Posted by kevin on December 31, 2010 under Foreclosure Blog | 
On December 17 in Bergen County, I was able to get a case dismissed without prejudice because the plaintiff in that case failed to comply with the Fair Foreclosure Act.
Under the Fair Foreclosure Act, a residential mortgage lender must serve a Notice of Intent to Foreclose by registered or certified mail, return receipt requested at least 30 days prior to the filing of a foreclosure complaint.
The statute requires 11 different items of information to be supplied in the Notice of Intent to Foreclose.
The statute is silent on what happens to the plaintiff in the foreclosure action if there is a failure to comply. However, there have been a few court cases which give guidance.
First, the cases hold that partial compliance is not compliance. Either the plaintiff provides all 11 items of information or it is non-compliance with the law. Second, at least one appellate level court in NJ has ruled that a failure to comply must result in a dismissal of the case without prejudice. Without prejudice means that the case can be refiled, but only after a new and correct Notice of Intent to Foreclose is served on the borrower. This can give the borrower an additional year in their home and make the chances for favorable settlement that much higher.
Posted by kevin on December 26, 2010 under Foreclosure Blog |
to all. The past year has brought some difficult challenges to borrowers in or about to be in foreclosure. However, windows of opportunity are opening for borrowers’ attorneys. Moreover, I am beginning to see trial modifications with substantial principal reductions. However, those mods are being offered to borrowers who have demonstrated that they can beat the lenders in court.
As 2010 draws to a close, I am happy and thankful to say that all my clients are still in their homes, and I am working hard to keep it that way.
My advice for the coming year. Be proactive. Hire competent counsel when you are falling behind on your mortgage not when you get notice of a sheriff’s sale.
Merry Christmas and Happy New Year.
Posted by kevin on December 13, 2010 under Foreclosure Blog |
The problem with the current mortgage crisis is that payments on adjustable rate mortgages increased while at the same time the value of the property decreased. The homeowner found herself “underwater” with higher monthly payments.
When the borrower defaulted, and the lender filed foreclosure, the difference between the amount due and the value of the collateral increased. The question became, who was going to be responsible for the fact that the property was underwater. Were the lender and the borrower going to share the loss in value, or was the borrower going to have to eat this loss?
Read more of this article »
