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In the foreclosure process, there are usually going to be a number of documents that will be received by the borrower. These documents have a certain relevance to them, because they can often provide foreclosure defenses for the defaulting borrower. The various documents that will be seen are: - Intent to Foreclose: This is the first document that a borrower will receive. It is usually received about the time that the borrower becomes 3 months late on its mortgage. It is sent by the Servicer and is letting the borrower know that they must come up with the money to pay all back due payments, or foreclosure will begin in 30 days.
- The Notice of Default: This is the official notice that you are in default and that foreclosure proceedings have begun. It advises you of the approximate amount due and who to contact for payoff amounts or reinstatement amounts. This document must follow a specific format to be valid. It must contain certain required information, and it must be executed in a specific manner.
- Verification of Debt: This document is mandated by the Fair Debt Collection Practice Act. It requires that the lender verify the debt and name the owner of the debt. This document often has the servicer instead of the true owner of the debt named.
- Substitution of Trustee: This document replaces the original Trustee named on the Deed of Trust with a Trustee specializing in foreclosing. Often, it can have procedural erros that could render the foreclosure unlawful. Approximately 30% of the Substitutions have this defect. Attorneys have had success unwinding Trustee Sales with this defense.
- Assignment of Beneficiary: The Assignment of Beneficiary tracks the Chain of Title for the Note. It can have procedural errors in regard to the foreclosure process that may render the foreclosure unlawful. Some attorneys have had good success using this argument.
- Notice of Trustee Sale: The final step in the foreclosure process, this document reveals the date, time and location of the Trustee Sale. LFI has found that with certain Trustee's, it does have statute violations that may potentially render the Notice unlawful. Attorneys and LFI are awaiting results on this defense.
There is much to the actual regulatory foreclosure process that must be carefully examined by competent personnel. It could be the weakest link in the chain for lenders attempting to foreclose. Unfortunately, too few people know what to look for and that plays into the hands of the lenders and servicers. |