The current world scenario has witnessed a growing popularity for the foreclosure properties. The lower cost of foreclosure properties is the primary reason for the popularity of foreclosure properties. Many people who cannot afford to spend huge sums of money on properties can have their dream home through foreclosure auctions. Most of the realtors also consider investing on foreclosure properties to be ideal business ventures that earn them potential remuneration for their investment.

Foreclosure properties are those homes that are seized by the loaning agencies like banks on the non-payment of the loan amount by the owner and are then auctioned for the recovery of the loan amount. There are various reasons for the cheap availability of foreclosure properties like their bad condition or the hurry on the part of the creditor to recover the loan amount. This is the primary reason for the low cost of foreclosure homes and investing in them can serve your purpose of owning a home in the most effective manner.

Buying home foreclosures might sound easier however, you need to ensure few precautionary steps to buy yourself a worthy deal.

First and foremost thing is to find the most suitable home foreclosure. For this purpose you can refer to the various foreclosure listings available online. You should however check the genuineness of the website first. You should also see to it that the foreclosure listing you are referring to is updated with the latest information and knowledge about the availability of foreclosure properties. Referring to various government listings available can also serve you a good purpose. Information about the available foreclosure properties can also be found out from local newspapers that displays news about foreclosure properties. Another method for finding out suitable foreclosure properties is to consult professionals with expert knowledge in this field.

After you have found a suitable foreclosure home you need to check the location of the home you are intending to buy. You should see to it that the foreclosure home chosen by you has a good social back grounding and is set in a good and friendly locality. The distance of your office and other places of regular visit should also be calculated to ensure that the distance might not become an area of concern in the later period.

Evaluating the repair cost of the foreclosure property that you are intending to buy is also very important. You should calculate the cost of repairs that the foreclosure property requires and then add it with the auction cost of the property. If this amount exceeds the actual cost of the home you should decide against buying such foreclosure homes as they won’t be profitable. For the evaluation of the cost professional service should be hired as they would calculate the exact costs and give valuable suggestions regarding your decision.

Professionals through their expert handling will also guide you through the legal complications involved in the process. Following these steps and hiring professional service from experts would help you in buying your ideal home at affordable costs through foreclosures.

Challenging Wrongful Foreclosure in Nevada

 LAW OFFICE OF MALIK W. AHMAD

ATTORNEY AT LAW

 

(702) 270-9100

 

WWW.FASTBANKRUPTCYNEVADA.COM

 

WWW.MYMALIKLAW.COM

 

Foreclosures are on the rise and in fact the largest in United States according to the latest statistics. Where ever two or more people get together they are discussing economy or foreclosure in Nevada, and especially in Las Vegas. This is a brief guide for lay persons about how to challenge foreclosure successfully, a feat that is possible though difficult. However, this memo is not a substitute for legal assistance, which is usually essential in this complex area of the law. Please get a proper legal help from a licensed and qualified attorney in Nevada as well as in Las Vegas. Also, be very suspicious of agencies or people who are calling from outside Nevada, with a different area code. Ask them first question what is the name of their attorney and his date of admission and possibly if you can speak to him directly. Please under no circumstances give any information to them.

This memo is divided into the following parts:

• Filing Bankruptcy before Foreclosure Occurs

 

• Suing to Enjoin Foreclosure before It Occurs

 

• Suing to Set Aside a Foreclosure that Has Already Taken Place

 

• Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

 

• Filing Bankruptcy after Foreclosure

 

• Procedural Grounds for Challenging the Foreclosure

 

• Substantive Grounds for Challenging the Foreclosure

Filing Bankruptcy before Foreclosure Occurs

 

 

This is often the shortest and simplest procedure. It has the following advantages: a bankruptcy filing automatically prevents foreclosure temporarily and sometimes permanently; you have the opportunity to cure a default in your payments by paying the delinquent amount in installments over a reasonable period; you may be able to reduce or eliminate the fees of the lender’s attorney; and you may be able to avoid interest on the amount you are delinquent (though not interest on the loan itself).

Generally, you will need a lawyer in bankruptcy. You must file before the foreclosure sale takes place, a time that usually is only 20 or so days after the foreclosure process starts with a letter to you or a notice in a newspaper.

Suing to Enjoin Foreclosure before It Occurs

 

 

To obtain an injunction, you must file a complaint in a court. You will need a lawyer. The process is made more arduous by a requirement that you give five days’ notice to the lender before seeking to enjoin the foreclosure. This reduces the 20-day period to 15 days for acting.

 

Temporary injunctions require a “clear” showing of “immediate and irreparable injury, loss or damage” or “that the acts or omissions of the adverse party will tend to render [the] final judgment ineffectual.” Judges take this requirement seriously.

 

The most difficult requirement of all may be the need to give a bond “in such sum as the court … deems proper” unless you successfully obtain permission to bring the action as an indigent person. A homeowner with only modest amounts of other assets and income may be unable to qualify as indigent and may also be unable to find anyone willing to provide a bond, especially one on short notice.

Suing to Set Aside a Foreclosure that Has Already Taken Place

The grounds for setting aside a foreclosure are limited to “some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price.” Defenses like the absence of a delinquency or violations by the lender of federal or state commercial law may not be raised.

You have the burden of proof in a lawsuit to set aside a foreclosure. Damages are the only remedy. There is nothing to prevent a third-party purchaser from keeping your house even if he knows of your claim against the lender and even if he believes that your claim is meritorious.

Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

Foreclosure may be challenged by a counterclaim when the lender (or other new owner of the property) seeks possession by a “detainer” action. It is better to file the counterclaim in writing, and the grounds for doing so are discussed below. It is preferable that you use a lawyer to assist you, but most persons do not.

There is an initial problem. A statute says: “The estate, or merits of the title, shall not be inquired into” in a detainer action. Lenders may assert that a wrongful foreclosure may not be challenged even when the parties are before the court on the issue of possession, the right to possession is necessarily founded on ownership, and ownership depends on the lawfulness of the foreclosure. In our view, the statute disallows only attacks upon title based on transactions prior to the creation of the deed of trust. We also believe that the statute is inapplicable to counterclaims seeking to set aside a foreclosure, even if it bars defenses to the detainer action.

Not every new owner is successful in obtaining possession. It may overlook the proof that is necessary to show that it the foreclosure was conducted properly and that it was entitled to foreclose – things like affidavits or testimony showing that you did not make timely payments. You may and should contest every assertion made by the new owner, even if you do not have a lawyer. The new owner has the burden of proof. If it fails to meet that burden, the judge may conclude that you are entitled to remain in possession even though you no longer own the home.

On the other hand, if the new owner is successful in the detainer action, it is entitled not only to possession but also to the rental value of the property from the date of foreclosure until the date of removal. You have only ten days for an appeal to Circuit

Court and must furnish a bond. The amount of it can be prohibitive: a “sufficient amount to cover, besides costs and damages, the value of the rent of the premises during the litigation.” Even the furnishing of an affidavit of indigency may be insufficient to retain possession during an appeal.

 

Filing Bankruptcy after Foreclosure

It is possible to set aside the foreclosure through the bankruptcy process. The grounds that may be asserted are discussed below.

There is some good news even if you lose the challenge; bankruptcy usually discharges all or part of a deficiency judgment against you for any amount still due after the foreclosure occurs.

Procedural Grounds for Challenging the Foreclosure

• Failure to Give Personal Notice. No personal notice to a borrower is required by statute. However, we believe that federal and state constitutions require personal notice to each borrower, either by summons or by certified mail that is actually received, and we are litigating cases so as to establish this principle.

• Insufficient Notice by Newspaper Publication or Posting in Public Places. Under Nevada statutes, advertisement of a foreclosure sale must be made three different times in “some” newspaper “published” in the “county where the sale is to be made.” Only 20 days’ notice is required, and the use of publications read almost exclusively by lenders and lawyers is permitted. Both the shortness of the time and the use of obscure newspapers seem vulnerable to constitutional objection. In addition, some counties have no eligible newspapers. In this case, written notice may then be posted in five “of the most public places in the county.” There is no guidance about what such places are or how they are to be determined. This is too vague a standard to pass constitutional muster.

• Failure to Give Notice Required by the Deed of Trust. Many deeds of trust require notice of foreclosure by certified mail, or at least by mail, in addition to notice by newspaper publication. Many also require notice – before foreclosure is sought — that the entire sum has been declared to be due because of a late payment or other default.

• No Meaningful Opportunity to Dispute the Foreclosure. This too is a constitutional challenge to Tennessee’s foreclosure process. It is based on the notion that making you find a lawyer and file a lawsuit in 15 days, assume a high burden of proof, and furnish a bond are unfair hurdles imposed on you.

• Defects in the Foreclosure Sale. Nevada judges have said that the foreclosure must occur in the county in which the property is located; it must take place at an accessible location; and a lender may not use a purely technical default as a basis for foreclosure. However, when the lender demands the full amount of the debt, they have refused to let the borrower cure the delinquency by paying the disputed amount before the foreclosure occurs. They also have ruled that there is no minimum price that must be paid and have allowed the lender to recover a deficiency judgment if the amount received in the sale is less than the amount owed. They have yet to decide whether the combination of a shockingly low price and another procedural defect are sufficient to disallow the foreclosure.

Substantive Grounds for Challenging the Foreclosure

The following claims and defenses are among those that may be raised so as to defeat a foreclosure altogether or reduce the amount of any deficiency:

• Estoppel: Late Payments Were Accepted on Other Occasions. This suggests that the lender waived the right to refuse late payments and was estopped from foreclosing.

• Refusal: The Lender Refused to Supply a Pay-Off Amount or Accept Full Payment so Foreclosure Could Be Avoided. Despite unfavorable precedent, this could be a viable ground.

• Military Service: A Borrower was in Military Service at the Time of the Foreclosure.

 

• The Loan was Unconscionabl:. That is, the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.

• Unfair and Deceptive Practices (UDAP): The Making of the Loan, or the Servicing of It,  was Riddled with Unfair and Deceptive Practices that Violated the Nevada Consumer          Protection Act.

• Unauthorized Fees: The Servicer Collected Unauthorized Fees for the Escrow Account, or  as Late Charges, or as Attorney Fees during the Foreclosure Process.

• Signatures: One Spouse Was Required to Sign the Mortgage Note even though the Credit of the Other Spouse was Sufficient.

• Capacities: One or More Borrowers Lacked the Mental or Physical Capacity to Borrow.

• YSP: (Yield Spread Premium): The Mortgage Broker Was Paid an Unlawful Sum by the     Lender.

• Fiduciary Responsibilities: The Lender Violated a Relationship of Trust with the Borrower  that Developed in the Lending Process.

• Fraud or Misrepresentation: There Was Fraud or Misrepresentation by the Lender in the  Making of the Loan.

The Five Steps to a Successful Short Sale

Regardless of whether you are a home owner attempting to get out from under a crushing mortgage payment, or a Realtor attempting to assist that home owner, you’ll need to understand all the steps necessary to get a short sale accomplished.

The short sale process can be long and complicated. The following steps are the most common steps required by most lenders to facilitate a short sale. The length of time to obtain an approval on a short sale request has risen significantly over the past twelve months. Some lenders are actively telling us that they need ninety days to review a short sale request.

One of the challenges of putting a short sale together, whether you are a property owner or a Realtor, is that many buyers are unwilling to wait sixty or ninety days to find out whether or not they’ve been able to purchase a home. There are many properties on the market for sale for a buyer to choose from without having to wait, so we have to entice a buyer to hang in on the transaction.

An additional complication occurs when the home owner has more than one mortgage against the property. There may be a second mortgage that the home owner took out at the time of purchase, or there may be a home equity loan or line of credit the owner used to make some improvement, or any other lien against the property.

Requesting a short sale, in a nut shell, is finding a buyer, negotiating an offer on the home, contacting the lender, obtaining all the documents the lender requires for approval, and then staying in contact with the lender until they approve, deny or counter your proposal.

As I stress in every article I write about short sales, have an expert assist you with this process. Seek the advice of an attorney, Realtor, accountant and any other professional you might require to insure the process is done correctly, and to insure you’re making the appropriate decision for your situation.

Step 1: Contact Your Lender for Information

Most lenders will not approve a short sale until there is an actual offer to negotiate. Banks and mortgage services are typically understaffed and very busy trying to work out situations with other clients who already have offers on their properties. They don’t have the time and resources to analyze every possibility.

However, since short sale approvals are taking considerable periods of time, it makes sense to find out who you need to speak with and what the lender requires the owner or Realtor to supply. In most cases, the lender has a “short sale” package that includes a list of all the forms the lender requires.

Step 2: Market Your Property and Find a Buyer

Marketing a property that requires a short sale may also be a challenge for several reasons. First, you must notify any potential buyers that any offer must be approved by your lender. This will scare some buyers away from your home because they don’t want to wait for someone else to approve the sale. This will attract some investors who believe they can “steal” the home, because they’ve seen on late night television that banks will accept almost any offer. This is simply not true. Although they may get a very good price, they are not likely to “steal” the home in the current environment.

The components of marketing any property successfully include pricing, staging and marketing. Staging is simply presenting your property in the best possible light in order to attract buyers to offer on your property rather than competing properties. Pricing entails carefully selecting the correct asking price in order to attract potential buyers. There are methods to selecting correct price positions based on recent sales and competing properties for sale.

Step 3: Negotiating an Agreement

The typical home requiring a short sale sells for a bit less than other properties. The primary reason for this anomaly is that the buyer must have a reason to go through the pain of purchasing a home through a short sale. Historically, short sale properties sold to investors because they were the few with the fortitude to wait weeks to months to find out whether or not the sale would actually go through.

Imagine the stress of moving to a new home and perhaps a new school district. Consider the stress on your family. Now add to that stress the idea that unlike most real estate transactions, where a buyer knows within a day or two whether or not the owner will accept the offer, the buyer may have to wait several months for an answer. Worse, if the lender accepts the buyers offer, the buyer needs to be prepared to settle and move quickly.

Most buyers who are selling another home need to plan their move very carefully. They can’t rely on the hope that this transaction will settle. They need to be out of their home by a certain date and need a place to move. If they have a sixty day window to move from their home and they won’t find out a response about the short sale from the lender for forty-five days, that gives them little or no time to find another home should this transaction fall through.

Because short sale transactions are typically limited to investors and those who do not “have” to move by a certain date, the pool of potential buyers is smaller than for that of other homes. Enticing buyers to purchase a short sale home over one that doesn’t have the same challenges often requires some consideration in price.

If you’re an owner is this situation, you may be offended at selling your property slightly below market, but please consider that the lender won’t allow you to receive any proceeds anyway, so you’re not taking that direct loss.

An added complication is that many of the owners of homes requiring a short sale are in default on their mortgage or at risk of default. That means that the owner may have to get the home sold more quickly than the typical home in the area. If the Sheriff is locking the doors and auctioning the home in ninety days and the typical market time in a slow market in your area is six months, you need to be priced below the market in order to attract buyers to your property first.

Step 4: Put Together a Short Sale Package for Your Lender

Hopefully, by the time you receive an offer on your property, you’ll already have the full short sale package and you’ll have started filling it out. It is imperative to get this package to the lender as quickly as possible and then to follow up with the lender to make sure they received it and that they are processing it.

Whether you are the home owner, negotiating with the lender directly, or a Realtor or attorney attempting to work on behalf of the home owner, there is a lot of information that needs to be provided to the lender. Some of the information will have to be filled out by the home owner, because it directly involves the home owner’s financial situation. Some of the forms are better prepared by a Realtor, title insurance agent or attorney.

Although every lender is slightly different, the typical documents required in a short sale package include:

1. A Cover Letter

2. An authorization for the Realtor or attorney to speak with the lender

3. Seller’s Hardship Letter

4. Hardship Documentation – Copies of documentation related to owner’s hardship

5. Seller’s Financial Statement or Income, Expense and Asset Worksheet

6. W-2 forms for past two years

7. Two months pay stubs

8. Two to three months bank statements

9. Repair estimate for any necessary repairs to property

10. Agreement of Sale or Contract to purchase the property

11. Realtor’s competitive market analysis

12. Photos of the home (interior and exterior)

13. Seller Net Sheet

14. Payoff statements from any other lenders or liens against the property

15. Preliminary HUD 1 settlement sheet

Other forms that the lender may ask for include:

1. Title search of the property

2. Special forms

Step 5: Start Calling the Lender!

Remember that there are many people in the same situation across the nation. Lenders are swamped with phone calls and packages. When you complete the package, call and email the lender to determine the best method to get the package to the lender. My suggestion is to send it to them in two forms.

If the lender tells you they’d like the physical package by mail, then I would express the package in order to insure the package gets to the lender quickly and in order to insure it is delivered and can be tracked by who signed for it. I would additionally scan the entire package and email it to the same person to whom you expressed the package.

My goal is to insure they have the package and can begin working on it. If the lender asks the information to be faxed, which some are now doing, I would again both fax it and email it.

Expect a Counter Proposal

Hopefully the lender will simply accept the short sale proposal as written and allow the sale to be consummated. Don’t be surprised if the lender refuses the initial offer and makes a counter proposal. Should this happen, you may have to go back to the buyer and ask for more money in order to settle the transaction.

If you are a Realtor, you should be preparing your buyers to understand that this is a negotiation. The lender may accept the deal, or may counter.

Getting to Settlement

As with any transaction, title insurance must be ordered and settlement must be scheduled. In instances where an owner may be behind on their mortgage or may be considering a short sale, a wise move for either the Realtor or home owner would be to contact an attorney, title agent or escrow company to run a preliminary title search of the property. Make sure there are no other liens against the property.

Once a lender agrees to accept a short payoff, the owner needs to be ready to move quickly to complete the transaction.

Loren Keim is the author of several books including “Short Sales: Step by Step” and “How to Sell Your Home in ANY Market“.

Loren Keim Author of “How to Sell Your Home in Any Market” Author of “The Fundamentals of Commercial Real Estate” Author of “Short Sales: Step by Step”

Visit Loren Keim on Amazon.com or at http://www.realestatesnextlevel.com