Efforts by homeowners to stop foreclosure sales were given a boost this week as evidence of lender misconduct was publicized. During the past several days, attorneys general in all fifty states have announced investigations into misconduct of lenders and mortgage loan service companies. It has become clearer than ever before that many thousands of homeowners have valid legal defenses to lenders' foreclosure complaints, and that thousands of foreclosure cases nationwide are tainted by faulty procedures and documentation. By relying on "robo-signers" and invalid documents, some lawyers for the banks appear to have engaged in impermissible procedures, leading courts to deny banks' request for foreclosure judgments. Courts have also ruled against banks for deceptive "pick a payment" or adjustable rate schemes. In this environment, homeowners who file foreclosure defense forms with their local courts are increasingly able to save their homes and stop foreclosure. In today's environment, an answer to a foreclosure complaint or motion to stop a foreclosure sale is a powerful tool, and can lead to the cessation of foreclosure proceedings.
This article will summarize how the current mortgage foreclosure scandal developed, and the foreclosure defense opportunities available to homeowners who wish to stop foreclosure and save their home.
(a) Stage One of the Crisis (2008 - 2009): News of Financial and Legal Irregularities on the Part of Lenders and Loan Servicers is Sporadically Reported as the Number of Mortgage Foreclosure Cases Increases
Throughout 2008 and 2009, news was percolating that mortgage lenders, and the companies whom they rely upon, appeared to have engaged in questionable practices. Generally, articles of such misconduct were buried deep within the back pages of mainstream media, and the reports were short on details and gave little in the way of practical guidance to struggling borrowers. The articles made mention of several different types of misconduct, including:
The failure of lenders and loan service companies to lawfully document the assignment and/or transfer of loans;
The use of false affidavits and/or affidavits that were executed through "robo-signing", in attempts to circumvent the procedural and substantive rules required to lawfully effectuate a foreclosure;
The submission of documents that were never notarized and/or acknowledged, in violation of basic foreclosure rules which require notarization;
The failure to provide legally-mandated notice to homeowners before and during foreclosure proceedings.
Although the widespread extent of such practices was not yet apparent, it became increasingly clear that lenders had little regard for the welfare of the general public. For example lenders instituted foreclosures against homeowners whose livelihoods had been destroyed by the tragedies occurring on the Gulf Coast. From September 2009 to September 2010, foreclosure activity in Louisiana jumped by approximately 30%. In Florida, California, and Nevada, entire communities were decimated by the foreclosure crisis.
(b) Stage Two of the Crisis (November, 2009 - September 2009):
News of possible foreclosure irregularities spread like across the nation like a foul wind. Last week, attorneys general in all fifty states announced investigation into unlawful foreclosure practices. Furthermore, beginning in late 2009, and continuing to the present, increasing numbers of trial judges have dismissed some foreclosure actions due to irregularities in legal and financial documents and some lenders' failure to follow basic foreclosure procedures. Recently, even the law firms representing the banks have come under scrutiny, with some of the largest foreclosure mills subject to judicial inquiry.
On July 7, 2010, New York's Supreme Court denied a major bank's request for an order of reference (an essential aspect of any NY foreclosure proceeding) based on a bank's failure to prove that it actually possessed the note and mortgage at the time that the foreclosure action was filed. The court noted that the alleged endorsement presented to the court by the bank was on a separate page from the promissory note, and made no specific reference to the note. Similar decisions were issued by courts in Florida and Ohio.
On October 9, 2009, the Attorney General of New Jersey announced that a major financial institution agreed to pay $3.98 million dollars in connection with allegations misleading and deceptive practices in marketing adjustable rate a/k/a/ "Pick-a-Pay" mortgages.
(c) Stage 3 of the Crisis: Protect Yourself and Save Your Home.
In increasing numbers, homeowners and courts have taken lenders to task for financial improprieties This profound realization has served as an epiphany for tens of thousands of homeowners, inspiring and empowering them to fight against foreclosure. In record numbers, homeowners in judicial foreclosure states (such as New York, New Jersey, Florida, among others) now file answers to foreclosure complaints and question lenders about foreclosure practices and procedures. Judges are now more aware of the extent to which homeowners have been victimized, and courts have not hesitated to deny foreclosure judgments to banks. Some lenders admitted that lenders lack the documents required for foreclosure. In other instances, homeowners successfully argued that loans resulted from deception, particularly adjustable rate loans.
In non-judicial states (for example, California, Nevada, and others), homeowners began to file complaints and motions for temporary restraining orders, stopping foreclosure sales.
Homeowners have also discovered that in this new environment, they do not necessarily need to hire expensive lawyers to protect their rights. Forms for answering foreclosure summons and complaints, and for obtaining temporary restraining orders to stop foreclosure sales, are available online, and such foreclosure defense forms may be filed directly with the court.
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