Homeowners and foreclosure defense lawyers have been increasingly successful in stopping foreclosures and establishing equitable solutions for keeping people in their homes under reasonable terms. From Truth In Lending enforcements to mortgage transparency rulings, the trend is clear: homeowners who fight a wrongful foreclosure can win.
We stay on top of all foreclosure defense strategies at our Massachusetts bankruptcy and foreclosure defense firm. We’re happy to provide the following information in hopes it may be useful to you. Just One Caveat: Defending against a foreclosure is not a Do-It-Yourself endeavor. You need a licensed Massachusetts attorney who is an experienced defense litigator on your side.
6 Foreclosure Defenses for Massachusetts Homeowners
Unauthorized Mortgage or “S Petition”
Under Massachusetts G. L. 185 § 67 regarding mortgages, homeowners can register their property with the county. This registration continues throughout the existence of the land. Any subsequent mortgages on the land and property must be duly listed within the same record to be valid. Our foreclosure defense lawyer will review the land records to see if the foreclosing party is acting upon a registered mortgage. If not, you can challenge the foreclosure sale on this defense. Typically, these challenges must be done in defense of the automatic stay granted through bankruptcy.
BK Automatic Stay
A properly filed bankruptcy petition will immediately stay (“stop”) a foreclosure sale and all adverse actions by lenders. If you wish to keep your home, a Chapter 13 petition can help stop foreclosure, improve your mortgage terms, and even protect your interests while bringing adversary proceedings against the lender. Chapter 13 is a very powerful legal tool that, unfortunately, many homeowners never fully explore. Talk with us today to learn what Ch. 13 can do for you.
Invoking Your Civil Rights
Certain homeowners are protected from foreclosure under federal and Massachusetts civil rights laws. The Servicemember Civil Relief Act prohibits foreclosure actions while a mortgagor is away on active military duty and for 3 months after their return home.
If the terms of your mortgage were so unfair as to ‘shock the senses’ of any reasonable person, you may have a winning defense against the foreclosing lender. A Massachusetts land defense lawyer can argue for a dismissal based upon unfair mortgage issues.
Chapter 7 Bankruptcy
Chapter 7 is a liquidation bankruptcy that wipes away your debts in exchange for selling off all unprotected assets. Your home could qualify as a protected asset during a Chapter 7. If not, you can still utilize a BK 7 filing to immediately stop a foreclosure. You can live in the home without making mortgage payments while the bankruptcy finalizes and use this savings to relocate. Some homeowners have found that mortgage holders suddenly become eager to renegotiate more favorable terms if the filer agrees to reaffirm the mortgage. However, this strategy is risky if your goal is to actually keep your home. Oberhauser Law can work with you to find every solid opportunity to remain in your home long-term.
Unfair / Deceptive Mortgage Servicing
While not directly a foreclosure defense, this strategy can allow you to file suit for damages against a mortgage company that has mishandled your mortgage payments, statements and escrow account. You are entitled to send a “qualified written request” specifically demanding information regarding your mortgage. If the servicer/lender does not adequately respond within 30 days, your lawyer can file a claim in civil court for damages.
Federal lending laws may also provide remedies. For example, your foreclosure defense attorney can review all of your mortgage documents to see if violations occurred through the RESPA (Homeowner’s bill of rights) or Truth in Lending Act.
Declaring your home as a principal residence under the Homestead Protection Act with the Registry of Deeds in your county is a great first step for homeowners who haven’t already done so. The Homestead Act increases your equitable rights to $500,000 and can even be declared by a trust.
Massachusetts property owners have more avenues for stopping a foreclosure, saving their homes or obtaining monetary remedies than in recent times.
If you need a strong advocate with court experience to fight against foreclosure, we’re ready to stand up for you. Call Oberhauser Law today for a free foreclosure defense consultation: 978-452-1116.