Tag Archives: homeowner

SCOTUS Sides with Homeowners with TILA Interpretation

SCOTUS Clarifies TILAIn case you missed it, here’s a link to the United States Supreme Court’s decision in Jesinowski et ux. v. Countrywide Home Loans, Inc., et al. I have also embedded the decision below.

This is a nice win for homeowners, because it is the final word on rescission. SCOTUS sided with the homeowners on this one, holding that borrowers exercising their right to rescind mortgages under the Truth in Lending Act (“TILA”) only need to provide written notice to creditors within three years of the loan being issued. They are NOT required to bring a lawsuit within that period.

Also, note that SCOTUS only addressed the when of the notice and not the how, because TILA doesn’t say anything about how notice is to be given.

You probably remember that TILA gives borrowers the right to rescind certain loans up to three years after the loans were issued when the borrowers do not receive the required disclosures. TILA provides that a borrower “shall have the right to rescind … by notifying the creditor … of his intention to do so.”

Homeowners rights were expanded under TILA in 1980, and since then, the courts have interpreted the Act differently. That meant that in some federal courts, homeowners were only required to give notice within the three years, and in others they were required to file a lawsuit.

And we all know how those lawsuits fared — most of them were losers for homeowners. How many homeowners raised TILA issues in lawsuits only to be shut down by courts?

Based on my work in foreclosure defense, it seems like much of the changes have happened too late, but perhaps we’ve all paved the way to preventing this from happening to others. And it seemed like 2014 was the turning point for more developed case law.

I’ve seen most of my clients get great outcomes in their cases. Ultimately, I am most happy about the case decisions we’ve seen, like this one and of course, Steinberger. If you fought in the courts and lost (as I did), take heart: each one of those losses has ultimately led to more protections for homeowners.

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Foreclosures: Where We Are Now, and Who is Still Hanging On

I hope you had a great summer!  I just posted about the Arizona Supreme Court’s denial of the bank’s Petition for Review, and it seemed like a good time for an update. I have personally been busy doing a lot of other things besides foreclosure defense related stuff.

I’ve said this before, but I’m not convinced there is much more that I can contribute to the discussion. I was talking to Barbara Forde about this the other day, and she says there’s more work to be done in Arizona. I am not sure how that looks for me, so for now, know that I will be posting sporadically and probably only when I have something meaningful to say.

With the announcement of the denial of review on Steinberger, it seemed like a good time to reevaluate where things are heading in the foreclosure discussion. Things have definitely settled down and shifted more favorably toward homeowners. I can remember a time when things shifted so rapidly in foreclosure defense that it was sometimes hard to keep up! It’s an interesting contrast.

So where are we now? I think most of us are recovering from the recession. It’s taking a lot of work, longer than we’d all like, and it’s demanding of our time and resources. I am working on several projects that are very rewarding and yet demanding, too. It seems like there is always a lot of work to do and not always enough time to get it all done.

There are a couple of positive indicators of an improving economy. I just saw that the unemployment rate has dropped below 6%, which is very good news. The Fed began tapering this year, and there were some stipulations earlier this year to continue its intervention in the economy as long as unemployment remained above 6%. The car market in the US has also defied expectations of growth for 2014.

My personal foreclosure issues are nearing completion. As you might recall, I won my eviction appeal earlier this year. I attended the bond hearing in late April to get my bond back and the judgment has been vacated. I am presently working on getting the fees back from the bank for prosecuting the appeal, but I expect that to be over very soon. That is the very last issue I have that is related to my foreclosure. It will be good to leave that in the past and although it was difficult, I am pleased with the choices I’ve made.

As far as the case law in Arizona, we’re definitely not in the same place as we were at the beginning of this year. Homeowners who have a good fact pattern and hire a lawyer now have the best shot at getting a fair outcome.

Overall, foreclosures in Arizona are way down. Contrast that with a period of time not that long ago when we all personally knew a handful of people in foreclosure. How many people do you personally know who are in an active foreclosure now? I don’t know of anyone.

Given that foreclosures are greatly reduced, I find it interesting that I continue to get inquiries from a specific type of homeowner. The main people I am still hearing from these days are homeowners who have managed to hang on to their home without making a house payment for years. Sometimes, they haven’t made a house payment in five or more years.

Until late last year, I had never been stiffed by a homeowner for an audit I did in advance. After that, I noticed that nearly all the people who were contacting me were “hangers-on” and all shared the same circumstances.

Some of them are VERY crafty. They are experts at manipulating the laws and procedures in their state to delay their foreclosure. Others are still in their house out of sheer luck. Despite not making house payments for years, most are still not in any better financial position than they were several years ago. Many have just now exhausted all their options.

These “hangers-on” raise so many questions. I imagine that the bank will not foreclose on some of the houses in the worst conditions and markets. My understanding is that the real estate market is improving so I think in most instances the bank was just waiting until it made sense to foreclose.

I hope you’re on the road to recovery and thriving post-recession! Be sure to check out my other blog, Coupons for Paleo!

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Arizona Supreme Court Denies Bank’s Petition for Review in Steinberger

Arizona Supreme Court Denies Bank's Petition for Review in SteinbergerI am pleased to announce that the Arizona Supreme Court has DENIED the bank’s Petition for Review in Steinberger. The denial is embedded below.

The Supreme Court frequently denies certiorari (the term used to deny hearing a case) to cases. If you’ve ever heard the media frenzy over the United State Supreme Court cases, you know they typically only agree to hear a handful each year.

In the instance of the Steinberger decision, this means that the lower court’s decision stands, which means it’s now law in Arizona. The courts are supposed to follow the decision as precedent.

If you haven’t read the Steinberger decision or Barbara Forde’s guest posts about how it changed the laws, you can read Steinberger here and Barbara’s guest post on Steinberger here.

For those of you with shorter attention spans, it’s a great decision for homeowners. It’s particularly personal for me because I worked with Ms. Steinberger on the details of her loan, and she went on to work with Barbara Forde.

There were a couple of times in this case that were awful. I’m not going to dredge all that up, but I feel vindicated after the bumpy ride, even if I have been behind the scenes. I am sure I am crowing as if I did all the work (I definitely did not do all the work!!), but the Steinberger decision means a lot to me personally. I feel especially good about the outcome because it will benefit all Arizona homeowners in future cases.

I have asked Barbara Forde to write another guest post to explain the ramifications of the decision. She says the quiet title argument is dead in Arizona, but I’m going to let her explain that.

I am also going to ask Beth Findsen for an update and I’ll share whatever I can from her. I hear she is having success in applying Steinberger to her foreclosure defense cases.

Stay tuned!

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Two New Service Levels to Make Getting Help More Affordable

I am adding two service levels that will make getting help for homeowners more affordable.

One on One Phone Time for $75/hr:

For those of you who are learning to audit, or if you’re a homeowner researching your own loan, this is an inexpensive way to get all those questions answered. Whether you purchased a DIY guide or you figured it all out on your own, I can help you put those last couple of pieces together or help you with the whole puzzle.

When you contact me, I will ask you to prepare a list of questions and send them to me before we talk along with a payment request from Paypal. You don’t need a Paypal account to pay, and I never see your payment details. Also, sending your questions in advance maximizes our phone time together, and you also won’t have to spend a chunk of your time explaining things. We can get right to the questions.

Please note that this type of coaching is limited to factual questions related to the problems with loan documents and audits. I am sure I sound like a broken record, but I cannot give you legal advice.

I’m pleased to share that so many of you are very close to a complete understanding about what’s going on with your loan documents, but have a hard time believing in yourself and what you’ve found.

I’ve said all along that it’s important for you to have the best information so that you can make the best decision about what to do in your own situation, and sometimes you just need confirmation that you’re on the right track.

Audits with E-mail Summary for $500:

If you’ve ever thought you’d like to have an audit but didn’t want to pay for the full price service, I can totally understand. As a business owner in a very complicated line of business, it’s been hard for me to figure out how to help you and still get paid fairly for my services.  There’s a huge jump between paying for a full audit at $950 and buying a DIY product for under $100. I’ve thought about this for a long time but haven’t had a solution to the problem until now.

I recently tried an experiment with a couple of clients where I did the same research I do for a full service audit but only sent an e-mail summary. Some homeowners don’t want or need a full report; they just want the facts.

And honestly, the research is not what takes me the longest. Report writing, and making sure I adequately convey the information from my research, is what takes the longest.

Perhaps we are entering a phase in the foreclosure discussion where we don’t need fancy reports. It seems like lawyers would at least have heard about foreclosure document problems by now and wouldn’t need a report. But again, I am not sure.

I like the e-mailed summary, and so do my clients. It’s more collaborative, saves the client money and takes me less time. It’s a win for everyone.

Of course, if you later need the report, you can still purchase it, but there is time involved with re-familiarizing myself with the facts of your loan. And the information is still high quality, but it just takes me less time to write an e-mailed summary and send it rather than doing all the other things I have to do with a formal report.

I have added these items to FIN’s About page, too.

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Focusing on What Works in Foreclosure Defense

Focusing on What Works in Foreclosure DefenseYesterday as I was on Facebook, I saw Mark Stopa’s post on the Pino case in Florida. His post essentially answers a question he and I both apparently get asked a lot, which is “Why aren’t you focusing on foreclosure fraud?”

Foreclosure defense has become just like any other legal practice area: what are the facts of the case, what evidence do you have, and what can you make out of it?

Mark Stopa says it very well:

“The other day, a friend on Facebook asked me why I don’t spend more time defending foreclosures by talking about foreclosure fraud.  Well, this blog shows why.  Regardless of what I think about it, those arguments don’t work. The judges just don’t like them. And whether I like it or not, Florida courts just aren’t going to create a system that prevents homeowners from getting foreclosed (certainly not on any widespread basis) based on foreclosure fraud.

Suppose you’re playing cards. Do you whine and complain if you get a crummy hand? Quit? Or do you play the best you can with the hand you’re dealt?

For me, that’s what foreclosure defense is – doing the best you can with the hand you’re dealt. I don’t like all of the rules/laws. I don’t always have a great hand. But I play the best I can with the hand I’m dealt.”

Aside from Mark’s point, there are already enough bloggers who spend a lot of time talking about what’s wrong with everything. I’m tired of talking about foreclosure fraud. It happened, but it’s time to find another way. I would rather focus on doing what gets results.

After losing a case, a good lawyer comes up with another way to win. I probably sound like Mark Stopa’s cheerleader here, but you can read all about his Paragraph 22 argument on his blog. He’s getting results with that argument.

Barbara Forde (in Arizona) made a contractual argument and was successful in stopping a foreclosure.

Neither of these examples are foreclosure fraud arguments.

I think the focus needs to shift to what actually works instead of fighting against what’s already lost. One person said to me on Facebook, “I will never give up fighting MERS.”

Well, if you’re in Florida, you’re wasting your energy and time on a battle that’s already been lost. Mark Stopa specifically says in the same post that Florida declined the opportunity to invalidate MERS:

“Florida’s Second District Court of Appeal declined to invalidate the MERS system, instead ruling a “holder” can foreclose even without being the “owner.”  Mortgage Electronic Registration Systems, Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007).  As a result, at least in Florida, the banking industry has been able to get away with transferring notes/mortgages without a “chain of title” being recorded in the Official Records, basically by anyone coming to court with an endorsed note.  For anyone challenging the mortgage industry’s sloppy practices, Azize was strike one.”

Shifting the focus to what works DOES NOT mean there is no hope. Despite the dismal case law, many homeowner attorneys are finding other ways to keep their clients in their homes.

The best defenses I’ve seen always started with researching/auditing the loan and scrutinizing the evidence. The best evidence isn’t even hidden! It’s all public record.

So, I’d ask you: what are the facts of your case and what evidence do you have?

Find out in Loan Audit School™ or Loan Audit School for Professionals™.

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