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366 Kinderkamack Road
Westwood, NJ 07675
Phone: 201-664-8855
Fax: 201-666-8589
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Mortgage Foreclosure Defense
Homeowners facing foreclosure need to educate themselves in
order to put up the best defense available to them. The
following is provided for informational
purposes only. Everyone in foreclosure
should hire an attorney to represent them in the proceeding.
What is a mortgage?
A mortgage is an interest in real property (your home) that
a homeowner gives to a lender as security for a loan.When
you go to the bank to get a loan for
your house, you give the bank a mortgage, or an interest in your
property, that
they keep as collateral in case you are unable to pay the loan back.
If you default on the loan, the bank may
force the sale of the home via a foreclosure action in order to recover
the interest and principal remaining due on the loan.
What is foreclosure?
Foreclosure is a process by which the mortgagor's interest
(the homeowner's) in the property is terminated.The
mortgagee, or bank in most cases, applies
to the court for a judicial sale and the property is sold to satisfy
the loan.
What rights do I have in foreclosure?
This is the 64 thousand dollar question for homeowners.The
answer is as follows: you have the right
to force the bank to prove that they have the right to sell your home
out from under you.This may seem like a simple
question and an overly simple answer; however, asking the bank to prove
that they can sell your home has the potential to create an extraordinarily
complicated legal battle that homeowners can leverage to their benefit.
Why should I fight the foreclosure if I owe the money? What do I have to gain?
Many homeowners think that just because they took out a loan
and gave a mortgage, that is the end of the analysis.They
feel that "I borrowed the money, so they
can take my house." There is much more
to the situation than this.What most people don't know is that there
was a systematic and broad based fraud committed against the homeowners
by mortgage brokers and lenders alike. In
many cases, lenders authorized illegal
fees on behalf of brokers. In other cases, lenders encouraged brokers
to falsify documents and otherwise put homeowners into loan products
that were entirely unsuitable for them. The
existence of any of these circumstances in conjunction with your loan
may dramatically change your foreclosure
case.
The consumer credit laws are extraordinarily strong in the context of
refinancing transactions.The
Truth in Lending Act (15 USC § 1601, et
seq.)
the Real Estate Settlement Procedures Act (12 U.S.C § 2601 et
seq.), The New Jersey Fair
Foreclosure
Act, and the New Jersey Consumer Fraud Act all provide strict rules and
powerful penalties for lenders who violate these laws.
By pressing your rights against the bank, it may be possible
for you to recapture equity in your home.If
your lender violated the law when closing your transaction, you may
have the right to rescind the transaction.If
you are able to rescind, the bank will be forced to tear up the
mortgage and the bank will have to sue you outside of foreclosure to
recover the loan proceeds.In some cases, if the
banks violations were egregious enough, the court will tear up the note
as well as the mortgage. Although this is an
extraordinary remedy, it has happened in at least one Federal District
Court case in New Jersey.Otherwise, the court
may award damages to you that may be used as a set-off against the
amount of money you owe on the note. Last, and
certainly not least, if you are able to prevail on a counterclaim
against your lender, the court may require the lender to pay your attorney's fees.
Depending on the violations present in your closing, you may
be able to secure tremendous leverage against your lender that you can
use to your benefit to negotiate a new loan with the lender. Therefore,
it is of paramount importance that
every homeowner facing foreclosure investigates their loan closing to
determine if their rights were violated.If
you are victorious, you may be able to prevent the foreclosure altogether.
So what should I do?
Contact an attorney and investigate your loan! The
lawyers at Denbeaux & Denbeaux stand
ready to act on your behalf to keep you in your house as long as
possible and fight the fraud committed by lenders and brokers.
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NEWS
ALERTS
We are currently investigating unconscionable closing practices by lenders throughout New Jersey.
If you are in foreclosure, please contact one of our attorneys to see whether you have the right to halt the proceeding.
We are particularly interested in hearing from you if your loan was placed with or is presently owned by:
- Wachovia
- Countrywide
- World Savings Bank
- Wells Fargo
- Park National Bank
- Chase
- Washington Mutual
- New Century
MORTGAGE
FORECLOSURE DEFENSE
MORTGAGE MODIFICATION |
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