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Mortgage Servicing and Loan Modifications: 11.2.1 Client Interview

The client interview process is critical in evaluating the homeowner’s potential defenses to foreclosure and affirmative claims. The initial interview defines the scope of the legal services needed based on the problem and the homeowner’s goals. The first client interview also shapes the homeowner’s perception of the lawyer.

Mortgage Servicing and Loan Modifications: 11.3.1 Introduction

Foreclosure cases often involve hundreds, if not thousands, of pages of documents. Ensuring that documents necessary to prove your case are admissible is critical to a successful case. Conversely, excluding inadmissible documents offered by a lender or mortgage servicer can also affect the case outcome. This section considers the application of the Federal Rules of Evidence to various common foreclosure related documents.

Mortgage Servicing and Loan Modifications: 11.6 Bond Requirements

The Federal Rules of Civil Procedure and many state rules of civil procedure permit courts to issue preliminary injunctions or temporary restraining orders only if the movant gives security in an amount the court considers proper.406 Federal Rule of Civil Procedure 65(c) allows a court to grant preliminary injunctive relief “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrong

Mortgage Servicing and Loan Modifications: 11.7.1 Introduction

A number of doctrines may limit the ability of federal courts to decide or revisit certain matters. In particular, the homeowner’s ability to challenge a mortgage transaction or foreclosure in federal court is complicated when there is a related state court proceeding. These issues may arise when the homeowner files an action in federal court to rescind or challenge a mortgage transaction and there is a threatened, pending, or concluded action in state court to foreclose on the home or to evict the homeowner.

Mortgage Servicing and Loan Modifications: 11.8 The Merrill Doctrine

Special issues arise when a servicer acts on behalf of a loan owner that is a federal governmental entity. Most often, this occurs when one of the GSEs, such as Fannie Mae or Freddie Mac, owns the borrower’s mortgage loan. In these situations, a court-created rule known as the Merrill doctrine may limit application of otherwise controlling agency principles.

Home Foreclosures: 8.1 Introduction

This chapter provides general guidance on litigating foreclosure and mortgage servicing related claims and defenses. The chapter is intended to be used in conjunction with all the chapters in this treatise, which discuss substantive and procedural defenses to foreclosures.

Mortgage Servicing and Loan Modifications: 11.2.2.1 Overview

Mortgage loans typically involve a thick stack of paperwork. Some of these documents are required by federal or state law. Others are used because of industry custom or lender practice. Some documents, such as a pooling and servicing agreement or an assignment, may be generated after the loan closing as the loan travels through the secondary mortgage market. Mortgage servicers also generate records, such as payment histories and escrow account information, which may be relevant to a homeowner’s claims.

Student Loan Law: 8.6.3.1 Statute of Limitations Generally Eliminated

The Higher Education Technical Amendments of 1991, which made technical amendments to the Higher Education Act (HEA), eliminated all statutes of limitation for any collection action by a school, guaranty agency, or the United States under a federal loan program.289 The provision eliminating the statute of limitations for collections refers to both loans and grant overpayments.290 These amendments also eliminated all limitation periods for tax intercepts, wage garnishments, and other collecti

Home Foreclosures: 12.1.1 Introduction

Most of the basic principles that apply when a lender forecloses upon a first mortgage also control when the foreclosure involves a second mortgage. However, second mortgage foreclosures present distinct issues that advocates must be prepared to address. The following two sections of this chapter review general rules that apply in two distinct scenarios. The first considers the impact of foreclosure of a senior mortgage when the same property secures one or more junior mortgages.

Home Foreclosures: 9.6.3 Manufactured Home Loans

If the creditor’s claim is not secured solely by a security interest in “real property” that is the debtor’s principal residence, the secured loan may be modified. Before the 2005 Code amendments, it was clear that a lien secured by real estate upon which a manufactured home was situated, or a lien secured by the manufactured home itself, were not secured solely by real property that was the debtor’s principal residence and could be stripped-off if the manufactured home was treated as personalty under state law.495

Home Foreclosures: 9.6.4 Mortgages with Additional Security

A claim that is not secured “only” by the debtor’s principal residence, such as when additional security is provided, may be modified. The 2005 Act attempts to limit modification on these grounds by adding a definition of “debtor’s principal residence” as a residential structure which includes “incidental property.”499 A separate definition of “incidental property” is also added by the 2005 Act, which refers to property rights going beyond ownership of the structure. The term “incidental property” is specifically defined to mean:

Home Foreclosures: 9.8 Avoiding Judicial Liens—Section 522(f)(1)

In bankruptcy, the debtor may “avoid” (i.e., nullify) many types of prebankruptcy transfers of exempt property.525 The power to avoid transfers is expansive, due, in part, to the broad definition of the word “transfer” in the Code.526 The debtor, with some limitations, may invalidate numerous types of transfers, and recover valuable interests in property, as long as the interest in the property can be claimed as exempt.527 Exemptions may be establi

Home Foreclosures: 9.9.1 Requirements of Section 521(a)(2)

Section 521(a)(2)539 requires the debtor to file a statement of intentions with respect to property securing consumer debts. The debtor need not state all of their plans regarding the property on this statement (e.g., lien avoidance, continuing payments in accordance with 11 U.S.C. § 524(j), etc.). All that is required is a declaration that the debtor intends to retain or to surrender the collateral, and, if applicable, to claim it as exempt, to redeem it, to reaffirm the secured debt, or assume an unexpired lease on the property.