By Richard Kessler

Documentary Clearing House and Associates (“DCH”) has pioneered a new strategy for attorneys who defend foreclosure cases. To date, DCH has produced three motions to assist attorneys implement the new strategy.

Viewed from afar, the short, unpleasant history of foreclosure during the last three years presents a sorry spectacle. Far too many judges in foreclosure proceedings have stopped behaving like judges and instead become advocates for the foreclosure mills. The parties that foreclose continue to ignore and avoid alternate dispute resolutions.

The government’s efforts to stem the tide of foreclosure and encourage alternate dispute resolutions have been feckless and dissipated. Most people being foreclosed have not discharged their legal obligation to defend themselves. Instead, many if not most foreclosure cases go to summary judgment uncontested. The resulting assault upon American homeownership has been systemic and overwhelming.

Many homeowners in foreclosure believe that legal representation is unaffordable. Unable to make monthly mortgage payments, they conclude that they have no means to hire a lawyer. The public sector which defends people who cannot afford a lawyer has been unable to mount an effective counter- response to foreclosure.

Too much time has been spent on tactics; too little time has been spent on strategy. Foreclosure defense is preoccupied with finding omissions, defects and deficiencies. The tactics tend to show that a rule has been violated.

Too many courts are inclined to forgive and forget. The courts dream up notions such as finding the non-compliance merely “technical” or that the foreclosure is within the “four corners of the loan agreement”.

DCH is calling for a change in strategy. What is needed is a new strategy which is effective and affordable. DCH’s new motion addresses both these requirements.

1. Employ generic defenses to make defense against foreclosure affordable to most of those facing foreclosure.

Instead of a case specific defense custom designed to meet the unique questions of fact and law unique to each case, a defense which most clients confronted by foreclosure can ill afford, DCH is providing pleadings and discovery where one size fits all. DCH is creating generic defenses. The foreclosure mills have declared war on defaulting mortgagors. The cost effective response to litigation filed by the foreclosure mills is counter-measures from a defense mill. DCH provides the bullets for attorneys to fire. By putting foreclosure one the assembly line, every client can afford to retain his or her own hired gun in a foreclosure battle..

There is a conundrum caused by the litigation protocol used in defense litigation to represent clients in foreclosure: It is effective and counterproductive at the same time. Lawyers are taught to approach each case as unique and upon its own merits. We are also taught to employ tactics to complicate the other side’s case and discover damaging information. Lawyers also try to use discovery to find errors and omissions in the other side’s case. A proficient litigator wages war upon the other side with motions, depositions, production of documents, interrogatories and requests for admissions and stipulations. Attorneys are taught that litigation cases are won and lost in pretrial preparation. Many believe that a successful outcome is predicated upon pre-trial strategy. Such tactics are p[art of the litigation protocol and have over time proven themselves to be effective and productive.

The problem lies neither with the tactics nor the strategy. Lawyers approach a litigation case like a tailor making a custom suit. Each case is entitled to receive its unique defense to custom fit the facts and law applicable to the case. The problem when it comes to foreclosure cases is the client. A client who cannot make mortgage payment can ill afford a custom suit. One reason so many cases go to uncontested adjudication is that the client has no way to pay for a custom tailored defense. Three of the four major areas for defense- a defective or fraudulent note, the provenance of the note and consumer protection and consumer fraud statutes and regulations- require an extensive proof of facts. No matter how meritorious the defense, it is not serviceable if a client cannot financially afford it.

Too many foreclosure defendants find themselves between a rock and a hard place. They lack the money required for a custom tailored defense; they cannot obtain legal services pro bono publico; and there are no neighborhood services available for which the defendants qualify financially. Many of these defendants wind up having to appear pro se and lack the ability to do so. A trained attorney litigating against a lay person is an unfair contest for which the lay person is ill equipped to succeed. For every individual who can manage competently to defend against foreclosure, there are countless scores who cannot. Compelled by foreclosure to defend themselves and unable to do so, these homeowners are buried by the judicial system without having a day in court before they lose their homes.

Under these circumstances, lawyers must begin to consider a different strategy. Maybe if a client cannot afford a custom suit, it behooves counsel to take a suit off the rack. To accommodate a wider base of foreclosure defense cases, it is necessary to develop and implement generic strategies where one size fits all. Such strategies would not be dependent upon the facts, circumstances and laws unique to each case. Instead, such a strategy would be dependent upon facts, circumstances and laws which a large number of foreclosure cases have in common.

In this connection, DCH has concluded that the fourth area of defense, securitization, provides a uniquely fruitful field for generic defenses. Factors common to and endemic in all securitizations of mortgages are vulnerable to attack in cases after case where a mortgage has been securitized. A one size fits all defense tactic which is replicable in case after case becomes exponentially more cost effective than a client specific, one time use defense.

The foreclosure mills have stolen a march on the mortgage defense bar. The client base of the foreclosure mill is determined to foreclose at the lowest possible expense. Accordingly they have provided a large number of cases at a fixed rate of compensation per case. This has caused the foreclosure mills to put foreclosure on the assembly line. The tendency to file the same pleadings in case after case irrespective of the facts of the case has led to untold abuses of foreclosure. Nonetheless, by treating foreclosure pleadings as scalable, the foreclosure mills achieve the economies of scale. This serves to reduce the average cost per case.

Defense counsel can succeed by following the example of the foreclosure mills. Instead of custom designed defense, counsel must substitute off the rack, scalable defenses. Such a change in strategy opens up a new and different set of tactics. To date, DCH has produced two motions attacking securitization. One argues that the mortgage is unenforceable. The second argue that the mortgage note is unenforceable. Both apply to any mortgage which has been securitized. DCH has developed a third motion to use in Florida which asserts that the trust is unregistered and therefore unenforceable. All three motions are generic and are not unique to a specific case.

2. Proactively anticipate and address the concern of most judges regarding unjust enrichment if the debtor prevails in a foreclosure defense.

What the courts are saying is that foreclosure defenses as presented defend the indefensible. That a creditor should forfeit the loan because of a technical defect is an inequitable outcome. The debtor is not entitled to an unearned windfall which is precisely the result for which the defense consistently argues. So long as nullification of the debt is the outcome if defendant wins, defendants will continue to lose. Defendants will not succeed in overturning foreclosures unless and until defendants explicitly seek a remedy other than cancellation of the debt.

To succeed, a defense against foreclosure cannot be a one way ticket to a free lunch for the debtor. Most judges will not render a judgment they deem to have an inequitable outcome. Unjust enrichment of the debtor from an undeserved windfall often is used as a rationale which justifies disregarding defects in the foreclosure proceedings. Most judges believe that the debtor borrowed and received the money and should be obligated to repay the loan.

DCH’s most recent motion explicitly states that if the motion is granted, the court should use its equitable authority to declare a constructive trust or constructive mortgage and afford defendant a viable opportunity to effect an alternate dispute resolution. In short, instead of leaving the decision concerning modification at the sole discretion of the parties controlling the securitization, the court would now makes its own determination and more equitably protect the rights of all parties concerned. This affords the defense the proactive opportunity to address the issue of unjust enrichment. It also allows the court order an alternate dispute resolution where the outcome would reduce the loss inflicted upon the creditor.

The judicial choice is not limited to either conferring a windfall upon a defaulted “deadbeat” or allowing large financial institutions to flout existing laws. There is no reason that the note does not properly evidence a debt which has not been paid-even if the note holder is not evident.

Even if the note is legally unenforceable, the court may declare a constructive trust. The court can declare a constructive trust or constructive mortgage and assure payment of the trust and certificate holders. As a constructive trust or mortgage, the court may impose conditions. For example:

(a) Review foreclosure fees and charges.

(b) Consider compliance with consumer protection laws and avoidance of consumer fraud. Where damages have been suffered by the debtor, the court may allow a set-off.

(c) The Court may order mandatory mediation or arbitration.

(d) The Court may modify in any way deemed equitable and appropriate, the mortgage to enable the debtor to make timely payments and the creditor to recover payment of the debt.

The court may consider a wide range of modifications to the note to allow an alternate dispute resolution. This would go a long way to mitigating financial loss to the creditor and moving foreclosure from a first resort to a last recourse.

3. In an adversarial system the person sued is under a legal obligation to defend against the cause of action. Every person in foreclosure requires a competent legal defense; and an affordable legal defense is available.

Our adversarial system of justice legally obligates a person who is sued to appear and defend. A defendant who fails to appear and defend loses the case by default. In civil proceedings, the law provides each defendant only with the opportunity to defend, not a defense. Judges preside to hear a case and make judgment. The judge does not represent or defend the rights of the party filing suit or the defendant. It is shocking and saddening to realize how many Adult Americans do not realize and understand their legal obligation to defend when they are sued. Such ignorance is a function of an inadequate educational system and an indifferent media.

The avalanche of foreclosures resulting by adjudication in uncontested cases demonstrates how many homeowners fail to realize that they have an opportunity, duty and obligation to appear and defend against foreclosure. The message is lot that effective, affordable and realistic defense of foreclosure has the highest likelihood of achieving an alternate dispute resolution whose consequences to the debtor are significantly preferable to foreclosure.

The members of the bar who want to defend clients against foreclosure need to get out a message. Every person in foreclosure requires a competent legal defense; and an affordable legal defense is available. Most families in foreclosure believe they are helpless victims, overwhelmed by forces beyond their control. The foreclosure mills are posed to exploit this state of mind.

A different message needs to be published and widely disseminated. Most people today have learned that with the advances in modern medicine it is far better to treat a disease than succumb to it. The same principal applies to defense against foreclosure. Most people, however, are unaware that affordable “treatments” for foreclosure ailments are available.

There are many public spirited people, including members of the bar, who have selflessly given their times and work product to enable individuals to act pro se and represent themselves. In many places, people in foreclosure are invited to participate in symposia which are aimed at educating defaulting debtors regarding their rights and remedies. To the extent these programs educate the public about the choices and expectations relating to foreclosure of a home, they perform a valuable public service. The non-profit mortgage counseling conducted by HUD affiliated counselors is an excellent example of public education about debtor’s options and choices in foreclosure.

To the extent, these symposia try to empower a debtor to defend pro se against counsel from a foreclosure mill, the undertaking is an exercise in futility. The average homeowner is unable to effectively defend against a foreclosure in a judicial proceeding. Busy, overworked judges have no patience with quixotic tyros tilting against windmills.

4. Use asymmetric defense tactics to thwart foreclosure mills.

The profitability of foreclosure mill operations is a function of the number of cases resulting in uncontested foreclosure. For these operations, time is money. The less time allocated to successful adjudication of a case, given the fact that compensation is capped, the more profitable. Conversely, the more time required to prosecute a case, the less profitable it becomes. DCH’s motions to dismiss require opposing counsel to do extensive, time consuming legal research. A response will consume substantial legal resources and billable hours which are not billable.

In defending a foreclosure, every attorney should have an off the shelf, standardized discovery package. Where a mortgage is securitized, DCH is working on a discovery package of requests for production of documents, requests for admissions and interrogatories, motions to compel answers and production if required, document checklists and annotations and notes explaining why a specific document is required or question needs to be answered.

The ultimate goal is to bring down the cost of legal care, just like health care, to make it affordable to one and all.

Conclusion

DCH is respectfully calling for a change in foreclosure defense strategy by implementing the following tactics:

1. Employ generic defenses to make defense against foreclosure affordable to most of those facing foreclosure.

2. Proactively anticipate and address the concern of most judges regarding unjust enrichment if the debtor prevails in a foreclosure defense.

3. In an adversarial system the person sued is under a legal obligation to defend against the cause of action. Every person in foreclosure requires a competent legal defense; and an affordable legal defense is available.

4. Use asymmetric defense tactics to thwart foreclosure mills.

For more information contact:
Richard F. Kessler
Documentary Clearing House and Associates, LLC.
941-924-5608,
richardfkessler@verizon.net
http://www.documentaryclearinghouse.com

DCH OPENS NEW FRONTIER FOR DEFENSE OF FORECLOSURE
“The Stop Foreclosure Package.”
The Stop Foreclosure Package contains legal forms, explanations and instructions to enable the user to argue the unenforceability of the mortgage and find the evidence which supports each legal defense asserted. When a mortgage is converted into a security, fatal legal errors occur. The Stop Foreclosure Package identifies the errors and provides the tools needed to find the proof required.

The Stop Foreclosure Package enables each customer to purchase as an individual and defend like an army.
The Stop Foreclosure Package is priced as follows:
$349.00 plus tax…………….pro se for an individual for a one time use.
$599.00……………………….for a single attorney with unlimited right to reuse.
$799.00……………………….for a law firm of attorneys with unlimited right to reuse.
DCH may not represent you legally or provide legal advice. Please give us the opportunity to help you save your home and delay foreclosure by using our Stop Foreclosure Package for the price of one half month’s rent. You cannot afford to miss this opportunity to try to save your home.

Article Source: http://EzineArticles.com/?expert=Richard_Kessler
http://EzineArticles.com/?Foreclosure-Defense-Strategy—Clients-in-Search-of-a-New-Paradigm&id=3431045

By Craig Meriwether

One of the great parts of the owner finance home sale is the opportunity to work with the buyer in the case of financial problems. By creating a solution that works for both parties a home owner is more than likely to stay in the house and the loan holder will continue to receive monthly payments. If a solution cannot be created then unfortunately foreclosure might be the only option to take. This article will present a look and some of the different ways foreclosures can be handled.

In some states, the beneficiary can choose one of two methods to foreclose judicial or non-judicial. In a judicial foreclosure, the beneficiary files a lawsuit against the trustor in Superior Court to foreclose on the property. The case is then set for trial. If the court rules in favor of the beneficiary, the property will be ordered sold at a public sale. In most instances, however, it is a non-judicial foreclosure. In a non-judicial foreclosure, the court system is not involved. To foreclose non-judicially, the deed of trust or mortgage must contain a power of sale clause. The power of sale clause gives the trustee the right to begin foreclosure without going to court. To include a power of sale clause does not require a specific form or language.

If, on the other hand, the security instrument does not contain a power of sale provision, judicial foreclosure is the beneficiary’s only way to obtain the property. Most conventional deeds of trust say “with the power of sale”.

Judicial and non-judicial foreclosures differ in many ways. The foreclosure method selected by the beneficiary has significant consequences for the trustor.

Non judicial foreclosure is relatively fast, as this method does not involve the court system. In most instances, non-judicial foreclosure takes, at minimum, about four months after the trustor has failed to meet the obligation or defaulted on the loan. Judicial foreclosure, on the other hand, may take up to several years.

Non judicial foreclosure is generally less costly than judicial foreclosure. In a non-judicial foreclosure, the trustee’s and attorney’s fees are largely specified by law. In a judicial foreclosure, however, there are generally no legal limits for attorney’s fees. As a result, the trustor may be liable for significant legal expenses.

Another major difference between the two foreclosure methods is the beneficiary’s right to a deficiency judgment. A deficiency judgment is a court order stating that the trustor still owes money to the beneficiary if the proceeds from the foreclosure sale are not sufficient to pay the balance of the debt.

Some state laws do not allow a deficiency judgment in a non-judicial foreclosure on residential purchase money loans. A residential purchase money loan is one in which loan proceeds are used to purchase the property. Furthermore, state laws do not allow deficiency judgments against the residential trustor where the loan was made by the seller of the property or by a third party lender (often a financial institution) on a four-unit or less residential property that is the principal residence of the trustor. If the beneficiary judicially forecloses on a non-purchase money residential loan, a deficiency judgment may be obtained against the trustor.

Non-judicial and judicial foreclosures also differ with regard to the trustor’s right of redemption after the foreclosure sale. This is the trustor’s right to reclaim the foreclosure property. In a non-judicial foreclosure, the sale of the property at the trustee’s sale is an irrevocable final sale, and the trustor does not have the right to redeem or reclaim the property after the sale. Judicial sales, however, are subject to redemption by the trustor.

This summary of the major differences between non-judicial and judicial foreclosure shows the advantages of non-judicial foreclosure for the beneficiary. The non-judicial foreclosure is timely, economical, non subject to redemption, and may command a higher sales price. In addition, it is unlikely that the beneficiary would recover any losses through a deficiency judgment, as the trustor could not make the loan payments in the first place. Because of these advantages, beneficiaries typically prefer to foreclose non-judicially. Beneficiaries might foreclose judicially when they see an opportunity to recover any losses through a deficiency judgment.

The following two sections give detailed information on each of the foreclosure methods.

Non-Judicial Foreclosure

This section describes the major procedural requirements of non-judicial foreclosure, discusses the trustor’s reinstatement and redemption rights, reviews legal provisions for trustee’s fees and summarizes special legal provisions affecting foreclosures in many states.

Many states allow the beneficiary of a deed of trust containing the power of sale provision to foreclose non-judicially after the trustor has defaulted on one or more contractual obligations. In case of default, the beneficiary may order the trustee to initiate foreclosure.

Notice of Default

Foreclosure begins when the beneficiary notifies the trustee that the trustor has defaulted on any obligations stated in the promissory note and deed of trust. The beneficiary gives the trustee information concerning the condition of the debt such as the amount of the unpaid balance and due dates. Upon receipt of this information, the trustee prepares the Notice of Default.

The Notice of Default must be recorded in the office of the recorder of the county where the property is located. If the deed of trust encumbers property located in more than one county, the Notice of Default should be recorded in the other counties as well.

The trustee must mail a copy of the Notice of Default to the trustor and to each person requesting notice within ten days of recording the notice. The law specifies additional notification requirements under certain circumstances. The Notice of Default must be published weekly for four weeks in a newspaper or personally be served on the Trustor, if the trustor has not requested to be notified of its recordation of the notice

Trustor’s should always notify the beneficiary and the trustee of any address changes to ensure prompt receipt of any correspondence from the beneficiary or trustee.

Before January 1, 1986, the trustor and beneficiaries under subordinate deeds of trust were given three months from the recordation of the Notice of Default to cure the default. An amendment to the law extended the expiration of the reinstatement period to five business days before the scheduled trustee’s sale. If the trustee’s sale is postponed, the reinstatement period is extended to five business days before the new date of the sale.

At any time during the reinstatement period, the trustor may stop the default by paying the beneficiary all sums of money due on the loan up to that point including additional costs incurred by the beneficiary, and attorney’s or trustee’s fees as specified by law. It is not necessary to repay the entire loan balance.

After reinstatement of the loan, the foreclosure proceeding is discontinued and the trustor resumes making the regular periodic payments.

Notice of Trustee’s Sale

If three months have passed since recording the Notice of Default, and the trustor has not begun to reinstate the loan; the trustee may proceed with the foreclosure by preparing a Notice of Trustee’s Sale.

The Notice of Trustee’s Sale must be recorded in the office of the recorder of the county in which the property is located at least 14 days before the date of the sale. As with the Notice of Default, the Notice of Trustee’s Sale must be mailed to the trustor’s last address actually known to the trustee.

The Notice of Trustee’s Sale also must be published in a newspaper of general circulation in the city, judicial district or county where the property is located. The notice must be published once a week over a 20-day period before the sale.

In addition to mailing and publication, the Notice of Trustee’s Sale must be posted for at least 20 days before the sale at the following locations:

o In at least one public place in the city, judicial district, or county in which the property is to be sold; and

o In a conspicuous place on the property to be sold

Improperly broadcasting the Notice of Trustee’s Sale typically will result in the cancellation and re-notice of the sale.

As mentioned before, the trustor can cure the default during the reinstatement period that runs up to five days before the schedule sale. After the reinstatement period expires, the trustor must pay the entire indebtedness plus foreclosure costs to avoid foreclosure. This is called redemption and only can be done during the five days before the sale. The trustor’s right of redemption ends once bidding at the foreclosure sale starts.

Trustee’s Sale

The trustee or the trustee’s agent must conduct the foreclosure sale at a public auction in the county where the property is located. The sale is to the highest bidder who must pay in cash, cashiers check or cash equivalent as specified in the notice and acceptable to the trustee.

The trustee may postpone the sale at any time before it is completed. The sale may be postponed at the trustee’s discretion, upon instruction by the beneficiary, or upon a written request by the trustor who has the right to request a one-day delay to obtain sufficient cash to pay the debt or bid at the sale. The trustor’s request for postponement must include a statement identifying the source of the funds. The law allows for three postponements. After three postponements, a new notice of sale must be given, except for postponements requested by the trustor or ordered by a court.

After the sale to the highest bidder, the trustee executes and delivers a trustee’s deed to the purchaser. The trustee’s deed conveys title to the purchase free and clear. The issuance of the trustee’s deed terminates the previous trustor’s legal and equitable rights in the property. It should be noted, however, that title to the property is conveyed subject to all senior liens, including liens for property taxes and assessments.

The purchaser of the foreclosed property is entitled to take immediate possession. A trustor who refuses to vacate the property may be legally forced to do so.

Rent and Rental Income

Generally, the trustor occupying the property does not have to pay rent to the beneficiary while in default. If a deed of trust should indicate a rent liability, enforcement of it would be unlikely.

The beneficiary may have a right, however, to any rental income generated by the property during the period of default. In the absence of such a provision in the deed of trust, the beneficiary is generally not entitled to any rental income.

Deficiency Judgment

In General, the law prohibits a deficiency judgment in a non-judicial foreclosure with a power of sale provision. Even if the proceeds from the foreclosure are inadequate to repay the loan, the beneficiary has no other possibility to recover.

Trustee’s Fees

The fees a trustee is entitled to charge the beneficiary or deduct from the proceeds of the sale are prescribed by law. The trustee may charge for costs incurred in recording, mailing, publishing, and posting of Notice of Default and Notice of Trustee’s Sale; the cost of postponing the sale by request of the trustor (not to exceed $50 per postponement) and the cost of a trustee’s sale guarantee. In addition to charging for these actual costs, the law provides for a fee schedule based on the amounts of the unpaid debt.

The legal limitations for trustee’s and attorney’s fees do not apply to attorney’s fees the beneficiary is entitled to recover under special provisions of the deed of trust.

Special Legal Provisions

Special federal and state laws may affect the manner in which the foreclosure is conducted. If the loan is insured or guaranteed by the U. S. Department of Housing and urban Development (HUD! EHA) or the Veterans Administration (VA), certain procedures must be followed. In the case of a VA-guaranteed loan, the trustor may be liable for any deficiency, unless the veteran obtains a release of liability from the VA. California law does not necessarily protect the trustor from liability for a deficiency on a VA guaranteed loan. Federal laws governing the VA loan program take precedence over any conflicting California law. Trustors should contact the VA for details concerning their rights and to learn about specific requirements.

Judicial Foreclosure

Judicial Foreclosure is tried in some state Superior Courts. The beneficiary, upon default of obligation by the trustor, brings a foreclosure lawsuit against the trustor. If successful, the court will issue an order to sell the property at a public sale. The beneficiary must use judicial foreclosure if the security instrument does not contain a power of sale provision. A mortgage or deed of trust containing the power of sale provision may be foreclosed judicially if the beneficiary chooses to do so.

The decision to foreclose judicially or non-judicially is not necessarily final. The beneficiary may discontinue judicial foreclosure at any time and commence non-judicial foreclosure.

Conversely, the beneficiary may abandon non-judicial foreclosure and initiate judicial foreclosure. Beneficiaries sometimes initiate both types of foreclosure simultaneously.

Foreclosure Sale

A court-appointed commissioner or sheriff in the public place must give notice of the sale of the property for 20 days preceding in the date of the sale. This same notice must be published in a newspaper of general circulation weekly for 20 days. The notice also must be sent by certified mail to all defendants at their last known addresses.

At the foreclosure sale, the property must be sold by the auctioneer to the highest bidder who is financially qualified.

Redemption of Property

In a judicial sale, the trustor has the right to redeem or reclaim the property after the foreclosure sale. For a trustor, the right of redemption makes a judicial sale attractive. It should be remembered, however, that a judicial sale might also lead to a deficiency judgment. This possibility does not exist in a non-judicial foreclosure.

Deficiency Judgment

In a judicial foreclosure, the beneficiary has, under certain circumstances, a right to a deficiency judgment. The deficiency judgment is limited to an amount equal to either the difference between the indebtedness and the fair market value of the property, or the indebtedness and the sales price at the foreclosure sale, whichever is less.

Rent and Rental Income

The trustor occupying the disputed property does not have to pay the beneficiary rent while in default. The beneficiary may be entitled, however, to any rental income generated by the property.

After the sale, the trustor retains possession of the property and does not have to pay the beneficiary rent while in default. The beneficiary may be entitled, however, to any rental income generated by the property.

Craig Meriwether is owner of Kula Investments, a company founded you help you get top dollar for you owner financed real estate loan. [http://www.ioubuyer.com]

Article Source: http://EzineArticles.com/?expert=Craig_Meriwether
http://EzineArticles.com/?Owner-Financing—The-Foreclosure-Process&id=2140489

EnergyStar.gov –  Check Out Energy Rebates

This is a government site that offers lots of energy saving tips as well as explains what energy saving grants or credits might be available.

Here is the latest issue of my foreclosure trends newsletter.  As you can see, the trend is not our friend, in the sense that the housing market has not recovered.  Until jobs come back and people are employed and feel safe in their employment, they will tend to avoid making a committment.

ForeclosureTrends.pdf

When you buy a foreclosed with me as your agent, I will be happy to sign you up for a coupon from Lowes.   It entitles you to 10% off, up to a predetermined purchase amount.  Currently I believe it 10% off of up to a $10,000 purchase.  Of course, this amount and the coupon’s terms and conditions are subject to change by Lowes at anytime.

Besides Lowes, RE/MAX has exclusive deals with Cambria and Pods-to name just few of the suppliers we can help you save money with.  We’ve got your back.  Consider me when choosing your team.

Besides the board of realtor sites:  http://theThing.mplsrealtor.com and market data posted elsewhere at http://www.MplsRealtor.com I have a subscription to Realty Trac.  My subscription gives me additional data about foreclosures and trends within certain zip codes.  This is in addition to my daily subscription to Finance & Commerce (a business newspaper that prints all the foreclosure information as well as very timely articles regarding the business community).  If you are looking for someone who has experience and access to information about distressed sales, we need to be working together.  Whether buyer or seller-I can help you understand the market we are in and the options and opportunities available to you.  Give me call today.

These are a couple of my newsletters that have a ton of valuable information. Go check them out.

Foreclosure Market Trends Newsletter
http://www.realtytrac.com/MarketTrends/NewsLetter.aspx?guid=131bd355-1b69-4bd1-99cd-2f0c9a936810

Real Estate Cyber Space Tips
http://www.REcyber.com/cybertips/r11627

This explains what the HAFA is and how it might work for you. This might work for people that are in distress and would like to try and avoid a foreclosure. Here is a link for additional information http://www.CDPE.com/hafa I work with homeowners who need help at this difficult time-let me know what I can do for you.

By Craig Meriwether

One of the great parts of the owner finance home sale is the opportunity to work with the buyer in the case of financial problems. By creating a solution that works for both parties a home owner is more than likely to stay in the house and the loan holder will continue to receive monthly payments. If a solution cannot be created then unfortunately foreclosure might be the only option to take. This article will present a look and some of the different ways foreclosures can be handled.

In some states, the beneficiary can choose one of two methods to foreclose judicial or non-judicial. In a judicial foreclosure, the beneficiary files a lawsuit against the trustor in Superior Court to foreclose on the property. The case is then set for trial. If the court rules in favor of the beneficiary, the property will be ordered sold at a public sale. In most instances, however, it is a non-judicial foreclosure. In a non-judicial foreclosure, the court system is not involved. To foreclose non-judicially, the deed of trust or mortgage must contain a power of sale clause. The power of sale clause gives the trustee the right to begin foreclosure without going to court. To include a power of sale clause does not require a specific form or language.

If, on the other hand, the security instrument does not contain a power of sale provision, judicial foreclosure is the beneficiary’s only way to obtain the property. Most conventional deeds of trust say “with the power of sale”.

Judicial and non-judicial foreclosures differ in many ways. The foreclosure method selected by the beneficiary has significant consequences for the trustor.

Non judicial foreclosure is relatively fast, as this method does not involve the court system. In most instances, non-judicial foreclosure takes, at minimum, about four months after the trustor has failed to meet the obligation or defaulted on the loan. Judicial foreclosure, on the other hand, may take up to several years.

Non judicial foreclosure is generally less costly than judicial foreclosure. In a non-judicial foreclosure, the trustee’s and attorney’s fees are largely specified by law. In a judicial foreclosure, however, there are generally no legal limits for attorney’s fees. As a result, the trustor may be liable for significant legal expenses.

Another major difference between the two foreclosure methods is the beneficiary’s right to a deficiency judgment. A deficiency judgment is a court order stating that the trustor still owes money to the beneficiary if the proceeds from the foreclosure sale are not sufficient to pay the balance of the debt.

Some state laws do not allow a deficiency judgment in a non-judicial foreclosure on residential purchase money loans. A residential purchase money loan is one in which loan proceeds are used to purchase the property. Furthermore, state laws do not allow deficiency judgments against the residential trustor where the loan was made by the seller of the property or by a third party lender (often a financial institution) on a four-unit or less residential property that is the principal residence of the trustor. If the beneficiary judicially forecloses on a non-purchase money residential loan, a deficiency judgment may be obtained against the trustor.

Non-judicial and judicial foreclosures also differ with regard to the trustor’s right of redemption after the foreclosure sale. This is the trustor’s right to reclaim the foreclosure property. In a non-judicial foreclosure, the sale of the property at the trustee’s sale is an irrevocable final sale, and the trustor does not have the right to redeem or reclaim the property after the sale. Judicial sales, however, are subject to redemption by the trustor.

This summary of the major differences between non-judicial and judicial foreclosure shows the advantages of non-judicial foreclosure for the beneficiary. The non-judicial foreclosure is timely, economical, non subject to redemption, and may command a higher sales price. In addition, it is unlikely that the beneficiary would recover any losses through a deficiency judgment, as the trustor could not make the loan payments in the first place. Because of these advantages, beneficiaries typically prefer to foreclose non-judicially. Beneficiaries might foreclose judicially when they see an opportunity to recover any losses through a deficiency judgment.

The following two sections give detailed information on each of the foreclosure methods.

Non-Judicial Foreclosure

This section describes the major procedural requirements of non-judicial foreclosure, discusses the trustor’s reinstatement and redemption rights, reviews legal provisions for trustee’s fees and summarizes special legal provisions affecting foreclosures in many states.

Many states allow the beneficiary of a deed of trust containing the power of sale provision to foreclose non-judicially after the trustor has defaulted on one or more contractual obligations. In case of default, the beneficiary may order the trustee to initiate foreclosure.

Notice of Default

Foreclosure begins when the beneficiary notifies the trustee that the trustor has defaulted on any obligations stated in the promissory note and deed of trust. The beneficiary gives the trustee information concerning the condition of the debt such as the amount of the unpaid balance and due dates. Upon receipt of this information, the trustee prepares the Notice of Default.

The Notice of Default must be recorded in the office of the recorder of the county where the property is located. If the deed of trust encumbers property located in more than one county, the Notice of Default should be recorded in the other counties as well.

The trustee must mail a copy of the Notice of Default to the trustor and to each person requesting notice within ten days of recording the notice. The law specifies additional notification requirements under certain circumstances. The Notice of Default must be published weekly for four weeks in a newspaper or personally be served on the Trustor, if the trustor has not requested to be notified of its recordation of the notice

Trustor’s should always notify the beneficiary and the trustee of any address changes to ensure prompt receipt of any correspondence from the beneficiary or trustee.

Before January 1, 1986, the trustor and beneficiaries under subordinate deeds of trust were given three months from the recordation of the Notice of Default to cure the default. An amendment to the law extended the expiration of the reinstatement period to five business days before the scheduled trustee’s sale. If the trustee’s sale is postponed, the reinstatement period is extended to five business days before the new date of the sale.

At any time during the reinstatement period, the trustor may stop the default by paying the beneficiary all sums of money due on the loan up to that point including additional costs incurred by the beneficiary, and attorney’s or trustee’s fees as specified by law. It is not necessary to repay the entire loan balance.

After reinstatement of the loan, the foreclosure proceeding is discontinued and the trustor resumes making the regular periodic payments.

Notice of Trustee’s Sale

If three months have passed since recording the Notice of Default, and the trustor has not begun to reinstate the loan; the trustee may proceed with the foreclosure by preparing a Notice of Trustee’s Sale.

The Notice of Trustee’s Sale must be recorded in the office of the recorder of the county in which the property is located at least 14 days before the date of the sale. As with the Notice of Default, the Notice of Trustee’s Sale must be mailed to the trustor’s last address actually known to the trustee.

The Notice of Trustee’s Sale also must be published in a newspaper of general circulation in the city, judicial district or county where the property is located. The notice must be published once a week over a 20-day period before the sale.

In addition to mailing and publication, the Notice of Trustee’s Sale must be posted for at least 20 days before the sale at the following locations:

o In at least one public place in the city, judicial district, or county in which the property is to be sold; and

o In a conspicuous place on the property to be sold

Improperly broadcasting the Notice of Trustee’s Sale typically will result in the cancellation and re-notice of the sale.

As mentioned before, the trustor can cure the default during the reinstatement period that runs up to five days before the schedule sale. After the reinstatement period expires, the trustor must pay the entire indebtedness plus foreclosure costs to avoid foreclosure. This is called redemption and only can be done during the five days before the sale. The trustor’s right of redemption ends once bidding at the foreclosure sale starts.

Trustee’s Sale

The trustee or the trustee’s agent must conduct the foreclosure sale at a public auction in the county where the property is located. The sale is to the highest bidder who must pay in cash, cashiers check or cash equivalent as specified in the notice and acceptable to the trustee.

The trustee may postpone the sale at any time before it is completed. The sale may be postponed at the trustee’s discretion, upon instruction by the beneficiary, or upon a written request by the trustor who has the right to request a one-day delay to obtain sufficient cash to pay the debt or bid at the sale. The trustor’s request for postponement must include a statement identifying the source of the funds. The law allows for three postponements. After three postponements, a new notice of sale must be given, except for postponements requested by the trustor or ordered by a court.

After the sale to the highest bidder, the trustee executes and delivers a trustee’s deed to the purchaser. The trustee’s deed conveys title to the purchase free and clear. The issuance of the trustee’s deed terminates the previous trustor’s legal and equitable rights in the property. It should be noted, however, that title to the property is conveyed subject to all senior liens, including liens for property taxes and assessments.

The purchaser of the foreclosed property is entitled to take immediate possession. A trustor who refuses to vacate the property may be legally forced to do so.

Rent and Rental Income

Generally, the trustor occupying the property does not have to pay rent to the beneficiary while in default. If a deed of trust should indicate a rent liability, enforcement of it would be unlikely.

The beneficiary may have a right, however, to any rental income generated by the property during the period of default. In the absence of such a provision in the deed of trust, the beneficiary is generally not entitled to any rental income.

Deficiency Judgment

In General, the law prohibits a deficiency judgment in a non-judicial foreclosure with a power of sale provision. Even if the proceeds from the foreclosure are inadequate to repay the loan, the beneficiary has no other possibility to recover.

Trustee’s Fees

The fees a trustee is entitled to charge the beneficiary or deduct from the proceeds of the sale are prescribed by law. The trustee may charge for costs incurred in recording, mailing, publishing, and posting of Notice of Default and Notice of Trustee’s Sale; the cost of postponing the sale by request of the trustor (not to exceed $50 per postponement) and the cost of a trustee’s sale guarantee. In addition to charging for these actual costs, the law provides for a fee schedule based on the amounts of the unpaid debt.

The legal limitations for trustee’s and attorney’s fees do not apply to attorney’s fees the beneficiary is entitled to recover under special provisions of the deed of trust.

Special Legal Provisions

Special federal and state laws may affect the manner in which the foreclosure is conducted. If the loan is insured or guaranteed by the U. S. Department of Housing and urban Development (HUD! EHA) or the Veterans Administration (VA), certain procedures must be followed. In the case of a VA-guaranteed loan, the trustor may be liable for any deficiency, unless the veteran obtains a release of liability from the VA. California law does not necessarily protect the trustor from liability for a deficiency on a VA guaranteed loan. Federal laws governing the VA loan program take precedence over any conflicting California law. Trustors should contact the VA for details concerning their rights and to learn about specific requirements.

Judicial Foreclosure

Judicial Foreclosure is tried in some state Superior Courts. The beneficiary, upon default of obligation by the trustor, brings a foreclosure lawsuit against the trustor. If successful, the court will issue an order to sell the property at a public sale. The beneficiary must use judicial foreclosure if the security instrument does not contain a power of sale provision. A mortgage or deed of trust containing the power of sale provision may be foreclosed judicially if the beneficiary chooses to do so.

The decision to foreclose judicially or non-judicially is not necessarily final. The beneficiary may discontinue judicial foreclosure at any time and commence non-judicial foreclosure.

Conversely, the beneficiary may abandon non-judicial foreclosure and initiate judicial foreclosure. Beneficiaries sometimes initiate both types of foreclosure simultaneously.

Foreclosure Sale

A court-appointed commissioner or sheriff in the public place must give notice of the sale of the property for 20 days preceding in the date of the sale. This same notice must be published in a newspaper of general circulation weekly for 20 days. The notice also must be sent by certified mail to all defendants at their last known addresses.

At the foreclosure sale, the property must be sold by the auctioneer to the highest bidder who is financially qualified.

Redemption of Property

In a judicial sale, the trustor has the right to redeem or reclaim the property after the foreclosure sale. For a trustor, the right of redemption makes a judicial sale attractive. It should be remembered, however, that a judicial sale might also lead to a deficiency judgment. This possibility does not exist in a non-judicial foreclosure.

Deficiency Judgment

In a judicial foreclosure, the beneficiary has, under certain circumstances, a right to a deficiency judgment. The deficiency judgment is limited to an amount equal to either the difference between the indebtedness and the fair market value of the property, or the indebtedness and the sales price at the foreclosure sale, whichever is less.

Rent and Rental Income

The trustor occupying the disputed property does not have to pay the beneficiary rent while in default. The beneficiary may be entitled, however, to any rental income generated by the property.

After the sale, the trustor retains possession of the property and does not have to pay the beneficiary rent while in default. The beneficiary may be entitled, however, to any rental income generated by the property.

Craig Meriwether is owner of Kula Investments, a company founded you help you get top dollar for you owner financed real estate loan. [http://www.ioubuyer.com]

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Foreclosure Real Estate Investment StrategiesBy Simon Volkov

Foreclosure real estate investing can be a profitable niche for those who take time to learn the strategies. Foreclosed realty encompasses a variety of properties including residential homes, vacant land, and commercial real estate.

When buying foreclosure real estate, investors must be financially prepared to invest in property repairs or renovation. While foreclosed properties are priced below market value, homes requiring substantial repair can quickly deplete home equity.

Investors must engage in due diligence by reviewing comparable sales reports and obtaining home inspections, property appraisals, and repair cost estimates to determine the true cost of buying foreclosure properties.

Several options exist for locating foreclosed properties at discounted prices. The most common is to attend public foreclosure auctions. All properties presented through auction are sold in “as-is” condition. Buyers must be prepared to submit payment in full within 24 hours once their bid is accepted. Once realty is transferred, property owners are responsible for removing creditor and tax liens and making necessary repairs.

Another option is to seek out foreclosure short sale homes. These properties are in the midst of the foreclosure process and purchase negotiations take place with lenders’ loss mitigation department.

With short sales, lenders agree to accept less than the full amount owed on the home loan. Properties are listed through realtors or sold directly through the bank. The short sale process can be complex and lengthy; taking up to four months or more to complete. Buyers must obtain prequalified financing prior to submitting an offer. It is important to note that banks rarely accept offers lower than the asking price unless property inspections reveal major problems.

Short sale houses can provide investors with a good deal, but may not be the best option for investors who participate in house flipping or plan to use the home to generate rental income. Buyers willing to wait out the process can generally purchase homes at 10- to 20-percent below appraised value.

One way to obtain the best price on foreclosure properties is to seek out private investors who specialize in wholesaling. Some investors and investment groups purchase entire bank portfolios consisting of dozens of bank owned foreclosure properties.

Also known as real estate owned (REO) homes, these properties are houses that did not sell at auction. One of the biggest advantages of REO property is houses are sold with a clean title. When banks regain ownership of foreclosure real estate they remove attached creditor and tax liens and commence with eviction action when foreclosed homeowners refuse to leave the premises.

Investors who buy homes in bulk obtain wholesale pricing and pass savings along to individual buyers. REO homes can often be purchased at 20- to 30-percent below market value and provide investors with instant home equity.

It is crucial for real estate investors to become educated about all facets of buying foreclosure properties. Many newbie investors are tempted by the low price tag of foreclosures, but fail to realize the costs associated with rehabbing the property.

Foreclosures, short sale and bank owned real estate nearly always require some level of repair. Investors must take time to calculate the true cost of the property before making an offer to buy. Otherwise, investors could hold title to a money pit which could take years to financially recover from.

Simon Volkov is a California real estate investor who specializes in buying and selling foreclosure real estate, bank owned properties, and short sale homes. His website offers real estate investing articles and resources to help investors develop strategies to build solid investment portfolios. Learn more at www.SimonVolkov.com.

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