Required Insight
What you don’t know can hurt your case.
Types of Foreclosure Plaintiffs. One size does not fit all – especially in defending foreclosure actions. For example, of the 12 different types of foreclosure plaintiffs discussed in our training two are at completely separate ends of a contractual relationship with the homeowner. The first is a non-bank entity having the right to foreclose a lien that has been voluntarily given in exchange for something of value, such as repair to the home. Defending a foreclosure action by this type of plaintiff is markedly different than if the action were brought by a bank lender. The second type of foreclosure plaintiff is an assignee of a promissory note and mortgage, not a holder in due course, who has purchased what the industry calls a “scratch-and-dent loan”. These two types of plaintiffs are not only far apart in terms of what potentially gave rise to their right of action, but they are treated differently in the defensive context as well. Although not all are named here, other types of foreclosure plaintiffs include property owners’ associations, bank lenders, non-bank/non-institutional lenders, trustees of mortgage-backed securities and others.
Stages of Foreclosure Distress. As a foundation to CASECLARITY foreclosure defense we help attorneys expand their view of the foreclosure fact-finding and representational opportunities spectrum. How? By showing that a homeowner’s distress relating to mortgage foreclosure begins with the first time that consumer was first offered a loan. This range continues through servicing the loan, foreclosure proceedings and ultimately to everything taking place after the foreclosure – including displacement of the consumer from the property. The stages are:
- Loan
- Default
- Acceleration
- Foreclosure
- Disposition
- Judgment
- Appeal
- Sale
- Eviction
- Post-Eviction
Enemy One in Mortgage Foreclosure Actions. The enemy to slay in defending clients facing foreclosure is known as ASSUMPTIONS. No one can really argue that bias and prejudice does not exist when a homeowner is accused of not paying their mortgage. The collection of assumptions that tracks this allegation works such a prejudice against the homeowner that often, and before all the facts are in, everyone having any connection to the foreclosure will simply assume that the homeowner failed to pay; had no excuse for not paying; it is entirely the homeowner’s fault; the contract is air tight and not subject to attack; that the bank has not been paid and is innocent; that the homeowner has absolutely no defenses and will ultimately lose the home. Why would any attorney want to take on a case with such built-in negative bias and prejudice against their client? The truth is that attorneys who have looked past these assumptions have found serious overreaching by mortgage industry and others associated with the prosecution of foreclosures. The stories about abuses uncovered can fill several books. CASECLARITY teaches attorneys how to leverage new information about these abuses to attack the ASSUMPTIONS enemy and simultaneously advance both legal and equitable defenses in foreclosure actions.
