Foreclosure Laws in Nevada

Nevada allows both judicial in court or non judicial out of court foreclosures. As with all states in which both methods may be followed, the determining factor as to which method will be used is the existence of power of sale. If the deed of trust or mortgage contains a power of sale clause, this allows the bank to pursue foreclosure without petitioning the court to do so. Most deeds of trust or mortgages do contain a power of sale clause. This benefits the bank. This also means that most foreclosures are done non judicially or out of court. This is because it saves the bank both time and money to proceed this way.

If a power of sale clause is not written into the deed of trust or the mortgage of the home in question, then judicial or in court foreclosure must be followed. This process begins with the bank filing a lawsuit against the home owner who is having difficulty paying his mortgage. The bank does this to obtain a court order to foreclose. Once this court order to foreclose is obtained, the process of moving toward the sale of the home is the same as in non judicial foreclosure. The homeowner does receive a twelve month right of redemption when the judicial method of foreclosure is used. In this type of foreclosure, for the twelve months following the sale of the home at auction the person that lost their home at the sale can regain ownership of the house.

When a power of sale clause contains specific instructions as to when, where, and how the sale of the home is to take place, then those specifications must be followed. Most of the time, power of sale clauses are not so detailed, and the usual method of moving toward the sale date is followed.

The first step of that process is that a copy of the notice of default and election to sell the property is sent to the homeowner. This letter must be sent by certified return requested mail, to the last known address of the homeowner. This letter is to be mailed the same day it is recorded with the county in which the property is located.

The time line from the notice of sale to the actual auction of the house is usually one hundred and twenty days in Nevada. The scheduled sale date cannot be sooner than three months after the date the notice of default and election to sell is recorded with the county and mailed to the homeowner. The notice of default itself, specifies the time, date, and place the sale is to be held.

The process of curing the default, should the homeowner desire to do so, must be taken care of during the first thirty five days following the issuance of the notice of default and election to sell. This is a way to stop foreclosure. If the homeowner wants to do this, they must file a notice of intent to cure, no later than fifteen days prior to the scheduled sale date. The money required to cure the fault and stop the foreclosure sale will be the amount needed to bring the loan current. This dollar amount must be paid before noon the day before the scheduled auction of the home. If the homeowner does not come up with that money by that time, the sale will proceed as scheduled. The notice of default and election to sell will contain all the information about the sale; where and when it will occur. Most often, the beginning bid or the amount required to participate as a bidder on the home will be the amount of the first mortgage plus the fees and costs and interest the bank has incurred.

Being that most homes going to auction these days have very little if any equity in them, this opening virtually always too high for investors to take any interest in the home. This means that at most sales the property is taken back by the bank. This causes a lot of problems for the lender.

If the home is sold at auction for less than is owed on the loan, the bank has the right to seek the difference between what the sale generated and what they were owed from the former home owner. The bank can exercise this option for three months following the sale. After this amount of time, they can no longer seek that money. This is called a deficiency judgment. Most people who lose their home to a foreclosure sale do not have any other assets worth pursuing by the bank. The banks realize that it is a waste of time to try and get blood from a stone in these cases. So, unless the bank has reason to believe that the former homeowner has other properties worth equity or other assets they could take they will most likely not seek a deficiency judgment. To do so would just be flushing money and time down the drain.

Banks Delaying Foreclosure Auctions to Prevent Losses

Homeowners who are behind in mortgage payments often make one mistake that, if not made, would allow them many more months to recover financially before losing their home. This mistake is when borrowers move out of their home before they are legally required to do so. And now, with the steep rise in the foreclosure rate over the past few years, there are even more reasons to stay put as long as possible.

Of course, a small number of homeowners realize the financial advantages of delaying the final move into a new apartment or rental house for as long as they can. Every month without a mortgage or rent payment is extra money that can be used to pay off other bills, keep on top of car payments, or simply save up for a security deposit or emergency fund. And as long as they still have legal rights to remain, there is no reason to move just yet.

Some homeowners even go to great lengths to get even more time from the bank to stay in their home. They do whatever they can to apply for solutions to foreclosure, request postponements of a sheriff sale, and defend the lawsuit in court for months. Finally, they file bankruptcy to drag the process out even longer. In many cases, this can result in months or years of living rent and mortgage free.

A far greater number of homeowners, though, fall behind on their monthly bills, listen to the lender’s threats of foreclosure, and simply move out of their house. The property sits abandoned while the banks takes it through the legal foreclosure process, and then it sits abandoned while the bank hires a local Realtor to sell the home. In the meantime, if falls into disrepair and becomes a victim of squatters or people stripping the property of anything of value.

However, now that banks have so many foreclosures on their books, many foreclosure auctions are simply being postponed for no apparent reason. While more homeowners than ever are applying for assistance, even more sheriff sales are being delayed. In addition, lenders are often incompetent enough to proceed with a public auction of a home even if the borrowers are negotiating for a loan modification or other plan.

This indicates that the banks are voluntarily postponing some sheriff auctions in order to avoid having to declare the loans as losses and then declaring the properties as assets at their true market values. Banks have gotten away for years with overestimating values of homes in order to inflate the values of the loans on the properties and the securities made up of these mortgage debts.

A sheriff sale, though, has the result of voiding out all of these fraudulent financial calculations. The property is auctioned off for a very small amount, and the rest of the loan is written off as a loss. Then, the bank must take possession of the house if there are no third-party buyers and declare the fair value of the home on its balance sheet. This can be quite a bit less than the appraisal stated it to be at the time the loan was originated.

Thus, banks are avoiding this problem of living in reality by postponing sale dates with ease. Even if no one is living in the property, there can be a delay in the sale — all the bank has to do is contact its local attorneys, who contact the court and sheriffs department to cancel the sale and reschedule it for the next month.

This is a new development in the foreclosure crisis that more homeowners should take advantage of. Banks do not want to own these properties, and they sure do not want to declare them at their true market values. With a little bit of effort, borrowers may be able to have the sale delayed for a quarter of a year or more, just because there is such a huge backlog of properties in some stage of foreclosure.

Foreclosure Rights – Defense by Recoupment in a Foreclosure Case

If you are a practicing attorney: Are you using Defense by Recoupment under 15 U.S.C. 1640(e) as a strong affirmative defense for your clients?

If you are a consumer: Have you had your loan (from day of application to current) audited by a forensic consumer debt analyst?

I get a fair amount of “conspiracy theory ” calls or emails people who would swear that the CIA was covertly involved in the loan they signed for and that all measures of fraud occurred against them by everyone involved and… you get the point. My first question to this person is always: “Great, so are you prepared for the $15,000+ retainer a good attorney is going to want to spend their time investigating, quantifying, pleading and trying a case like that? Well, you know the answer…

Others have read (or have heard) that a loan audit and violations of the TILA can only help you if it’s a refinance loan on a primary residence in the last three (3) years. To have the EXTENDED RIGHT TO RESCIND, these conditions must be in place but rescission isn’t the only thing that can help someone in (or in danger of) foreclosure.

When it comes to defending yourself against foreclosure the first order of business is to establish clear and genuine issues of material fact in the case. In a Florida foreclosure defense strategy, the client wants to quantify these genuine issues of material fact in the foreclosure case because no judge should ever grant a motion for summary judgment. Why?

In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 974 So.2d 565. A “material fact,” for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214.

Successfully defeating summary judgment is a big score in favor of the consumer and can greatly improve the chances of obtaining a viable and fair workout and thus ultimately, avoiding foreclosure.

So, one area of practice Lane Houk and his team help consumer attorneys with is by completing a forensic loan audit on the client’s loan documents from the day they applied for that loan through to current day. Why would a foreclosure client want this done? Let’s think about it…

  1. Often times, the client did not receive proper “pre-closing disclosures” under both Truth in Lending laws (TILA) and Real Estate Settlement Procedures Act (RESPA);
  2. Especially when there was a mortgage broker or interim lender involved
  3. The actual “lender” in the transaction was under same timeframe obligations to make specific disclosures to client from the day they received application
  4. The many servicing abuses which could have taken place from day of closing to current
  5. Insufficient amount of certain disclosure violations
  6. Escrow mishandling abuses (I’ve seen people nearly lose their house to a bona fide mistake the bank made but wouldn’t budge until a good attorney got involved)
  7. The list goes on…

Under the TILA civil liability section [15 U.S.C. 1640(e)] regarding violations it says that any action under that section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. But, that subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment

A consumer can only bring an action for damages within one year from the date of closing. However, the consumer is not barred from bringing a claim as a “matter of defense by recoupment” in a foreclosure action because a foreclosure action is an action to collect the debt. (ie. almost all foreclosure complaints are served with some level of disclosure that “this is an action to collect on a debt”) however NOT disclosing that does not necessarily preclude that any such action is NOT an attempt to collect on the debt.)

Any such quantified claim of a violation of the TILA (Truth in Lending Act) from an expert audit report should be brought as an affirmative defense by the attorney. This is a rock solid issue of material fact. No summary judgment. The lender will have to bring the action all the way through to trial. This should give you much greater leverage to obtain a workout. At the very least, this give you/your client much greater time in the house and time to try to work something out that works for both parties; something that is much needed these days because I still see a great deal of servicer abuse/misprepresenations happening every single day.

I hope this little insight gives you some ideas on how you can help yourself in a foreclosure case. If you want more information on forensic loan audit, please call me at (800) 985-4685 ext. 2 or by email at [email protected]

© Lane A. Houk – 2009- All Rights Reserved

Pro Se Primer 101 – 3 – Constitutional Irreducible Minimum Requirements of Standing in Foreclosure

STANDING AS DEFINED BY THE UNITED STATES SUPREME COURT

“Why put all of the blame on the attorneys? Hell, most of them don’t know the law.”

If you were to walk into a 2nd grade elementary school class room and see that all of the boys are standing on their desks shaking their butts, laughing and shouting, and throwing things at the girls in the class, who respond by screaming and running, and then you notice that the 2nd grade teacher is setting at his desk doing nothing to stop the chaos, would you really blame, the children?

No, it is the teacher who is charge of the room. If the teacher does not enforce the rules of classroom behavior, then the children will act like wild monkeys. How would they know not to?

It is no different than the judge in the court case who is charged with controlling and enforcing correctness in information and procedure in a court case.

If the judge does not enforce the constitution, which is all that keeps this country great;

If the judge does not make the attorneys prove their claims and/ or does not keep them from claiming transfers of ownership of essential Promissory Notes with assignments of incidental security instruments (mortgage or deed of trust) which do nothing but describe the collateral, then, of course the attorneys are going to forge and fake and lie, worse than wild monkeys;

Then lack of subject matter jurisdiction is the fault of the judge of the court. He or she places the burden of proof of standing on the borrower (very nearly every time), yet it very clearly is the burden of the court.

The judge promised when he took the job that he, or she, would enforce and protect the laws that come from the constitution and that they defend the court ferociously from losing the public trust. Maybe that was too much to ask from a pompous ass.

Why did we all expect more of judges and attorneys anyway?

If I am any part of the public, then I can tell you for sure, the courts have lost some of the public trust.

It is difficult to pull Borrowers back from their searches for Promissory Notes, Assignments of Mortgage, MERS, PSA etc., etc., thinking like Dick Tracy and looking for a way to “prove” that the party trying to foreclose on them does not have the authority, or, STANDING, to do so.

But, if what I say is true and the judges are letting the attorneys run amuck like the 2nd graders in my description, who can blame the attorneys for running amuck. “Amuck” is quickly becoming synonymous with the “actions of the courts”.

If you had seen judges simply ignore proof when it is presented as much as I have, then what I am really trying to say is that this whole thing is only about Standing and in constitutional law only the court (the court is the judge and the judge is the court.) has the initial burden of determining if the foreclosing party is a Plaintiff with Standing.

It is only the Supreme Court that has original jurisdiction over all issues of Constitutional rights. No state judge or local judge should claim that they have superior jurisdiction to the Supreme Court and it’s decisions.

The way it has been practiced for the last 15 to 20 years has been exactly the opposite.

The judges have been sitting up there on their hands on the bench and waiting for the Borrowers to describe what the foreclosing party was up to and forcing the Borrower prove it. These cases nearly always begin with the judge placing the burden on the Borrower to prove what the Foreclosing Party has tried very hard to hide. That is a ridiculous premise. John Adams, Thomas Jefferson and the rest thought so too.

If an act of fraud is working here, then by definition the act was meant to be kept hidden.

How would the Borrower prove or disprove something he was not privy to. It is the foreclosing party who must claim that he has been wronged by the borrower and it is this same foreclosing party that must prove it (not claim it) with evidence which is “concrete and particularized”.

So, the way it works in reality law is that the judge cannot even preside over a case until he reads what the Plaintiff (in judicial states and defendant in non-judicial states) has written in their lawsuit to make the claim that the court should hand them the deed to your home and that they should get to sell it and keep the money. How this has been allowed to happen illegally ten million times is a shameful disgrace for the majority of our judiciary. It is truly unbelievable. Not untrue, just unbelievable. (There have been many beautiful and sane rulings also, but it is nowhere near “fair” yet.)

It would be very difficult for me to show you how Challenging Standing s is supposed to be working, because no one is doing what I am doing, so it is still, in essence, only in my head. There are hundreds of citations concerning case rulings on the subject, but they are mostly contract law cases from other industries. Home Loans funded with a Promissory Note are all contract law, but no one is doing it enforcing them is the correct way as required by United States Constitution, the basis of all American law.

That doesn’t change how it works with your home loan, because contract law is what governs home loans.

So, since it is the judges burden to know that he or she has subject matter jurisdiction, which he needs to even begin the case, he must see the proof of standing the Foreclosing Party wrote in his lawsuit.

Borrowers, before anything else, you must first understand the proof that is required to establish Standing. If prooff has not been presented and the judge rules without Standing and therefore without subject matter jurisdiction, then he has broken the law and this is the only situation where a judge does not have “absolute immunity”.

If he rules against you, right or wrong, without having “subject matter” jurisdiction he has done so as a “civilian” and if has barred you from any of your constitutional civil rights, he is liable to you for any money or property harm that you have suffered. You don’t really sue the judge as a judge, you sue the man or woman who acted as a judge without the requirements needed to create a legitimate court with subject matter jurisdiction.

There was no legitimate court for any foreclosure case that I have ever seen. I have seen as many as anybody.

So, first things first. Review, slowly and carefully what the US Supreme Court has determined is the constitutional minimum requirements for Standing. The words they use is the strategic offense you will use to keep your house safe from anyone that you do not owe the money to.

Let me know if you can see how those words fit your situation. If not, we will go over them again before moving on, as to how and when we would apply them.

Below is an actual paragraph from my own motion to vacate a void judgment of foreclosure.

Plaintiffs have filed to Invoke their Rights to Challenge the Standing of the Defendants at any Time Under Article III of the United States Constitution earlier into this court case, yet this court failed to even mention or give any recognition that the court had even read the Borrower/Plaintiffs’ invocation of this fundamental constitutional civil right, which was foremost the responsibility of this court.

Plaintiffs state as follows and the court ignores at its own peril:

1.) That Article III of the Constitution of the United States and the Supreme Court have established a constitutional irreducible minimum set of requirements for a party in a genuine dispute to establish Standing. Without Standing of the Foreclosing Party, all courts in the land must acknowledge that the court has no jurisdiction to hear any merits of a case and must dismiss the subject action, in this case the void and fraudulent foreclosure of Plaintiffs’ property.

1a.) That only the United States Supreme Court has original jurisdiction over constitutional question issues.

(The decisions of the United States Supreme Court, whether right or wrong, are supreme: they are binding on all courts of this land, Hoover v. Holston Valley Community Hospital, 545 F. Supp. 8, 13 (E. D. Tenn. 1981) (quoting Jordan V. Gilligan, 500 2 F.3d 701, 707(6th Cir. 1974).

(The lower courts are bound by Supreme Court precedent, Adams v. Department of Juvenile Justice of New York City, 143 F.3d, 61, 65(2nd Cir. 1998)

(Walker v. Quality Loan Service Corp. of Washington et al., No. 65975-8-1)

(Washington State Supreme Court, Bain v. Metro. Mortg. Group, Inc., et al.175 Wn.2d 83, 285 P.3d 34 (2012))

2.) That the requirements in a case of Non-Judicial Foreclosure actions are:

1. The foreclosing party must claim and prove with concrete and particularized evidence that it has sustained and Injury in Fact.

2. This Injury must be fairly traceable to the foreclosed party with concrete and substantive evidence.

3. The court must be able to redress the injury with a ruling in favor of the injured party.

3.) That if it is the alleged foreclosed party that is the claimant party then it must also 1. claim and prove an injury in fact. 2. Its’ injury must be fairly traceable to the foreclosing party. 3. Its’ injury must be able to be redressed by the court.

4.) That the United States Supreme Court defines the requirements of Standing as:

3.1.B. The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy to be permitted to litigate it. The question of injury raises two questions –

(1) what kinds of injuries count for purposes of standing and

(2) how certain the injury must be if it has not yet occurred.

3.1.B.1. Injury in Fact

The Supreme Court has held that, to satisfy the injury in fact requirement, a party seeking to invoke the jurisdiction of a federal court must show three things:

(1) “an invasion of a legally protected interest,”

(2) that is “concrete and particularized,” and f

(3) “actual or imminent, not conjectural or hypothetical. The following section discusses several types of injuries considered by the Supreme Court in determining whether there is a legally protected interest.

3.1.B.1.a. Economic Interests

The Supreme Court has had no difficultly determining that economic interests are legally protected interests. More difficult is determining when economic injury that has yet to occur is sufficiently imminent and likely to confer standing. The Court has been relatively forgiving in this regard. Economic injury need not have already occurred but can result from policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a bargaining chip. In Clinton v. New York, for instance, the Court held that New York had standing to challenge the veto of legislation permitting the state to keep disputed Medicaid funds. The veto left the state’s ability to retain the funds uncertain, subject to the outcome of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a substantial contingent liability” sufficient to confer standing.

3.1.B.5. Injury Fairly Traceable to the Challenged Conduct

In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly traceable to the defendant’s unlawful conduct. In cases in which the government acts against the plaintiff, causation is simple.

3.1.B.6. Relief Sought to Redress Injury

A corollary to the Supreme Court’s requirement for standing, that the injury alleged be fairly traceable to the challenged conduct is the separate requirement that the relief sought must redress the injury. In the great majority of cases the inquiry into causation and redressability are indistinguishable.

Thus, in Warth, the Court held that there was no reason to suppose that the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield. In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to think that revoking the IRS Revenue Ruling at issue would assure that the next ill or injured poor person would be admitted to a hospital.

Furthermore, in Allen, the Court held it was entirely speculative that revoking tax-exempt status for allegedly discriminatory private schools would serve to foster public school integration. What is peculiar about the Court’s concern for redressability is the elevation of the question of remedial efficacy to constitutional status.

While the scope of equitable relief to redress unlawful governmental action has long been a matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing. The plaintiff in Lyons sought damages and injunctive relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately. The Court conceded that Lyons had standing to sue for damages. However, the Court held that he lacked standing to seek injunctive relief, as an injunction would not redress his injury because it was unlikely that he would be arrested and choked again.

You really aren’t trying to outsmart attorneys or that joke of an entity the foreclosing party. What you really want to do is to place the judge in as much of a pickle as you are in (jeopardy).

5 Ways to Stop Foreclosure Immediately – Don’t Let the Bank Destroy Your Family

There are various ways to stop foreclosure immediately, but the most common way homeowners can prevent foreclosure is by using the loan modification process. During this time of financial unrest, getting out of a bad financial situation is not really unheard of. Families today have options and lenders are willing to work with your family to keep you in your home. The following ideas could help keep the stress off your shoulders and the creditors and loan collectors off your back.

1: Refinance your original loan. Money lenders will consider foreclosure refinance loans if they feel you will not neglect making payments to them. Qualifying for refinancing is tough and the requirements are strict. The requirements include equity from your home and a steady income. Although the payments may turn out to be higher some homeowners prefer to start off fresh and use refinance as one of the ways to stop foreclosure of their family home. But let’s face it; there has to be an easier way.

2: Selling to a relative or close friend to prevent foreclosure may be your only way out temporarily. You will be out of your financial situation and be able to have them carry you for a while until you land back on your feet. You can lease or rent back the property from them until you are financially able to buy the property back. But if you don’t feel safe or trusting with the people you’ll be working with; this option may turn into a way for family or friend to make a quick profit selling your home at a reduced rate.

3: Try bankruptcy to stop a foreclosure in progress, but this can become an expensive alternative. The amount of payments which need to be made to satisfy the creditors and bankruptcy costs make this an option for those who have a large amount of disposable income. Let’s face it if disposable income is available your family wouldn’t be in this situation.

4: One of the easiest ways to stop foreclosure immediately is to sell the property outright before the foreclosure has time to proceed. If you can get enough for your home paying off your debt in time will stop the foreclosure from proceeding but will leave your family looking for a new place to live.

5: Work with an online loan modification service to prevent or stop a foreclosure from going through. This type of service will work with your lender to help rework your arrangement in order for your family to keep their home. The banks would prefer to get paid and not have to deal with trying to sell your home. This option will at the very least help you to repair your credit and hopefully prepare you to purchase another home in the future.

Foreclosure – How Long Before I Lose My House?

Many homeowners have questions about how foreclosure works and how long they have between when they miss a payment and when the bank actually forecloses. If you’re wondering how long you have before you have to leave, it depends on whether your case will be handled in a judicial foreclosure or in a non-judicial foreclosure. Most states allow both, but some states only allow one or the other, so you’ll have to research to find out which your is for sure, but there’s a good chance yours will be non-judicial because it moves faster and costs less for the lender.

All Foreclosures

– You miss your first payment (for example, we’ll say this is your July payment and it was due on July 1).

– Your grace period expires (usually 15 days) and you haven’t paid. Your payment is now considered late by your lender. It’s not uncommon to begin getting letters or phone calls from them at this point. Don’t ignore these phone calls.

– At most lenders, once you’re 60 days late (September 2 in our case), your loan is considered in default and the lender can begin either the Judicial or Non-Judicial foreclosure process. To bring your loan current at this point, you’ll usually be required to pay all past due amounts (your July and August payments), all late fees, and your September payment.

This is where lenders have the most flexibility in the process. They aren’t required to enter the foreclosure process simply because you’ve fallen a certain number of days behind. If you’re in communication with them and have worked out a plan to get back current, you can stay out of foreclosure altogether, but you have to take action.

Judicial Foreclosures

– Your lender’s lawyer will file a complaint with your county courthouse and request a court date. This typically doesn’t happen until you’re over 90 days late.

– You’ll be served a notice of this complaint.

– A hearing will be held in your county to determine the sufficiency of the complaint. If you believe you have legal grounds to dispute the foreclosure, this is where you and your lawyer would argue those grounds. At the end of this hearing, the judge will rule whether the complaint is sufficient or not. If it is, the foreclosure sale will be scheduled and your credit record will be marked as having a foreclosure. If it’s not sufficient, the judge will dismiss it. How long all of this takes is dependent upon the courts in your area. Typically, it takes about 30 – 60 days.

– A date will be set for redemption of the property if your state laws stipulate. You can still bring your loan current (including fees, etc) until the redemption date. Even if the house has been sold and someone has moved in, if the redemption date hasn’t passed, you can still get your house back…if you can get enough money.

– A date will be set for the foreclosure auction. This usually happens about 30 – 45 days after the sufficiency hearing.

*** A Judicial foreclosure typically takes anywhere from 6 months to 2 years from start to finish. ***

Non-Judicial Foreclosures

– Your lender will send you a Notice of Default in the mail.

– Your lender will send you a Notice of Sale to tell you when your home will be sold at the foreclosure auction.

*** A Non-Judicial foreclosure typically takes anywhere from 1 month to 1 year to complete. ***

All Foreclosures

– The foreclosure sale happens and your house is sold. In approximately 90 – 95% of cases, the owner of your first mortgage wins the auction because they bid the amount that you owe on that loan and usually no one else will go higher than that.

The owner of your home then contacts the county sheriff who posts a notice of eviction on your door. This notice gives you 24 – 72 hours to leave the house and have all of your possessions out. If you’re there when the sheriff returns, he will escort of off the premises and anything left on or in the property will then belong to the new homeowner.

Foreclosure Hunting For Cell Tower Leases

Real estate investors who buy foreclosures are finding more and more apartment buildings with existing cellular antenna leases. Cell tower leases can be the foreclosure buyer’s best friend. However, buying foreclosed properties with a cell site lease is not easy, but the deals are out there. Even the savvy real estate investor who buys a lot of foreclosures is probably not going to be a telecom leasing expert, and frankly even the real estate investing experts don’t know squat about how to deal with a cell tower lease when you buy a foreclosed building.

A cellular antenna lease will either be attached to cell tower on raw land or rooftop cellular antenna installation on commercial or residential property. If the property is a foreclosure and the bank is not yet the receiver, it’s going to be difficult getting the information unless the Owner/Landlord is cooperative and trusts you enough to let you look at the lease. There really isn’t a way to identify these types of foreclosure properties. These types of deals are very difficult to find, and we recommend that you don’t waste your time chasing these rainbows. Focus on the low hanging fruit: bank owned residential apartment buildings and commercial properties.

It’s much easier looking for REO’s with existing cellular tenants. If the property is bank owned, as the receiver they need to disclose every existing lease encumbering the Premises prior to sale, and it’s in their best interest to provide the details of the lease or if your are lucky… multiple carrier leases.

You need to figure out the value of the lease. You want to know the commencement date of the lease, which is the date that they started paying the Owner after cell site approval. You want to know the amount of rent they are paying monthly, and what the annual increases are that the previous owner agreed to, and how many years are remaining on the back end of the lease. The particular cellular carrier will also determine the value of cell tower lease on Wall Street.

How can real estate investors find foreclosure properties that have cellular carriers as a tenant?

This is where you need to be creative. Good foreclosure investors have their bird dogs who send them deals. Chances are that they never thought about looking for foreclosures with cellular antenna site leases. Your best bet is to network with your bank’s foreclosure specialist or REO Manager.

All major banks have buildings on their books with cellular site leases which they aren’t marketing to investors. They are simply too busy to pull together a database of foreclosed properties with existing wireless carrier tenants.

Successful real estate investors who want to find these deals should tap into their existing relationships at the banks that do business in the territory that they operate in to identify potential deals that have existing cellular leases and where the bank is acting as the receiver. Ask your banker to scan their foreclosure property / REO database for terms such as Verizon Wireless, T-Mobile, Omnipoint, Cellco, Sprint, Nextel, Alltel, Cingular, AT&T, Metro PCS, Crown, Towerco, SBA, or American Tower. If you find a foreclosed property or building with a cell tower lease attached, you can significantly sweeten the deal for yourself because you can pull cash out of the cellular lease – often times six figure amounts – and put it towards the mortgage or towards buying another building.

It’s also a very good idea to have a cell tower leasing expert review the terms of your lease, which disqualifies 99% of real estate attorneys.

Creative Foreclosure Avoidance Solution: Mortgage Assumption

You’re in a situation where you’re already three months late on your mortgage. Fortunately, no foreclosure lawsuits have taken place and you still have options. Your wife is starting to wonder why you’re always worried. She hasn’t received the memo. The dream house that you and your family purchased several years ago is turning out to be more than you can handle, especially with all of the unexpected bills popping up left and right. If you don’t do something soon, you’ll find yourself and your family in a very bad situation.

Looking at your situation, you can see that your property is in good shape less normal wear and tear. You can’t sell without having to come to closing with at least $35,000.00 which you don’t have right now. The reason for this is a house down the block in better condition sold last month for $150,000.00. You owe $185,000.00 and no one is willing to pay that much for your property. You don’t like the idea of doing a Short Sale as you’ve heard of the many horror stories that people go through during and after the process. Your credit does not get affected as much as it would after a foreclosure but it still takes a hit. In addition, there is still about a 35% chance that the bank may still come after you for the difference and that won’t be any fun. To top it all off the success rates of Short Sales are about fifty percent among the industry.

Listing with a Realtor and waiting for a buyer is pointless as you can’t come to closing with the difference and doing a Short Sale is definitely out of the question. Here is something that you might not have thought of: Mortgage Assumption. Some people call it different things such as Subject To the existing mortgage or Mortgage Management.

Mortgage Assumption involves transferring the deed of your property to another buyer in exchange for their bringing the mortgage current and maintaining payments. In the Real Estate market of 2013 – 2018, it’s very hard to get approved for a mortgage among American locals. This method of doing business opens the doors to thousands of buyers who, due to various circumstances, can’t qualify for a mortgage.

Your best bet in this situation is to work with a seasoned professional Real Estate buyer who can either assume the mortgage himself or find several interested parties to do so. There are not many professionals who know how to legally structure this correctly and finding an agent who knows how to do this is like finding a needle in a haystack. Find a well connected Real Estate investor who can assist you and allow you to move on with your life and preserve and maintain your good credit standing.

Foreclosure Hardship Letter – Sample For Bank Loss Mitigation Department

A foreclosure hardship letter is an integral part of Loan Modification or Short Sale package. When homeowners are facing foreclosure, these documents are submitted to the Loss Mitigation Department of the mortgage lender. Loan modifications are offered to homeowners who have the financial ability to become current on delinquent payments. Short sales are offered to homeowners who do not have the financial means to pay their mortgage payments. Lenders who accept short sales offers agree to accept less than is owed on the mortgage note.

For most people, the foreclosure hardship letter is the most difficult aspect of loan modification or short sale procedures. It can be excruciatingly painful to express on paper the circumstances which caused the homeowner to fall behind on their mortgage payments. Many people are intimidated by the hardship letter. They don’t know what to say or how to format the letter so it is easy to read and understand.

Keep in mind, foreclosures and short sales are handled by the Loss Mitigation Department of your lender. Employees of this department are referred to as Loss Mitigators. Before you can submit a loan modification or short sale package, you must receive approval from the Loss Mitigator assigned to your account.

More than likely, you will have ample opportunities to personally speak to the Loss Mitigator handling your account. These individuals deal with homeowners in financial distress on a daily basis. Take advantage of building a relationship with your assigned mitigator and ask questions to help you better understand what your mitigator expects. Loss mitigators can make or break your deal, so always treat them with respect and provide them the information they request.

Your foreclosure hardship letter will be read by your personal loss mitigator. Realize these individuals receive dozens of hardship letters daily. Therefore, it is crucial to keep your letter short and to the point, while covering pertinent facts.

When composing your hardship letter you can either write it by hand or type it. If your handwriting is illegible, it is best to type the letter or have someone else write it for you. The foreclosure hardship letter is one of the most crucial elements of your loan modification or short sale package, so take every precaution to ensure the Loss Mitigator can easily read and understand it.

Real estate experts recommend using a business format for the foreclosure hardship letter. This involves placing your name, address, city, zip and phone number at the top of the page. Leave two spaces, then write the name of your loss mitigator, name of your mortgage lender, along with their mailing address. The next line should include the current date. Place your loan number underneath the date. The body of the letter should be between four and six paragraphs. Close the letter by signing and printing your name.

The following is an example of the foreclosure hardship letter. You can make adjustments to the text depending on if you are seeking a loan modification or short sale arrangement.

Bob and Jane Smith

123 Any Street

Your City, State 12345

Tom Jones

USA Lender

123 Anywhere Avenue, Suite A

Anytown, State 12345

Current Date

RE: Your Loan Number (include either Loan Modification or Short Sale)

Dear Mr. Jones,

We are contacting you today to request a (loan modification or short sale) for our property located at (insert address, city, state). We appreciate the opportunity to explain the circumstances which have caused us to fall behind on our mortgage payments. Although we have done everything possible to improve our financial situation, we are still short on the money owed to you.

The reason we have become delinquent in our mortgage payments is (explain the reason here). At this time we do not have enough income to pay our regular monthly mortgage payment. We are concerned that we are falling further behind and will not be able to pay what is owed. We have every intention of paying what is owed, but at this time do not know how to accomplish this. Therefore, we are turning to you for assistance.

We are asking for consideration to temporarily reduce or suspend our mortgage payments for a few months (or allow us to sell our home via a short sale). Doing so, would help us get back on track. Our home means a great deal to us and we desire to work with you to keep it out of foreclosure. Please advise of all options available to stop foreclosure (or initiate a short sale) at your earliest convenience. We are anxious to reach an agreement and appreciate your prompt response.

Respectfully yours,

Print name of Borrower(s)

Signature of Borrower(s)

Loan #

Address

Phone

email address (if applicable)

It is imperative to send the foreclosure hardship letter via certified mail with a return receipt requested. This will ensure you have proof you sent the letter. The return receipt must be signed by someone at the lending institution and the signature card will be returned to you in the mail.

Foreclosure Woes

If your mortgage is at a very large bank, you have made a mistake! Trying to work out a solution to your deficiency is very complicated and the service is lousy. Your foreclosure woes have begun!

A friend was delinquent with her mortgage payments. She had owned her property for 37 years. The bank filed the papers to put the property in receivership (foreclosure action) to the bank. The friend immediately phoned the bank to see if there was anything she could do. She worked out a plan with the bank to reduce her payments and followed through for 13 months of on-time, full, adjusted payments. When she attempted to make the 14th payment, the bank returned it.

One day, she received a notice that her home was scheduled for a “Sheriff’s Sale.” Puzzled by the notice, she immediately phoned the bank and was told that they did not need to file any more legal papers, since they had previously filed the necessary papers (before she made the arrangements) and the application for Obama mortgage assistance had been rejected. What this means is that the deficit, the difference between payments under existing mortgage and the adjusted payments while the Obama mortgage assistance modification application was awaiting approval or rejection, was due in full when the application was rejected. Example: Payment under existing mortgage, $1100; payment under Obama mortgage assistance, $700. Rejection would mean $400 X 13 or $5,200 would be due immediately and there could be fees attached. During the 13 months, no statement showing her account was ever provided by the bank. She was advised that when a mortgage is in default, the bank has no legal obligation to provide a statement of the account.

The bank purchased the property at the “Sheriff’s Sale”. Did you know that following a “Sheriff’s Sale” and confirmation of the sale, the bank (buyer) only must give you 48 hours to vacate? Furthermore, you will have all these strangers entering your property to complete various tasks on behalf of the lender/buyer (the bank).

People all around me are losing their homes due to foreclosure. It is almost a repeat of the Great Depression. The exception is that in the Great Depression, saved money placed with banks was also lost. Today, bank accounts are insured by the FDIC.

What brought this dilemma on? My thoughts on this are that credit was “too easy”! On the lender side, banks and mortgage companies were willing to be liable for too much mortgage. On the buyer side, a lack of concern and understanding of how much debt was being taken on. No one planned on losing a job or other circumstances, not being able to meet those mortgage payments. You always want the lowest payment possible at the lowest interest rate. I personally experienced this. When times are tough, you need to work closely with your lender. In 1946, a family member, who owned with a mortgage loan, sometimes only made the interest payment of the mortgage due to hardship. They did not lose their property but many years later, paid it off. Could this be a solution to the present day foreclosure woes?

The Obama Making Home Affordable program (loan modification program) is a complete disaster. Those who really need the help are not getting it. A recent conversation with my banker revealed the seminars attended by the financial employees of mortgage lending institutions left them with a big blank trying to understand what the heck it is supposed to do. The mortgage lending firms are less than helpful to the customers who have or will be very shortly losing their homes. One application was returned reject because the owner’s income was too low. Isn’t that what a loan modification should be considering when reviewing need? Very few people have been approved under the Making Home Affordable program.

If you are having a problem making your mortgage loan payments, the best thing you can do is visit your lender in person and suggest that maybe you could just pay the interest on the loan for a period of time.

Obviously, not being able to pay your mortgage payment is a very serious situation and should be avoided at all costs, even to the point of putting the property up for sale. You will not see a penny of your equity should you allow your lender to foreclose. It is also very important that your mortgage lender is local.