In the State of Washington,(a nonjudicial forclosure, nonrecourse state) one, of course, is not defending a court foreclosure so the borrower must take the initiative to file a lawsuit to enjoin the sale to stop the trustee sale, and prevent a BFP situation (although most banks, like Bank of America end up the high bidder for under water houses). This is an expensive suit to file & prosecute for a broke homeowner, plus the DOT law requires that the monthly payments to the bank have to continue and be timely or the injunction can be dissolved. I have not reviewed your website in detail, but so far I see little that would aid a broke or close to broke homeowner in this state other than a very expensive lawsuit with Bank of America that has access to the best lawyers that money can buy. My apologies if this is already on your website in any detail. Thank you for any help you can give.
J R: Yes check Lawyers who get it on the livinglies blog
Is there any representation in Virginia?
Any attorneys doing foreclosure defence wpork in Michigan?
I am in Michigan visiting family. Michigan is a non judicial foreclosure state. What can these people do regarding questioning mortgagees ownership of the loan to stop the sale?
Miami Florida Personal Bankruptcy Law Blog
Chapter 7, 13, and 11 Florida Bankruptcy Law by Miami Florida Bankruptcy Lawyer Jordan E. Bublick
Sunday, December 21, 2008
“Securitization Facilitated Predatory Lending”
Professor Kenneth C. Kettering of the New York Law School recently reviewed the legal foundations and product growth of asset “securitization” in his article Securitization and its Discontents: The Dynamics of Financial Product Development, 29 CARDOZO L. REV. 1553 (2008).
Interestingly enough, Professor Kettering lists various articles dating back as far as the year 2002 where critics contended that mortgage securitization faciliates “predatory” lending and misleading disclosures . One of the earliest proponents of this thesis was Kurt Eggert’s article Held Up in Due Course: Predatory Lending, Securitization, and the Holder in Due Course Doctrine, 35 CREIGHTON L. REV. 503 (2002). Other articles cited are Kathleen C. Engel & Patricia A. McCoy, Turning a Blind Eye: Wall Street Finance of Predatory Lending, 75 FORDHAM L. REV. 2039 (2007), Christopher L. Peterson, Predatory Structured Finance, 28 CARDOZO L. REV. 2185 (2007), David Reiss, Subprime Standardization: How Rating Agencies Allow Predatory Lending to Flourish in the Secondary Mortgage Market, 33 FLA. ST. U. L. REV. 985 (2006).
Posted by Jordan E. Bublick, Bankruptcy Attorney at 5:35 PM
Thanks for Massachusetts on point Fremont decision!
Monday, December 15, 2008
Massachusetts Appellate Court Affirms Preliminary Injunction against Foreclosure of Subprime Mortgages
In a landmark decision, the Supreme Judicial Court of Massachusetts issued it opinion on December 9, 2008 unanimously upholding the lower court’s order in the case of Commonwealth v. Fremont Investment & Loan & another, 452 Mass. 733 (2008)(Botsford, J.) preliminarily enjoining subprime mortgage lender Fremont Investment & Loan from foreclosing on any “structurally unfair” loan without further prior court approval and a final hearing on the merits. The lower court’s ruling of February 25, 2008 was reportedly the first of its kind in the nation that restricts a subprime lender’s ability to foreclose based on unfair or deceptive loan origination misconduct.
The trial court issued the preliminary injunction upon a finding of a likelihood of success on the merits that Fremont’s loans were “unfair” based on four characteristics of the loans. Massachuetts General Laws c. 93A, section 2 (a) makes unlawful any “unfair or deceptive acts or practices in the conduct of any trade or commerce.” It is noted that in a similar manner, Florida’s Deceptive and Unfair Trade Practice Action provides in section 501.204(1), Florida Statutes (2008) that (1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. The four characteristics found by the court as establishing unfairness were
* 1. the loans were ARM loans with an introductory rate period of three years or less
* 2. they feature an introductory rate for the initial period that was at least three per cent below the fully indexed rate
* 3. they were made to borrowers for whom the debt-to-income ratio would have exceeded fifty percent measured on the fully indexed rate, and
* 4. the loan-to-value ratios was 100% or the loan featured a substantial prepayment penalty.
The court reasoned that “Fremont as a lender should have recognized that loans with the first three characteristics …were ‘doomed to foreclosure’ unless the borrower could refinance the loan at or near the end of the introductory rate period, and obtain in the process a new and lower introductory rate.” The court also found that the fourth characteristic, the prepayment penalty, “would make it essentially impossible for subprime borrowers to refinance unless housing prices increased…” The court’s preliminary injunction required Fremont to work with the Attorney General to “resolve” their differences regarding foreclosure, presumably through a loan workout.
Most of the involved Fremont loans, which were procured through independent mortgage brokers who received a commissions, were subsequently sold to the secondary market with Fremont acting as servicer for the purchaser. The majority of Fremont’s subprime loan products were adjustable rate mortgages with fixed interest for the first two or three years which then adjusted every six months to a higher variable rate. The court found that Fremont determined loan qualification based on a debt-to-income ratio of fifty per cent or less based on the payment at the introductory rate not the payment that would ultimately be required after the introductory period. Furthermore, Fremont offered loans with no down payment by providing a first mortgage at eighty percent financing with an additional “piggy-back loan” providing twenty percent.
The court’s order does not bar foreclosure nor relieve borrowers of their obligations to repay their loans, but it requires Fremont to “explore alternatives to foreclosure” and then seek approval of the court to foreclose which may not be granted, leaving the preliminary injunction in place until the Attorney General has the opportunity to have a final hearing on the issue of unfairness.
Posted by Jordan E. Bublick, Bankruptcy Attorney at 7:11 PM