Massachusetts Foreclosure Defense
Massachusetts Foreclosure Defense Law Firm With Court Experience
Life can bring some unexpected hardships, many of which involve finances. Financial strain can be caused by unexpected life events such as a medical emergency, an accident, or loss of employment. If you are facing foreclosure on your home due to financial hardship - long term or short term - we can strive to help you find a resolution for your case.
It may seem as though the law is against you, but at Glenn F. Russell, Jr. & Associates, P.C., we are here to tell you that there are many options available to you! Just because you have been threatened with the possibility of foreclosure does not mean you will automatically be kicked out of your house immediately. Instead of worrying or stressing, you can trust that a Massachusetts foreclosure defense lawyer from our firm can exhaust all legally possible avenues and resources necessary to help you stay in your home. We offer a wide range of services, many of which could serve as an alternative to a foreclosure auction sale of your property, or a solution to your concerns.
Many Bankruptcy firms seem to imply that foreclosure defense necessarily only involves bankruptcy. This is not true. Even worse, as hard to believe as it is, some bankruptcy attorneys intentionally keep track of the Servicemembers' lawsuits that are filed in the Land Court,(as this is the final step prior to the publication of foreclosure auction) then in a manner very similar to an ambulance chasing personal injury lawyer, actually send letters directly soliciting these homeowners explaining that bankruptcy is the only "answer to their prayers" to prevent foreclosure. In fact, while bankruptcy may be beneficial in certain cases, many times bankruptcy will only provide a brief delay in the foreclosure process. At the same time the potential bankruptcy client is not fully informed that even though one files a bankruptcy, which creates what is known as an "automatic stay" preventing a creditor from moving forward, in a Chapter 7 case (and more infrequently in a Chapter 13 case), a creditor has the right to file (and many times will seek in a Chapter 7 case) a "Motion to Lift the Automatic Stay", which means that even though you have an actively filed bankruptcy, if the Court allows the Motion to Lift Stay, the foreclosing entity can then move forward with the foreclosure auction, even though you have an actively filed bankruptcy case.
Also be aware of firms that prey on homeowners promising that they will get the homeowner a "loan mod" Here is a recent example of an out of state entity offering to help Massachusetts homeowners running afoul of the law. In my experience, the "modification" process has generally been an exercise in futility. There may be some headway recently after the financial industry, and their mortgage servicer minions, as these entities have been the subject of federal government ire. However, this firm refuses to accept cases that solely request help in getting a loan modification, as there is nothing a lawyer can do that a homeowner could not do on their own, and as a result, it is at best unacceptable to charge a fee under these circumstances. Especially beware of out of state entities that state that they can "help you", you are best advised to run, not walk, away from these solicitations, as the only thing that they can "help" you with, is wasting your time and money. Many times these same "entities" are not attorneys, nor are they associated with Massachusetts attorneys. If you are confronted by these solicitations please refer these contacts to this office, and we will immediately forward them to the Massachusetts Attorney General's Office for review. Here is an example of a Massachusetts attorney offering "loan mods", where the Attorney General stepped in and shut that business down. That attorney is currently awaiting the result of the Massachusetts Board of Bar Overseers
When confronted with the possibility of foreclosure, bankruptcy may be a more advantageous place to be, depending on the individual circumstances of your particular case. This firm will utilize bankruptcy in the defense of mortgage foreclosure, only where the individual circumstances of the client's particular case would benefit from pursuing this route. This firm also routinely handles bankruptcy matters where foreclosure is not an issue. However, if bankruptcy is appropriate for your particular circumstances where faced with foreclosure, we also handle adversary proceedings, should you wish to challenge the foreclosing entity, within the bankruptcy.
Beware that most bankruptcy attorneys do not take on what is known as "adversary proceedings", which is basically a lawsuit within a filed bankruptcy, and is the only way to challenge a foreclosing entities right to foreclose in a bankruptcy. Therefore, if you are directly solicited by a bankruptcy attorney, you may want to ask what specific action they intend to perform for you, and ask what their specific policy would be if the foreclosing entity files a Motion to Lift the automatic stay. Or if you wish to challenge the foreclosing entity's legal right to take your home, ask whether that bankruptcy firm has the ability to handle an adversary proceeding.
There are many people looking to make money off homeowners' financial problems, therefore beware. Clearly to survive this firm must also charge for its services, however this firm cares deeply about the impact that foreclosure has had on society, and is extremely passionate about this legal issue. Obviously this firm would never directly solicit a potential client, (which may also violate attorney ethical rules). Because we are passionate about defending Massachusetts families from mortgage foreclosure, occasionally we will take a case on even though a client cannot afford to hire the firm, if we identify that a particular case may help to change the law. We can provide at least three clear examples where the firm received no fee for undertaking two very labor intensive appeals before the Massachusetts Supreme Judicial Court, one of which that made national news headlines; in U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass 637 (2011); and HSBC Bank, USA v. Jodi B. Matt, 464 Mass. 193 (2013), as well as the only successful remand on Appeal on a direct challenge under G.L. c. 244, Section 14 before the U.S. Court of Appeals for the First Circuit in; Juarez v. Select Portfolio Servicing, 708 F.3d 269 (1st Cir. 2013). Again, the firm received
no fee for any of these cases, as the objective was to create case law to benefit all of the Commonwealth's borrowers. Ask the bankruptcy attorney that directly solicits you how many times they have taken on cases without a fee to help shape the law related to foreclosure for homeowners.
Our Areas of Practice
Defenses to Foreclosure
You may want to challenge a threatened foreclosure for many different reasons. Do not think that you will lose your home automatically, but also keep in mind that this is an extremely difficult argument, with no guarantee of success. Remembering that you may have options and/or potential defenses available when faced with a possible foreclosure is critical to your effort to find the best solution possible for your situation. With the help of a qualified Massachusetts foreclosure defense attorney from our firm, you might be able to negotiate a settlement agreement with the financial entity that is seeking to take your home, file for bankruptcy, challenge the financial entity on the grounds that it was not your original lender, and therefore it must prove that it is a proper party to enforce contractual rights that you granted to another, and/or find other options may be available to you as well.
If you have already filed a lawsuit and lost that action, there exists the possibility of an appeal of that adverse ruling. However, there are strict time-lines that must be followed which generally means that you have less than 30 days from the date of the entry of judgment to file a notice of appeal with the Court that issued the adverse judgment. Additionally, when considering whether to appeal an adverse ruling you should very carefully review the Judge's ruling to determine whether there is/are a legitimate legal basis to challenge the Judge's ruling, as the failure to undertake this critical analysis may result in you losing your appeal and then also finding yourself subjected to having to pay the opposing party(s) legal fees, costs, and all other monies spent in the appeal process. And if you are an attorney filing an appeal without any legitimate legal basis, you could face sanctions, and/or any other penalties a Court deems reasonable under the circumstances. We have represented many clients in matters on appeal before the Massachusetts Appeals Court, the Massachusetts Supreme Juridical Court, and the U.S. Court of Appeals for the First Circuit. Having this extensive experience allows us to help you make the decision as to whether or not an adverse ruling has any legitimate legal basis to be appealed, and if there is a legitimate basis for appeal, and you decide to file an appeal, we can be counted on as one of only a very few law firms in the United States that has the extensive legal knowledge and experience in this area of the law, in order to zealously advocate your case before the Appellate Courts.
The foreclosure process in Massachusetts is "non-judicial", meaning that the entity seeking to foreclose does not have to go to court to file any lawsuit to remove you from your family abode or real property. This "non-judicial" process developed at a time where there was actually a "bank" who lent you money, and that bank still actually owned the mortgage, therefore if you were delinquent on the mortgage it really didn't make much sense to take up precious court time on this issue, as there was usually no question that the "bank" had the right to re-possess the home to satisfy the outstanding debt. Unfortunately, today, the majority of mortgage lending now involves the "securitization" process, where the original "lender" immediately sells the right to your monthly principal and interest payments to "investors" in the form of bonds or certificates. This firm successfully argued this issue on behalf of the LaRace family before the Massachusetts Supreme Judicial Court, in the national precedent setting case; U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (2011) So unless you have taken a loan out from a local bank or credit union, the entity seeking to take your home in foreclosure is not your original "lender". Further confusing the issue is the fact that these bonds or certificates are sold as fractional shares of ownership to the right to payment from the corpus assets of business, and/or New York common law trust, or Delaware Statutory Trust. These trusts are formed pursuant to what is known as a Pooling & Servicing Agreement ("PSA"),which represents the controlling terms of the trust's governing instrument. Generally these trusts identify a "mortgage servicer" as a "bill collector" who handles the billing and/or the foreclosure process. The problem with this dynamic is the fact that the "mortgage servicer" stands to gain upon the foreclosure of your property, as it is not "their loan" and any proceeds derived from the foreclosure sale are used to satisfy the mortgage servicer fees and costs first. Make no mistake, the "mortgage servicer" is not working with your best interest in mind, and it most certainly does not want you to keep your home.
Massachusetts Non Judicial Foreclosure Process
The "non-judicial foreclosure process" in Massachusetts usually begins with a "notice of default" that is sent to the homeowner, which explains your "options", and further explains that you have the right to bring the loan current (of course with the added fees and costs piled on by the mortgage servicer and its legal counsel). Massachusetts law gives the borrower a 150 day "right to cure" the arrears. However, this 150 day window can shrink to 90 days unless the borrower complies with specific legal requirements set out under Massachusetts regulation. Once this period of the right to cure expires, the financial entity will file an "Order of Notice" with the Land Court, which basically is a lawsuit filed by the foreclosing entity to seek a judicial determination only that you are not currently in active military service. The military question is the sole issue under review in these actions, and has nothing whatsoever to do with the actual foreclosure of your home itself. Attorney Russell argued one of these cases on behalf of a Massachusetts homeowner before the Massachusetts Supreme Judicial Court which clarified this issue, in HSBC Bank v. Jodi B. Matt,464 Mass 193 (2013), The firm brought the action on behalf of Ms. Matt who was not in active military service, because at the time the law was not clear on these proceedings. Although the firm successfully obtained a "remand" on this Land Court ruling, forcing the case back to the land court for re hearing, the Massachusetts Supreme Court clarified that from now on only active military service people can challenge these actions. However, the benefit of the ruling resulted in the change in the name of these actions from "complaint to foreclose" to "order of notice", which helped to clarify what these proceedings really involve.
Once the financial entity receives the judgment in the Servicemembers action, the foreclosing entity will send the mandatory notice of auction sale to the borrower, as required under G.L. c. 244, Section 14., which requires that any title holder, or entity having any interest in the title to the real property at issue as of 30 days prior to the auction, must be notified of the date and time of the foreclosure auction 14 days prior to the scheduled auction sale. In practice the borrower is usually sent "notice" from the financial entity's lawyer one month prior to the date of the auction. In the notice is contained a copy of the publication that will be published in the local paper (as required by statute). This publication is required by statute to be published for 3 consecutive weeks in your "local" paper. The term "consecutive" is strictly enforced, so if the foreclosing entity misses a week, it could not hold the auction unless it started publishing all over again, as there can be no variance from "consecutive". Once the auction is published for 3 consecutive weeks, unless you the borrower challenged this process, the auction is then held as described in the notice, where the active bidding takes place in front of your house and usually lasts less than 5 minutes, and the house is sold. It's that simple.
If you are thinking about challenging the foreclosure of your home, you would be well advised to be extremely proactive, and begin doing so as soon as you receive the "default notice" providing you 150 days to "cure". Many people wait until they receive the actual foreclosure auction notice, or shortly before the date of the auction sale itself, which generally does not provide sufficient time to draft, and create a strong legal defense.
Defenses To The Massachusetts Non-Judicial Process
The typical challenge to a threatened foreclosure involves the drafting of a "Motion for Preliminary Injunction, a Memorandum of Law to support that Motion, as well as drafting an underlying complaint, with exhibits. Yes, you the homeowner must file a lawsuit to attempt to prevent the auction of your property. This is an extremely difficult argument, one that requires an fierce advocate with extensive experience in this area of the law. Even though this is our exclusive area of practice, even we cannot guarantee any success in making this challenge. After the filing of all of the above described documents, you are given 10 minutes (or less) to carefully describe to the Judge exactly why the foreclosing entity does not have the legal right to foreclose. Then the Judge must review your complaint and come to the determination that you the homeowner have a better chance than not of being successful on the underlying lawsuit, in order that the Judge will issue an "injunction" to prevent the auction. These challenges are not well suited for attorneys who only "dabble" in foreclosure defense, or worse yet attorneys that state that they "practice" foreclosure defense and have absolutely no experience whatsoever with litigating these complex cases.
An alternative challenge for a Massachusetts borrower may also lie in filing an action called a "try title" action under G.L. c. 240, Sections 1-5, which is based upon the idea that the claimed mortgage holder is a stranger to your title. Massachusetts is what is known as a "title theory" jurisdiction, meaning that when you originally took out your mortgage, you actually granted the title to your deed to the original "lender", subject only to your right of redemption under G.L. c. 244, Section 18. In other words when you pay off the underlying debt your title is returned to you, in technical legal terms this is called a "fee subject to defeasance". . These are also extremely complicated and esoteric legal actions that require experience in arguing these actions. We have heard many stories from Massachusetts homeowners about these cases being brought in the wrong court, and including claims that are inapplicable in these proceedings.
Government and Lender Programs
If you can no longer afford your mortgage due to financial setbacks, there may be options available to you that can help keep you in your home. Government and lender programs are created to reduce monthly payments of mortgages, thereby lessening the financial burden. Ultimately, these programs can help you get back on your feet and help you return to making timely mortgage payments.
Mortgage Electronic Registration Systems
Mortgage Electronic Registration Systems (MERS) is a company that holds an electronic registry designed to track ownership of mortgages and loans in the United States. All real estate titles and transactions are subject to state regulations, so MERS provides a central database that tracks all mortgage loans in the nation. To determine if MERS is a contributing factor in your foreclosure, you need to speak with a foreclosure defense attorney immediately. You could have grounds for a dispute.
Mortgage Securitization Process
The mortgage securitization process refers to a complex procedure that involves liquidating assets, cash, property, or receivables as an offering of collateral for investors. Mortgage securitization is extremely common in the real estate and lending industries. Where any sort of mortgage, loan, or property is lent, the securitization process can be applied. Because the process is complex and confusing, we encourage you to consult our firm to reduce your risk of foreclosure or bankruptcy.
Contact Glenn F. Russell, Jr. & Associates, P.C. for aggressive defense!
In the event that you fear you may lose your home due to the inability to keep up with your mortgage payments, or if you have received notice of foreclosure on your home, Glenn F. Russell, Jr. & Associates, P.C. can help! Do not assume that you will be kicked out or evicted from your home. With an advocate at your side, you could avoid foreclosure by banks or lenders. Contact our firm to discuss your defense now!