed before they are paid by you.

 

Fifth, foreclosure consultant contract must allow the homeowner the right to cancel the contract until midnight of the third business day as defined in Section 1689.5 of the California Civil Code.

 

Sixth, foreclosure consultant contracts must provide an additional notice to the homeowner in 14-point boldface type stating when fees can be taken and notifying the homeowner that the consultant cannot ask you to sign any lien, deed of trust or deed.

 

Seventh, it is a violation for the foreclosure consultant to claim, demand, charge, collect, or receive any compensation until after the consultant has performed each and every service the consultant contracted or represented he or she would perform.

 

Eighth, it is a violation for the foreclosure consultant to charge any fee or interest which exceeds ten percent per annum of the amount of any loan which the foreclosure consultant may make to the owner.

 

Ninth, it is also a violation for the foreclosure consultant to take any wage assignment, consideration from any third party, acquire any interest in the residence in question, take any power of attorney, induce the owner to sign other contracts which are not in compliance, or enter into an agreement to assist the owner to obtain surplus funds prior to 65 days after the trustee’s sale has been conducted.

 

Tenth, an action may be brought against a foreclosure consultant for any of these violations and judgment shall include actual damages, reasonable attorney’s fees and costs, equitable relief and exemplary damage of at least three times the compensation received by the foreclosure consultant. The foreclosure consultant may also be punished by a fine of up to $25,000.00 or imprisonment for up to a year or both for each violation.

 

The reason for these regulations are many. Foreclosure consultants have, in many cases, been found to charge high fees, require the payment to be secured by a deed of trust on the residence, and then have either performed no service or worthless services. Some foreclosure consultants have then been known to purchase the homes at a fraction of their worth shortly before the homeowner loses their home.

 

Additionally, some foreclosure consultants have required payment of exorbitant fees for services such as to obtain the remaining funds from a foreclosure sale when the homeowner could have obtained those remaining funds from the trustee of a trustee’s sale directly for minimal cost if the homeowner had sufficient time to receive notices from the trustee regarding how and where to make a claim for excess proceeds under Civil Code Section 2924j.

 

Among the services foreclosure consultants are known to offer, legitimate or otherwise, are to stop or postpone foreclosure sales, obtain forbearances from beneficiaries and mortgage companies, assist in getting reinstated, obtain extensions of time, obtain waivers of acceleration clauses, assist in obtaining loans and advances, avoiding or ameliorating the impairment of the owner’s credit, saving the home from foreclosure, and assisting in obtaining the remaining proceeds from the foreclosure of the residence. If a foreclosure consultant promises any of these services, he or she is bound by Civil Code Section 2945 discussed above.

 

If you are dealing with a loan modification service, even one with a contract which has been submitted to the DRE and the broker has received permission to use it and collect an advance fee, if the real estate broker does not follow the strict procedures for handling the advance fee as contained in California Business & Professions Code Section 10146, the agent will be presumed to have violated Sections 506 and 506a of the Penal Code and the homeowner may recover treble damages for amounts misapplied and shall also be entitled to reasonable attorney fees in any action to recover those amounts.

 

Representatives of foreclosure consultants must be bonded real estate licensees. Foreclosure consultants must also be bonded and registered with the California Department of Justice (and submit advertising and promotional materials) and the homeowner must be provided with written proof that the consultant’s representative has a valid California real estate sales license, and is bonded in an amount equal to at least twice the fair market value of the property in question. If the foreclosure consultant performs any activities which include negotiating loans or performing services in connection with real property loans, the consultant must also be a real estate licensee.

 

While real estate agents are in some respects exempt from the foreclosure consultant regulations contained in Civil Code Section 2945, they are subject to it’s regulations under certain circumstances and it is in those circumstances that a real estate agent can be in violation of the Act. If they collect fees once a Notice of Default has been recorded, if they collect advance fees before acts have been performed, if they acquire an interest in a residence in foreclosure, if they assist the owner in obtaining the remaining proceeds from the foreclosure sale, or if they make a direct loan for a residence in foreclosure, they may be in violation of the foreclosure consultant laws.

 

A real estate broker cannot collect an advance fee under California Business and Professions Code Section 10026 unless the broker has submitted to the California Department of Real Estate an advance fee agreement for approval.

 

A loan modification contract, even one with a licensed real estate broker, for their assistance in working out a loan modification or negotiating another resolution of your problem must still state what services will be performed, when they will be performed and exactly how much you must pay. If the fees are to be collected in advance, the contract must be pre-approved by the Department of Real Estate.

 

At the Law Offices of Sebastian Gibson, we specialize in the field of real estate and stand ready to assist you if you have been the victim of any type of real estate scam. If you have lost money or your house to a foreclosure consultant or loan modification service as a result of their wrongdoing, we can assist you in pursuing the parties who victimized you and in some instances, we may be able to seek not only any moneys paid to them, but also, in some cases, your other actual damages, equitable relief, reasonable attorney’s fees and costs and punitive damages of three times the compensation received or misapplied by the foreclosure consultant or loan modification service who contracted with you.

 

If you have a business or real estate legal matter in Palm Springs or Palm Desert, in Ontario or Rancho Cucamonga, Temecula or Murrieta, Newport Beach or Huntington Beach, Anaheim or Santa Ana, El Cajon or Carlsbad, Palmdale or Victorville, Long Beach or Santa Monica, Ventura or Oxnard, or anywhere in Southern California, our Palm Springs, San Diego, Orange County, Inland Empire, Los Angeles, Santa Barbara and San Luis Obispo law firm has the knowledge and resources to be your Business Lawyers and Real Estate Attorneys. If you’ve been the victim of a real estate, business, loan modification or foreclosure scam or fraud, be sure to hire a law firm with experience in loan modification, foreclosure and real estate fraud in California and who will endeavor to ensure that your rights are properly represented.

 

To learn more about the statutes which regulate loan modification and foreclosure consultants, or for legal representation, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .



DEMETRIUS

LawFirms.com asked:


The Federal Deposit Insurance Corporation (FDIC) has compiled information from different sources on the rate of foreclosures in America and the outlook is not promising. According to the report, the Mortgage Bankers Association (MBA) reported that every three months 250,000 families enter into foreclosure in the U.S. That translates into one out of every 200 American homes. Mortgage default has reached epidemic proportions in our country and an ever-increasing number of families are facing homelessness or at least the loss of their homes and financial uncertainty.

HUD Suggestions to Avoid Foreclosure

U.S. Department of Housing and Urban Development (HUD) offers some tips to try to avoid foreclosure, they include:

Do not ignore the problem - The further behind a borrower gets in their mortgage payments, the harder it will be to reinstate the loan and the more likely the borrower will lose his/her home. Contact the lender as soon as possible - When a borrower realizes he/she will have a problem making the mortgage payments he/she should let the lender know immediately. Lenders can offer options to help borrowers through difficult financial times. They do not want to repossess a home. Open and respond to all correspondence from the lender - Lenders usually include information that may help a borrower keep his/her home in the first notices they send out. This information could help the borrower avoid foreclosure and it usually includes default prevention options. Know the rights afforded to a borrower - A borrower should review the loan documents so he/she may have a clear understanding of the lender’s options if he/she cannot make the mortgage payments. Learn the local foreclosure laws and action timeframes of the jurisdiction where the residence is located. Understand the foreclosure prevention options - A borrower can contact his/her lender to find out what loss mitigation or foreclosure prevention options are available to help them avoid foreclosure.

HUD suggests that a borrower prioritize his/her spending if they are having trouble keeping up with their mortgage payments. They recommend that the borrower’s first order of priority should be healthcare and after that, it should be to keep his/her home. They should review their finances to see where they can cut spending in order to make the mortgage payments. The individual should make a budget and sacrifice nonessential spending until he/she can catch up with the mortgage payments. HUD also recommends sacrificing assets in order to keep the home. The liquidation of assets such as a second car, jewelry, or a whole life insurance policy can help reinstate the loan.

Steps to Foreclosure

If a borrower defaults on his/her mortgage, the mortgage holder can typically initiate foreclosure according to the timeframe specified in the mortgage agreement. That period of time can vary but it will be specified in the mortgage agreement. There are two basic types of foreclosures recognized across the country but there are also regional foreclosures that are used in some jurisdictions. Most foreclosures are conducted in state or local courts but a few are conducted in Federal courts. A foreclosure is a legal action and all parties involved must be notified, even though requirements for notification vary from one jurisdiction to another.

Any profits from the sale of the property are used first to satisfy any outstanding taxes then to pay the outstanding mortgage and any legal costs of the lender. After that any funds that are left are use to compensate other liens against the property. The borrower is allowed the remaining proceeds if there is any money left after all debts are satisfied.

Types of Foreclosures

The different types of foreclosures include: Judicial Foreclosure - This type is available in all fifty states and it requires a court-supervised sale of the mortgaged property. A Judicial Foreclosure allows the borrower a one-year “right of redemption” where he/she can buy the property back from the bidder. This type of foreclosure allows the lender to file a deficiency judgment against the borrower for the balance of the money owed if the proceeds from the sale fail to cover the mortgage. Foreclosure by power of sale - This type is allowed in twenty-nine states if a power of sale clause is included in the mortgage agreement. Foreclosure by power of sale involves the sale of the mortgaged property by the mortgage holder without court supervision. Typically, this is a more expedient way of foreclosing on a property. This type of foreclosure does not allow the mortgage holder to seek a deficiency judgment against the borrower. Strict Foreclosure - This type is handed down through a decree and is only available in a few states. In this type foreclosure, the property is not sold but the borrower is ordered by the court to pay the amount owed within a specified period. If the conditions are not met, the lender has the right to take possession of the property. Once the lender has the title, the property can be sold to satisfy the loan. If the profits from the sale do not satisfy the amount owed, the lender can file a deficiency judgment against the former borrower. A Trustee’s Sale - This is an easy form of Foreclosure and a trustee under the stipulations of a Deed of Trust performs the sale. In this process, the borrower grants a trustee the power to sell the property through a trustee’s sale if the borrower defaults on the mortgage. Any proceeds from the sale are dispersed according to the priorities outlined in the deed of trust. This is a quick and economical way of foreclosing on a property but it does not allow for a deficiency judgment against the borrower. Reasons for Foreclosure

Hundreds of thousands of U.S. families are losing their homes to foreclosure every fiscal quarter making this a foreclosure and financial plague on our society that will be reeling for years to come. The FDIC published information from a study conducted by the Homeownership Preservation Foundation (HPF) on some of the reasons for the high rate of foreclosures in America. The study suggests that many U.S. households are at a financial tipping point and many families are on the verge of losing their homes.

The economic tipping points for American families in danger of losing their homes outlined by the HPF include:

Thirty-two percent are because of the loss of employment. Twenty-five percent are because of a healthcare emergency in the family. Eighty-five percent of households are behind one mortgage payment. Fifty percent of households are behind two payments. Most Americans households do not have any savings, do not have any credit available, and their extended families are in a similar situation. Most U.S. homeowners are first-time mortgagors, and most home mortgages are less than three-years old. Many American households have refinanced their homes two or three times.

The HPF estimates that forty-three percent of U.S. households live beyond their means and that almost half of all homeowners in this country spend more than they earn. The foundation calculates that approximately fifty-two percent of American employees live paycheck-to-paycheck and that roughly forty-two percent of Americans do not have enough liquid assets to support themselves for the recommended three months should they have a financial crisis.

Read this foreclosure article and other articles at LawFirms.com



JAIME

Foreclosure Fight asked:


The following are legal defenses to foreclosure to beat the bank:

 1.       Truth in Lending Act (TILA) violations enabling rescission.  If your loan is a refinance, the bank must have provided you a set of disclosures at the time of closing.  If these disclosures are inaccurate, the loan is statutorily rescindable under TILA.  For example, in a foreclosure action, the finance charge must have been accurate within $35 or the loan may be rescindable.  This means the loan is cancelled and all money paid to the lender is refunded.   

2.       Truth in Lending Act (TILA) violations enabling damages.  If you purchased the property  with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money damages to offset the foreclosure.

3.       Home Ownership and Equity Protection Act (HOEPA).  This is a very powerful federal law governing high cost refinance loans.  If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act.  Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.

4.       Failure to Provide a Correct Notice of the Right to Rescind.  There is a specific notice that must be provided to refinance customers at closing.  If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date. 

5.       Breach of Contract.  Many times the lender will do things that are unfair or unjustified before starting the foreclosure process.  Just as you have an obligation to pay the mortgage, the lender has a responsibility not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.

6.       Real Estate Settlement Procedures Act.  This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees.  It enables damages, and sometimes rescission if the error triggers TILA.

7.       Fair Debt Collection Practices Act.  This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt.  A failure to follow this law enables statutory damages and attorney’s fees.

8.       Fair Credit Reporting Act.  This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information.  Violations of this act also enables damages and attorney’s fees.  Punitive damages might be available under this act.

9.       Real party in interest.  This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose.  It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.

10.   Unconscionability.  This defense is focused on the events surrounding the creation and closing of the mortgage loan.  A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.

11.   Failure to state a claim upon which relief can be granted.  This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.

12.   Failure to establish conditions precedent.  Want to get a foreclosure action thrown out of court right away?  Use this defense that attacks the lender’s pre-foreclosure processes.

13.   Failure to comply with FHA pre-foreclosure requirements.  FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases).  If the lender does not take these steps, then it cannot foreclose.



SHAUN