There is more than one way to stop foreclosure. Please know that stopping foreclosure is not enough to prevent the lender from continuing to take your property. In order to prevent this, an aggressive approach is necessary which means that you have to take legal civil action and go after the lender in a court of law. Remember, it’s not only important to stop foreclosure, but it’s important to keep the lender away by winning your case. Stopping foreclosure is just the first step to helping you stay in your home. To keep the lender off your back permanently, you will need the help of experienced attorneys who specialize in real estate law.
Here are just a few ways to stop foreclosure that only a professional forensic audit is qualified to find. Once these are uncovered, you can win your case, reduce your mortgage and often seek damages.
ILLEGAL SECURITIZATION
Under US laws, securitization is illegal, primarily because it’s fraudulent and causes specific violations of RICO, usury, and antitrust laws.
RACKETEERING AND CORRUPT ORGANIZATIONS ACT (RICO)
A borrower may successfully plead a RICO claim in a yield spread premium case. The elements of a RICO claim are satisfied where the payment of the premium was not disclosed and the cost of the premium is passed on to the borrower in the form of a higher interest rate; and the broker represented that it would provide the lowest available rate.
APPRAISAL FRAUD
Many appraisers inflate the value of a property to help a lender justify a predatory loan. Sometimes the appraiser does this to please particular lenders to obtain repeat business from those lenders; other times, appraisers may be colluding with lenders and receiving kickbacks for fraudulent appraisals. Remedies for appraisal fraud can include actual damages, punitive damages, and attorney fees.
Quite often the Notary’s Commission is invalid, or they notarized documents without observing/witnessing the borrower sign documents. This invalidates all documents and can lead to beneficial concessions from the lender, and possible punitive damages.
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.
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.
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.
FAILURE TO STATE A CLAIM
This general defense attacks the lender’s ability to foreclose and can be used in conjunction with one of the other foreclosure defenses.
BREACH OF CONTRACT
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 forcing insurance, making the payments substantially more expensive than they should have been. In addition, lenders who quietly reward brokers for bringing borrowers to them—and subsequently passing on the cost of that reward to the borrower—may share liability for the broker’s breach of fiduciary duty.
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.
UN
FAIR AND DECEPTIVE PRACTICES
Over reaching mortgage transactions can often be challenged under state unfair and deceptive acts and practices (UDAP) law. Broker misconduct and yield spread premium, at least without disclosure, may violate a UDAP statute. There may be licensing violations. Transactions with lenders and/or brokers who are not licensed, but should be, may be void. It may be a UDAP violation for a lender to do business with an unlicensed broker. Most UDAP statutes provide for some combination of actual damages, statutory damages, multiple damages, attorney fees and costs, and some states, punitive damages.
EQUAL CREDIT OPPORTUNITY ACT (ECOA)
Bait-and-switch tactics can state a claim under the ECOA. ECOA provides private remedies for actual and punitive damages, equitable relief, and attorney fees.
TRUTH IN LENDING ACT (TILA)
As part of every loan transaction, the bank must provide the homeowner correct disclosures at or before the time of closing, like the amount of the finance charge and APR. If these disclosures are inaccurate, the loan may be statutorily rescindable under TILA. The lender must also provide a “Notice of the Right to Rescind.” This 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 date of closing. Rescission means the loan is canceled and all money paid to the lender is refunded. Moreover, if you purchased the property or used the proceeds to refinance and proper disclosures were not given, then you may also be entitled to money damages to offset the foreclosure.
REAL ESTATE SETTLEMENT PROCEDURES ACT (RESPA)
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.
HOME OWNERSHIP AND EQUITY PROTECTION ACT (HOEPA)
This is a very powerful federal law governing high cost refinance loans. Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.
THERE ARE MANY OTHER WAYS TO STOP FORECLOSURE. . .
There are many types of action that can be taken to stop foreclosure. Some of them are obvious, there are others that we want to keep a secret.
WE CAN DO THE FOLLOWING FOR YOU. . .
Contact the Closing Attorney - More often than not, foreclosure attorneys will show up at the court house steps with nothing but a clip board and spreadsheet of homes to foreclose on a list of properties at the court house steps. This process my vary state to state, but not having the proper foreclosure documents can cause the foreclosing attorney a great deal of trouble if he thinks he is going to get caught.
Filing a Civil Action in Court – This is an aggressive approach that is always necessary in reducing your mortgage. Pointing out to the court the errors on a person’s loan by the lender is a powerful tool that not only will stop foreclosure but can also stop the mortgage collection process and prevent negative remarks on an individual’s credit report due to the Fair Credit Act. Correctly writing a civil action that exposes errors by the lender and demonstrates how the lenders often take advantage of borrowers is imperative to winning your case. We incorporate the results from other trails and cases across the nation that are similar to yours so that the Judge trying your case can see how other judges nationwide have handles cases that may be similar to yours.
Remember, it’s not only important to stop foreclosure, but it’s important to keep the lender away by winning your case. Stopping foreclosure is just the first step to keep you in your home. To keep the lender off your back permanently, you will need the help of experienced attorneys who specialize in real estate law.