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Monday, August 17, 2009

A Little Known Foreclosure Defense Against A FHA Mortgage

This article contains a very interesting foreclosure defense against FHA or HUD insured mortgages.  Nick Adama, the author of the article points to several court cases in proving his point.  AS he points out, "failure to follow the guidelines may be used by homeowners to defend their foreclosure in court".

In your battle for economic survival in this bankster created economic tsunami, one must do all they can to fend of those very banksters that got us here in the first place. 

Most of you are not in this situation by choice.  In fact, I would believe none of you are here by choice.  Your jobs taken away, your savings taken away, your dignity taken away and now they want to take your house.  Sure, you would love to continue to make your payments - we all would - but the games the banks(ters) played to enrich themselves at the expense of the entire nation requires that we fight back.  Fight back not only to save our homes but fight back to take back the total control the banks(ters) have on our country.

To fight back is not unpatriotic, it is in fact very patriotic.  The "too big to fail" giants of teh financial industry by evidence have committed crimes that the same blind eye that allowed them to is still allowing. 

More and more judges and courts around the country are becoming less tolerant of these banks who are attempting to prey on people by illegal foreclosure actions.  (see previous post).  It is time to level the playing field in our courts whose basic premise has always been "justice for all".  The banks say that they should be allowed to continue their illegal course of foreclosure because "it is how they always did business".  That is no reason to violate the law and it is no reason for the courts to accept unlawful lawsuits and rule in their favor.  The courts certainly don't for the average person. 

A Pro Se ()representing yourself) defendant is always at a disadvantage in a court of law when up against these foreclosure mill attorneys.  The court room is their playground and the judges, all attorneys as well, are their playmates.  The belong to the same fraternity but they all take an oath to uphold the law not to abuse it.

More and more people today are Pro Se as they cannot afford an attorney which is what the "mill" attorneys bet on.  The judges, human beings with their own feelings and beliefs sometimes can't always rule objectively.  But the more we all stand up for our rights the more they all will have to take notice. 

Relevant Court Cases to a HUD or FHA Mortgage Foreclosure By :  Nick Adama

When a mortgage is insured or guaranteed by the Federal Housing Administration (FHA), an agency overseen by the Department of Housing and Urban Development (HUD), servicing companies must follow HUD servicing guidelines. Some of these regulations involve the foreclosure process on a such a property, and failure to follow the guidelines may be used by homeowners to defend their foreclosure in court.

The following is a list and brief description of some of the court cases that have involved HUD and FHA loans that were improperly serviced, ones that were decided in favor of homeowners, and ones in which borrowers facing foreclosure were denied claims. Knowing some of the background of these cases may help homeowners decide if their loan is being properly serviced, or if it is worth their time to apply for an FHA loan.

One of the requirements to foreclose on a HUD loan is that the servicer must attempt to hold a face-to-face meeting with the homeowners before three payments have been missed. In Banker's Life v. Denton, homeowners raised the failure to hold the meeting as a defense against foreclosure. Also, the servicer did not send the request for the meeting via certified mail or attempt to visit the borrowers at the property. The court found for the owners in this case.

Notices of default must also be sent to delinquent borrowers in accordance with the HUD regulations. In Federal National Mortgage Ass'n v. Moore, homeowners raised the argument that the lender had not sent out a notice of default that was in compliance with HUD's regulations. The notice sent, according to the borrowers, was not valid because it was on a form that was not "approved by the Secretary" of HUD and was not sent in a timely manner as the regulations require.

Since these two cases had been decided, HUD's regulations have changed, but the language of the preforeclosure servicing, including notice requirements and review guidelines, have remained the same. In fact, another court case, Mellon Mortgage Co. v. Larios, decided that the requirements are the same now as they were before the statue was revised. Lenders failing to comply with these guidelines can still be used as a defense against foreclosure.

The face-to-face meeting with homeowners is also an important aspect of foreclosing on a mortgage backed by HUD. The minimum requirement to comply with this regulation is visiting the borrowers at home and sending at least one letter via certified mail. The issue came up in Washington Mutual Bank v. Mahaffey, and the lender was denied summary judgment because it had not sent the letter, even though someone had been sent to the property to visit the homeowners.

Of course, this is not to imply that every homeowner will win a case and successfully defend against foreclosure. Courts have also ruled against borrowers who raised issues regarding servicing. In Miller v. G.E. Capital Mortgage Servs., Inc., the court ruled that private citizens have no right to sue for violations of HUD's loss mitigation provisions. The law, according to the court, is meant to focus on regulation of lenders -- not creating rights for borrowers facing foreclosure.

Also, courts have found that the language included in deeds of trust insured by the FHA are not negotiated contractual terms. Instead, they are imposed by the FHA on both the borrowers and lenders, and the borrowers may not raise defenses in relation to breach of contract if lenders fail to follow the FHA guidelines. This case was decided in Wells Fargo Home Mortgage, Inc. v. Neal. If the homeowners and mortgage company can not bargain for that aspect of the contract, there can be no breach of the contract.

Homeowners, their loss mitigation professionals, and their foreclosure attorneys should become aware of some of the issues involved with HUD loans if they have a mortgage insured by the FHA or are considering taking advantage of the new government programs. While some protections may be offered to borrowers, others seem to be taken away by the courts if there is a question about a foreclosure. Knowing the issues through previously-decided court cases can help educate borrowers.
Author Resource:- Nick writes for the ForeclosureFish website, which gives homeowners the advice and resources they need to avoid foreclosure on their own and fight back against the bank's lawsuit. The site describes numerous methods to save a house, including foreclosure refinancing, deed in lieu, repayment plans, stopping a trustee auction, bankruptcy, and more. Visit the site on the web to read more about how you can avoid foreclosure and eviction, repair your credit, and establish a long term financial plan once a crisis is over:
Article From Articlebliss

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