Foreclosure and Loan Modification Blog

If you're concerned about your mortgage, you may have done a web search for MERS and found that the top results are for Middle East Respiratory Syndrome. That MERS probably isn't worth worrying about if you don't live in the Middle East. But the other MERS, the Mortgage Electronic Registration System, is an important part of the problems surrounding fraudulent foreclosures, robo-signing, and the housing crisis.

The Mortgage Electronic Registration System is an entity created by the real estate financing industry to allow them to transfer mortgages notes privately, avoid paying local registration fees, and allow a market in mortgages to operate effectively. With MERS, the mortgage notes are stored in a privately-held electronic database, not on paper in a public office. Every time a mortgage is bought and sold, MERS makes an electronic record of the transaction. No matter who really owns the note, MERS remains the “legal assignee."

Believe it, or not, your mortgage lender is interested in the hardships you've endured that have led you to seek better terms on your mortgage loan. In fact, if you are facing foreclosure and looking for a loan modification, a letter explaining the hardships you've experienced is required.

Times are tough. The effects of the recession and housing crisis have left you in a less-than-ideal financial situation, and now you're having trouble making your mortgage payments. You may be thinking about trying to get a loan modification to lower your interest rate, or you may be worried that a foreclosure is in your future. You know that if a loan modification is successful, your monthly payments could be reduced to a more manageable level. You also know that your chances of getting a loan modification approved without an attorney are slim, but you don't know if you can afford an attorney.

Alternatively, you may think the result is a forgone conclusion, and that there is no point in paying an attorney to tell you what you already know, that you're going to lose your home.

The late 2000s were an interesting time in America. Esoteric terms, like subprime mortgage-backed securities, credit default swaps, and collateralized debt obligations, entered our vocabulary. A nationwide banking crisis and recession caused millions to lose their jobs and value in their homes and investments. Everyday Americans became aware that there was a housing bubble and, like all bubbles, it was bursting. It appeared that fraud had occurred at large banks, but individual homeowners had to pay the price.

Editor's note: This article was originally published March 2013, and has been updated in August 2015.

So you've recently had your loan modification denied and can't figure out why?

You’ve handled tax forms; you’ve filled out car applications, job applications, and credit card applications. And a loan modification is just another application. Are you thinking to yourself: How hard could it be? Unfortunately, a loan modification might be the hardest thing to get approved without the help of an attorney.

Ask yourself this question: Do you know your DTI “debt to income” ratios? Your Net Present Value (NPV) and how to structure it?

What about organizing and keeping track of all of your final loan modification papers to ensure that nothing is left out?

Disclaimer: These results should not be taken as a guarantee, as each case is unique. We have helped over 5,000 homeowners, here is one of their stories.

In March 2015, we were retained to represent a Florida homeowner who was being sued by Dyck-O'neal to collect a post-foreclosure deficiency in the amount of $34,078.93 plus interest, costs, and attorney's fees. We won his case, and he owed nothing.

Things always change, they never stay the same, that's life. Sometimes we are prepared for them and sometimes they are unexpected. What happens when the unexpected is a hardship like illness or suddenly finding yourself without gainful employment. A variety of circumstances can crop up that make it difficult for you to keep up with your mortgage payments. While foreclosures and short sales are options, the premier option for struggling homeowners who want to keep their home are loan modifications. Loan modifications are a change in one or more of the terms of the original loan.

You’ve been served and you weren’t playing basketball. If you’re a couple months behind in your mortgage, you probably knew it was coming. You asked for more time to pay the back mortgage payments. Instead, your lender starts threatening you with the F-word. You have two options when facing foreclosure: let your lender win or hire a foreclosure defense attorney and fight.

The Judicial Foreclosure Process

Whether you live in New York, Illinois, Florida or New Jersey, foreclosures are judicial, which means the lender must file a lawsuit in state court. The court allows a lender to start the foreclosure process after you miss three payments. However, most lenders wait for you to become more than three months behind. How nice of your lender, right?

You are an attorney or you currently work or have worked for a bank and know their guidelines. You already know how many documents will you need to submit to your bank for a loan modification. **Free Amerihope Alliance Legal Services Document Checklist**

You know the general foreclosure laws and procedures in your state. For example in Florida, foreclosures are judicial, which means the lender must file a lawsuit in state court. The lender starts the foreclosure by filing a complaint with the court and having it served to the borrower, along with a summons. If you lose the case your house will be sold to satisfy the debt.

You don't need a foreclosure attorney to prove that the foreclosing party doesn't own your loan. In other words you know that your loan was bundled and securitized. Which means that in a process called securitization, your loan and other loans (includes both the promissory notes and the mortgages) with similar qualities are pooled, and then sold in the secondary market, often to a trust. Basically, securitization takes individual mortgage loans, bundles them into a package, and turns them into marketable securities (called “mortgage-backed securities”) that can be bought and sold. With that being said you believe you have a defense based on the fact that the foreclosing party can't prove that it owns your loan.

If you are struggling to pay your mortgage, it's encouraged that you speak with an experienced and knowledgeable foreclosure defense attorney who can properly inform you of the best solutions for your specific situation. Not to mention that on average, a defended foreclosure usually takes anywhere from one to two years or longer.

Each foreclosure case is different and has complicated nuances that can ultimately make or break the case. For example if you have been served with a foreclosure lawsuit in Florida and New York you have 20 days to file a proper legal response in court. In Illinois, you have 30 days to reply. In New Jersey, you have 35 days. In your reply you can:

• Accept the Claim -OR-
• Dispute the Claim – Perhaps your loan servicer didn't follow proper foreclosure procedures or the foreclosing party can’t prove it owns your loan. Maybe your loan servicer made a serious error with your account such as misapplying funds, failing to credit payments to the account, or charging unreasonable and non-allowable fees. Or you’re in the military and as an active military service-member you have some special protections against foreclosure and have certain rights under the Service-members Civil Relief Act (SCRA). -OR-
• Claim Affirmative Defenses – Which means that without denying responsibility, you may claim that the foreclosing bank had contributing negligence or perhaps there is an expiration of the Statute of Limitations.

Failure to file a legally satisfactory Answer could result in default being entered against you and not being able to fight the foreclosure.