If you have been served with foreclosure documents, attached to the complaint is a document called a note. Also included may be various other documents and affidavits executed by banks. These documents, which claim to be executed by banks, must bear a signature from an authorized employee at that bank.

We have recently found that Margaret Dalton has executed different documents on behalf of at least ten different lenders, usually in her capacity as Vice President. This means that some of these documents may not be valid.

Please look over your foreclosure documents. If any of them were allegedly executed by Ms. Dalton, please contact an attorney.

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As it is now mid-march, it is time for the Final Four…affirmative defenses that can be raised in a Mortgage Foreclosure Defense

1. Unclean hands: Foreclosure actions in Illinois are filed with the Chancery Division of the Court in the County in which the property is located. In order to initiate a legal action in the Chancery, the parties must “be before the court with clean hands.” This essentially means that the lender cannot have engaged in any actions that have contributed to the borrower being in default.

2. Standing: a party must have standing for the Courts in Illinois to have jurisdiction over a matter involving that party. All indispensable parties must be included in the action and the Plaintiff must be in possession of the debt. If a party lacks standing, it cannot being a law suit in the Illinois courts.

3. Fraud: lenders have been known to commit fraud, in fact, in some cases homeowners have been induced to sign loan documents because of lender fraud. There are several different elements that must be examined to determine if the lender engaged in fraudulent actions. Two examples: a) was the appraisal over-inflated? b) were any fiduciary obligations violated?

4. Lack of Jurisdiction: a court lacks jurisdiction over a matter if it cannot establish that the owner of the claim or the Plaintiff is not otherwise the real party in interest and is not shown to be authorized to bring the action before the Court. This is linked to the standing affirmative defense.

There any more affirmative defenses than these four and the ones mentionned in prior posts. Again if you beleive that one of the above, or any from prior posts, applies to your loan, or you are in foreclosure proceedings or struggling to make mortgage payments, please contact an attorney for advice.

http://www.newlandlaw.com/practice-areas/bankruptcy

Here are three more affirmative defense that may arise out of violation of the Unfair and Deceptive Trade Practices Act:

1. If your lender did not provide you with statements of the escrow account associated with your loan transaction, then an affirmative defense may exist.

2. If your lender failed to pay property taxes or insurance premiums for the subject property, there may be an affirmative defense.

3. The third is sort of a catchall catergory for actions or behavior that does not fit into the other affirmative defenses under the Unfair and Deceptive Trade Practices Act. If the actions of the lender were misleading or deceiving to the consumer in a way that could be construed as unfair or deceptive, there may be an affirmative defense.

If you believe that your lender has engaged in the above, please contact an attorney (especially for the third defense listed above).

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(e) Otherwise misleading or deceiving the consumer in a way in which the practice can be construed as unfair or deceptive.

The third Act that can give rise to affirmative defenses in a mortgage foreclosure is the Unfair and Deceptive Trade Practices Act. Courts can hold lenders accountable under the Unfair and Deceptive Trade Practices Act and can also be made to pay punitive damages and attorneys’ fees.

Some examples of violations include:

1. If the lender obtained a yield spread premium (YSP) that was excessive or not properly disclosed.

2. If the lender charged excessive fees or required the payment of fees to parties not entitled to receive any fees.

As always, please contact an attorney if you believe one of the above may apply to your mortgage or loan situation.

http://www.newlandlaw.com/

Here are two (2) more affirmative defenses that come from violations of the Real Estate Settlement & Procedures Act, or RESPA for short:

1. If a lender accepted fees, kickbacks or other items of value in exchange for settlement services and or split fees and received unearned fees for services that the lender did not actually perform, there may be an affirmative defense for a RESPA violation.

2. If the lender did not provide annual escrow disclosure statements for each year of the mortgage since its inception, an affirmative defense may exist for a RESPA violation.

Please contact an attorney if you believe your lender engaged in the above actions.

http://www.newlandlaw.com/practice-areas/bankruptcy/how-forclosure-works

 The Real Estate Settlement & Procedures Act, or RESPA for short,  is another possible source of affirmative defenses.  RESPA is part of the U.S. Code and can be found at 12 U.S.C. Section 2601.

 To begin:

1. An affirmative defense exists if a lender, at the time of the loan closing, charged a fee for the preparation of the truth in lending uniform settlement and escrow account statements.

2.  An affirmative defense may also exist if the lender, at the time of the loan or within three (3) days after, failed to provide a special information booklet about the loan, a mortgage servicing and disclosure statement or a good faith estimate of settlement and closing costs to the defendant.

If you believe that one of the above may apply to your loan situation please contact an attorney. More RESPA defenses to follow.

http://www.newlandlaw.com/practice-areas/bankruptcy.html

Continuing from the last post, here are 4 more affirmative defenses that can arise out of the Truth in Lending Act (TILA).

1. If the lender did not properly and accurately disclose the amount financed, there is an affimative defense that can be raised.

2. If the lender failed to clearly and accurately state the annual percentage rate, there is an affirmative defense that can be raised.

3. If the lender failed to clearly and accurately disclose the finance charges on the loan, there is an affirmative defense that can be raised.

4. If the lender failed to clearly and accurately state the total of payments due on the loan, there is an affirmative defense that can be raised.

If you believe that your lender did not do any of the above, contact an attorney.

http://www.newlandlaw.com/practice-areas/bankruptcy/foreclosure-defense

There are several affirmative defense that can be raised against a foreclosure action. One such affirmative defense that can be raised is for a violation of the Truth in Lending Act or TILA. The Truth in Lending Act is part of the United States Code: 15 U.S.C. Section 1601 et seq. as well as Regulation Z of 226 etseq.

Three of the numerous possible affirmative defenses for violations of TILA are:

1. The amount financed by the lender needs to be clearly stated and itemized in a real estate closing. Further, for consumer residential closings, banks are required to follow TILA when a consumer credit transaction involves a lien or security interest being placed in a principal dwelling or primary residence. If these requirements are not followed, the homeowner may be entitled to rescind the transaction.

2. There is an affirmative defense based on TILA if the lender fails to clearly and accurately state and disclose the number, amounts and timing of the payments scheduled to repay the loan or obligation.

3. The lender is required to deliver to the defendant or homeowner 2 copies of the notice of the right to rescind and any other related statutory disclosures. An affirmative defense may exist if the lender failed to do so.

If you feel as though your lender may have violated one of the above or are interested in a review of your case to see if you may have one of the above defenses, please contact an attorney.

http://www.newlandlaw.com/practice-areas/bankruptcy

Mortgage Foreclosure is a complex process that involves many different aspects and elements. Consequently, foreclosure defense is an area of law that encompasses a variety of legal issues. There are several different workout options that banks, lenders and borrowers must be aware of and consider. Sometimes lenders will offer a mortgage loan forbearance to a homeowner who is experiencing a temporary or short-term hardship.

Essentially, a mortgage forbearance is designed to allow a homeowner who has fallen behind on mortgage loan payments to become current on those payments over a condensed period of time. With a forebearance agreement, the lender basically gives the homeowner an extension, typically 6 months, to bring their payments current.

Sometimes the homeowner is charged for the delinquent amount in equal monthly installments over the forbearance period but some lenders will require the borrower pay part or all of the delinquency upfront. In some situations the lender will agree to a temporary suspension or reduction of mortgage payments. If a lender is willing to agree to reduce or suspend mortgage payments, the unpaid payments will be added to the principal of the loan and will be due when the loan matures. Forbearance agreements are negotiated between the lender and the borrower.

If you believe that Mortgage Loan Forbearance would improve your finacial situation or help make your mortgage affordable, please consult an attorney.

http://www.newlandlaw.com/practice-areas/bankruptcy/foreclosure-defense

In some situations bankruptcy and foreclosure defense can be used together to create the best option for borrowers. There several reasons why the a one-two punch works well. For example, regardless of whether the mortgage is for a primary residence or an investment property, the filing of a chapter 13 bankruptcy will stop foreclosure proceedings. Also a chapter 13 bankruptcy can allow a borrower to pay their monthly mortgage payment and repay the arrearages over either a 3 or 5 year plan. A chapter 13 bankruptcy can also be used to discharge any unsecured debt and can help obtain a loan modification. If you believe that a chapter 13 bankruptcy may be a viable option, you should contact an attorney that handles bankruptcy.

http://www.newlandlaw.com/practice-areas/bankruptcy