Foreclosure Defense Unit Foreclosure Information and Resources Legal Aid Society of Palm Beach County, Inc. 423 Fern Street, Suite 200 West Palm Beach, Florida 33401 Phone: (561) 655-8944 Ext. 325 Fax: (561) 655-5269 www.legalaidpbc.org
TABLE OF CONTENTS Page Number 1. The Foreclosure Process..3-4 2. Community Resources.. 5 3. Top Ten Things To Know If You re Interested In A Reverse Mortgage... 6-8 4. How to Protect Yourself: Tips for Avoiding Mortgage Foreclosures... 9-10 5. BEWARE Of Foreclosure Rescue Scams.....11-12 6. Loss Mitigation Telephone Directory.. 13 7. The House I Am Renting Is Being Foreclosed Upon. 14-15 8. Homeownership Glossary of Terms.. 16-23 9. FORMS.....24 Instructions To Prepare And Complete Pro Se Answer To Complaint For Mortgage Foreclosure.....25-26 Pro Se Defendant s Answer To Plaintiff s Complaint For Mortgage Foreclosure...27-28 Pro Se Motion Requesting An Enlargement Of Time To File Answer (Or Other Response) To Plaintiff s Complaint For Mortgage Foreclosure.........29-30 2
1) The bank files a Complaint. [The following is being provided for informational purposes only and should not be deemed legal advice.] 2) You must file a response and serve a copy on the attorney for the bank within 20 days from which you are served, Civil Rule 1.140. 3) It is important that you file a response, if you are served with a foreclosure Complaint. If you fail to respond, a default will be entered against you. When a default is entered, you are deemed to have admitted the allegations in the Complaint. That means that you are admitting all the facts that will entitle the bank to foreclose on the property. 4) Remember that you own the property until it is actually sold at a foreclosure sale. So even after a foreclosure is filed you can still sell the property or refinance your loan. In some instances, the bank will take a deed in lieu of foreclosure. That means they will accept a deed to the property as satisfaction for the debt. 5) Mediation Can Help: A common complaint is that the debtor cannot get a person at their bank who will give them an answer about what loan workout is available. Mediation is a process where an independent 3 rd party meets with you and your attorney and the bank and its attorney. The bank representative is usually allowed to attend by phone, but that representative must have workout or settlement authority. The mediator s job is to help you and the bank reach an agreement. The mediator cannot force either you or the bank to agree, but the mediator is trained to help the parties reach their own agreement. If you ask for mediation the judge will almost always order it. 6) Most foreclosures are accomplished by what is called a Summary Judgment. In short this is a hearing, usually after a default has been entered, where the bank presents the original note and mortgage to the Court and sworn statements as to the amount due under the mortgage, the attorney fees expended and the court costs. The Court may then enter a Summary Judgment of Foreclosure. 3
7) If you disagree with the facts set out in the bank s affidavits, then to avoid the summary judgment you must file your own affidavit (a statement sworn to in front of a notary) stating the facts as you know them. The judge will not take testimony from witnesses at the summary judgment hearing. If the judge finds from the affidavits that there is a disputed issue of fact, which is material to the foreclosure, the judge will deny the summary judgment. 8) If a judgment of foreclosure is entered, the next step in the process is the sale of the house. Under Florida law, F.S. 45.031(1)(a), the property must be sold no sooner than 20 days and no later than 35 days after the judgment of foreclosure. In most instances, if you are still trying to work out your loan, do a refinance or do a short sale, the bank will agree to a sale date of from 60 to 90 days after the judgment. But they are not required to do this. 9) The sale takes place on the first floor of the main courthouse in West Palm Beach. Usually the bank buys the property, but that is not always the case. 10) Even after the sale, the bank will sometimes do a work out of the loan. So if you want to save your home keep at it even after the sale. 11) The Bitter End : This is the worst that can happen. 10 days after the sale the clerk will issue a Certificate of Title to the buyer. The certificate of title is the legal document giving title to the buyer. That is an important event because at any time after that date, under Florida Statutes, the clerk is authorized to issue a writ of possession. The Writ of Possession is the thing that the sheriff tacks on the door of a foreclosed property. When the sheriff posts a Writ of Possession on the property you have 24 hours to leave before the sheriff will put you and your belongings out, F.S. 83.62(1). 12) So, if you end up being foreclosed on, you should know where you are going and how you are getting there by the time of the sale. Because after the sale, you may only have 10 to 14 days to leave voluntarily. 13) Lastly: The most important thing to remember is if you are involved in a foreclosure is Don t be an ostrich and put your head in the sand, stay involved. If you can afford an attorney hire one. If you cannot afford an attorney check with one of the agencies listed in our administrative order 3.305-1/09 which is available on the court web site at https://15thcircuit.co.palm-beach.fl.us. These agencies can help you find assistance and housing and can put you in touch with other LEGITIMATE agencies that may be able to help you refinance or re-work your loan with your bank. * The foreclosure process flyer was prepared by the Honorable Jack H. Cook of the Fifteenth Judicial Circuit. 4
COMMUNITY RESOURCES Palm Beach County Mortgage Assistance Program: 561-233-3611 Program Requirements: Applicant must be working or have source of income Property must be located in Palm Beach County Assessed value cannot exceed $280,000 Must provide reasons why the homeowner fell behind with mortgage Must be able to demonstrate homeowner can continue the payments Arrears can not exceed $7,500 OR if the arrearage exceeds $7,500 the homeowner must have the funds to make up the difference Mortgage company must be willing to cooperate with the homeowner and the county City of West Palm Beach Foreclosure Assistance Center offers homeowners living in the city of West Palm Beach receive help modifying loan payments, repairing credit and negotiating so-called short sales. Certain homeowners may qualify for as much as a $10,000 loan that can be used toward past-due mortgage payments. Office is located at 464 Fern Street and may be reached at 822-1575. Hope Now 888.995.HOPE HOPE NOW is a cooperative effort between counselors, investors, and lenders. Homeowner is referred to a housing counselor from a HUD certified housing counseling agency. Homeowner will need to know name of lender, account number, and zip code for initial screening. Screening upon referral to Housing counselor will require information on delinquency, current earnings, and monthly expenses to determine if homeowner can sustain mortgage. Housing Counselor will complete a financial analysis and attempts to work with lender on reinstatement and modification of the loan. Making Homes Affordable www.makinghomesaffordable.gov If you can no longer afford to make your monthly loan payments, you may qualify for a loan modification to make your monthly mortgage payment more affordable. To qualify for a Home Affordable Modification, eligible homeowners must meet the following five criteria: 1. The home must be the borrower s primary residence; 2. The amount you owe on your first mortgage must be equal to or less than $729,750; 3. Must be having trouble paying your mortgage; 4. Mortgage must have been signed before January 1, 2009; and 5. Payment on your first mortgage (including principal, interest, taxes, insurance and homeowner s association dues, if applicable) is more than 31% of your current gross income. HOUSING COUNSELING AGENCIES HomeFree-USA 561-822-1583 Consumer Credit Counseling Services, Inc. 800-251-2227 Delray Community Development Corporation 561-266-9840 Housing Partnership, Inc. 561-841-3500 Life Improvement for Tomorrow, Inc. 561-868-7026 Urban League of Palm Beach County, Inc. 561-833-1461 5
Top Ten Things to Know if You're Interested in a Reverse Mortgage (Excerpt from http://www.hud.gov/offices/hsg/sfh/hecm/rmtopten.cfm) Reverse Mortgages are becoming popular in America. The U.S. Department of Housing and Urban Development (HUD) created one of the first. HUD's Reverse Mortgage is a federally-insured private loan, and it's a safe plan that can give older Americans greater financial security. Many seniors use it to supplement social security, meet unexpected medical expenses, make home improvements, and more. You can receive free information about reverse mortgages by calling AARP at: 1-800-209-8085, toll-free. Since your home is probably your largest single investment, it's smart to know more about reverse mortgages, and decide if one is right for you! 1. What is a reverse mortgage? A reverse mortgage is a special type of home loan that lets a homeowner convert a portion of the equity in his or her home into cash. The equity built up over years of home mortgage payments can be paid to you. But unlike a traditional home equity loan or second mortgage, no repayment is required until the borrower(s) no longer use the home as their principal residence. HUD's reverse mortgage provides these benefits, and it is federally-insured as well. 2. Can I qualify for a HUD reverse mortgage? To be eligible for a HUD reverse mortgage, HUD's Federal Housing Administration (FHA) requires that the borrower is a homeowner, 62 years of age or older; own your home outright, or have a low mortgage balance that can be paid off at the closing with proceeds from the reverse loan; and must live in the home. You are further required to receive consumer information from HUD-approved counseling sources prior to obtaining the loan. You can contact the Housing Counseling Clearinghouse on 1-800-569-4287 to obtain the name and telephone number of a HUD-approved counseling agency and a list of FHA approved lenders within your area. 3. Can I apply if I didn't buy my present house with FHA mortgage insurance? Yes. It doesn't matter if you didn't buy it with an FHA-insured mortgage. Your new HUD reverse mortgage will be a new FHA-insured mortgage loan. 4. What types of homes are eligible? Your home must be a single family dwelling or a two-to-four unit property that you own and occupy. Townhouses, detached homes, units in condominiums and some manufactured homes are eligible. Condominiums must be FHA-approved. It is possible for individual condominiums units to qualify under the Spot Loan program. 6
5. What's the difference between a reverse mortgage and a bank home equity loan? With a traditional second mortgage, or a home equity line of credit, you must have sufficient income versus debt ratio to qualify for the loan, and you are required to make monthly mortgage payments. The reverse mortgage is different in that it pays you, and is available regardless of your current income. The amount you can borrow depends on your age, the current interest rate, and the appraised value of your home or FHA's mortgage limits for your area, whichever is less. Generally, the more valuable your home is, the older you are, the lower the interest, the more you can borrow. You don't make payments, because the loan is not due as long as the house is your principal residence. Like all homeowners, you still are required to pay your real estate taxes and other conventional payments like utilities, but with an FHA-insured HUD Reverse Mortgage, you cannot be foreclosed or forced to vacate your house because you "missed your mortgage payment." 6. Can the lender take my home away if I outlive the loan? No! You do not need to repay the loan as long as you or one of the borrowers continues to live in the house and keeps the taxes and insurance current. You can never owe more than your home's value. 7. Will I still have an estate that I can leave to my heirs? When you sell your home or no longer use it for your primary residence, you or your estate will repay the cash you received from the reverse mortgage, plus interest and other fees, to the lender. The remaining equity in your home, if any, belongs to you or to your heirs. None of your other assets will be affected by HUD's reverse mortgage loan. This debt will never be passed along to the estate or heirs. 8. How much money can I get from my home? The amount you can borrow depends on your age, the current interest rate, and the appraised value of your home or FHA's mortgage limits for your area, whichever is less. Generally, the more valuable your home is, the older you are, the lower the interest, the more you can borrow. 9. Should I use an estate planning service to find a reverse mortgage? I've been contacted by a firm that will give me the name of a lender for a "small percentage" of the loan? HUD does NOT recommend using an estate planning service, or any service that charges a fee just for referring a borrower to a lender! HUD provides this information without cost, and HUD-approved housing counseling agencies are available for free, or at minimal cost, to provide information, counseling, and free referral to a list of HUD-approved lenders. Call 1-800-569-4287, toll-free, for the name and location of a HUD-approved housing counseling agency near you. 7
10. How do I receive my payments? You have five options: Tenure - equal monthly payments as long as at least one borrower lives and continues to occupy the property as a principal residence. Term - equal monthly payments for a fixed period of months selected. Line of Credit - unscheduled payments or in installments, at times and in amounts of borrower's choosing until the line of credit is exhausted. Modified Tenure - combination of line of credit with monthly payments for as long as the borrower remains in the home. Modified Term - combination of line of credit with monthly payments for a fixed period of months selected by the borrower. 8
How to Protect Yourself: Tips for Avoiding Mortgage Foreclosures (Source: The Florida Attorney General) More Information can be found at http://myfloridalegal.com/pages.nsf/main/55bc21cb13128f728525741800481491 Contact your lender or loan servicer as soon as you realize you may have a problem and may have missed a payment. Studies show that at least 50 percent of all consumers that have defaulted on a mortgage or missed payments never contact their lender. This is a mistake. Lenders can discuss options with you to help you work through payments during difficult financial times. Lenders prefer to have you keep your home and most will work with you. Be honest with your lender about your financial circumstances. For more information about contacting your lender and what documents you should gather before speaking with your lender, refer to http://www.fha.gov or use This link http://portal.hud.gov/portal/page?_pageid=33,717348&_dad=portal&_schema=portal. Gather information. Learn all that you can about your mortgage rights and foreclosure laws in Florida. Review your loan documents to determine what your lender may do if you can t make your payments. Review Florida laws, particularly Chapter 702, Florida Statutes and Section 45.031, Florida statutes to learn about foreclosure proceedings. Attend a foreclosure prevention information session. Information on local sessions may be available on http://www.fha.gov under hot topics, foreclosure prevention events for homeowners. Contact a nonprofit housing counselor. Help and information is available to you free of cost. The HOPE NOW alliance provides a 24-hour hotline to provide mortgage counseling assistance in multiple languages. 1-888-995-HOPE. You may also obtain a list of HUD-approved counseling services in Florida at http://www.hud.gov or at this webpage:http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm?weblistaction=search&searchstate=f L. Understand the relevant terms: If you are working with your lender or an approved housing counselor to keep your home, there are several options: o o o o Reinstatement: Your lender may agree to let you pay the total amount you are behind, in a lump sum payment and by a specific date. This is often combined with forbearance when you can show that funds from a bonus, tax refund, or other source will become available at a specific time in the future. Be aware that there may be late fees and other costs associated with a reinstatement plan. Forbearance: Your lender may offer a temporary reduction or suspension of your mortgage payments while you get back on your feet. Forbearance is often combined with a reinstatement or a repayment plan to pay off the missed or reduced mortgage payments. Repayment Plan: This is an agreement that gives you a fixed amount of time to repay the amount you are behind by combining a portion of what is past due with your regular monthly payment. At the end of the repayment period you have gradually paid back the amount of your mortgage that was delinquent. Loan modification: This is a written agreement between you and your mortgage company that permanently changes one or more of the original terms of your note to make the payments more affordable. 9
If you and your lender agree that you can not keep your home, there may still be options to avoid foreclosure: o o o o Short Payoff: If you can sell your house but the sale proceeds are less than the total amount you owe on your mortgage, your mortgage company may agree to a short payoff and write off the portion of your mortgage that exceeds the net proceeds from the sale. Deed-in-lieu of foreclosure: A deed-in-lieu of foreclosure is a cancellation of your mortgage if you voluntarily transfer title of your property to your mortgage company. Usually you must try to sell your home for its fair market value for at least 90 days before a mortgage company will consider this option. A deed-in-lieu of foreclosure may not be an option if there are other liens on the property, such as second mortgages, judgments from creditors, or tax liens. Assumption: An assumption permits a qualified buyer to take over your mortgage debt and make the mortgage payments, even if the mortgage is non-assumable. As a result, you may be able to sell your property and avoid foreclosure. Refinancing: While refinancing is not necessarily a good option when facing foreclosure and can sometimes even be a predatory practice, there are instances where it may help. Talk to your lender to see if refinancing is an option for you. Avoid foreclosure prevention or loss mitigation companies. If you fall behind in your mortgage payments, many for-profit companies will contact you promising to help you avoid foreclosure. Some may even appear to be affiliated with your lender. Many also list their services on the internet and ask that you fill out a referral form online. It is best to avoid dealing with these companies. Most will charge you a hefty fee upfront for information that your lender or a HUD approved counselor will provide to you for free. You can obtain the same workout plan or a better plan for free by contacting your lender or a HUD approved counselor. Use your money to pay the mortgage instead. Do not fall victim to a foreclosure recovery scam. If any business or individual offers to help you stop foreclosure immediately by signing a document authorizing them to act on your behalf or to set up financing for you, do not sign without consulting a professional (an attorney or HUD-approved counselor). This may be a trick to get you to sign over title to your home. You are then vulnerable to losing your home and all of your equity in your home to the so called rescuer. Carefully examine your finances. Can you cut spending on optional expenses, delay payments on credit cards or other unsecured debt until you have paid your mortgage? Do you have assets that you could sell to help reinstate your loan? Can anyone in the household get a second job to help with income? These efforts to manage your finances may help you find income to apply to your outstanding payments and will demonstrate to your lender that you are willing to work on your finances and make sacrifices in order to keep your home. For more information contact the AG consumer hotline at 1-866-966-7226 or visit http://www.hud.gov for these and other helpful tips. 10
BEWARE OF FORECLOSURE RESCUE SCAMS (Source: The Florida Attorney General) More Information can be found at http://www.myfloridalegal.com/mortgagefraud What Should Consumers Do? Homeowners should NEVER pay any up-front fees and should avoid any highpressure sales tactics. Fees may only be collected AFTER services are completed. Homeowners should first try talking to their lenders or a lawyer before contracting with any third-party company for rescue or modification services. If a homeowner believes he or she has been taken advantage of by a disreputable company, he or she should call the Florida Attorney General s fraud hotline at 1-866-9-NO-SCAM or file a complaint online at myfloridalegal.com. The complaint will be reviewed by the Attorney General s Mortgage Fraud Task Force. What is a Foreclosure "Rescue" Scam? Simply put foreclosure rescue fraud happens when a company or person promises to help save your home from foreclosure, but is actually intent on stealing your home, most of the equity you have accumulated in your home, or a substantial amount of money. There are several types of Foreclosure Rescue Scams you should be aware of: o o o o o Foreclosure Prevention Specialist these are phony foreclosure counselors who may try to collect large sums of money but rarely provide any services. Phantom Help individuals who charge high fees for work the homeowner could do his or herself. Lease/Buy Back homeowners are deceived into signing over the deed to their homes. False Bailout the homeowner is led to believe that he or she can rent his or her home from the new owners and eventually repurchase the home. Bait and Switch the homeowner thinks he or she is signing new mortgage documents, but is actually signing over the deed to their home. How do I know whether a foreclosure modification company is legitimate? You should avoid any company that asks you to pay an up-front fee for its services, no matter what that fee is called. You should also avoid any company that promises you that it can save your home or get you a reduced mortgage interest rate. You can call the Attorney General Hotline at 1-866-966-7226 and check to see if there are any complaints. Do I need to stop paying my mortgage in order to qualify for a loan modification? No. Avoid any company that instructs you to stop paying your mortgage. 11
I paid money to a company several months ago and now they are no longer answering their phones or responding to my emails. What should I do? You should always attempt to negotiate with your original lender first, and you should re-contact them if you still need assistance. You should also file a complaint with the Attorney General s Office. I negotiated a loan modification with a company in California and paid an up-front fee for its service. I was reading about the companies in Florida which are being sued for charging these fees. Does the Florida law only apply to Florida companies? No. The statute applies to ALL companies, regardless of where they are located, if they are assisting a consumer who owns real property in the State of Florida or if the companies are located in Florida. I am not a Florida resident and a Florida foreclosure rescue company is attempting to charge me an up-front fee. The company told me that the new law only applies to Florida residents, and they can charge out-of-state residents an upfront fee. Is this correct? No. The law applies to any company doing business in Florida. I received a flyer in the mail or a telephone call from a company that sounded like it was affiliated with the government. What should I do? Do not respond to any solicitation, either by mail or by telephone, which does not come from someone you already know and trust. These types of solicitations usually are from private, for-profit companies which are only looking to make money. I am attempting to do a loan modification with a licensed Florida mortgage broker. He says he can charge me an application fee under Florida law. Is this correct? No. The Office of Financial Regulation has stated that loan modifications are not governed under their regulatory statutes. Consequently, even Florida licensed mortgage brokers are governed by Florida Statute 501.1377 and may not charge an application fee or any other upfront fee directly or indirectly. I have been told by the loan modification company that the fee it is charging is for a forensic audit. Is this legal? No. Loan modification companies cannot charge any fee or secure payment for any service that has not been completed. 12
LOSS MITIGATION DIRECTORY Loss Mitigation -- A division of your lender that helps borrowers to avoid foreclosure and lenders to minimize their losses on delinquent loans. ABN 800-783-8900 Accredited 877-273-4599 America s Servicing 866-248-5719 Ameriquest/Citi Residential 800-211-6926 Aurora 800-550-0509 Avello 866-992-8356 Bank of America 800-936-6362 Bank One 877-409-3651 Carrington 800-790-9502 Cenlar 800-242-7178 Chase 800-446-8939 Chase-CA 877-838-1882 CitiFinancial 800-422-1498 CitiMortgage 800-926-9783 Countrywide 800-262-4218 Dovenmuehle 888-395-3997 EMC 888-577-4011 Everhome 800-669-7724 First Horizon 214-441-7358 Freemont 866-484-0291 GMAC 800-766-4622 Homecomings 800-206-2901 Home Loan 800-622-5035 Homeq 866-822-1471 IndyMac 877-908-4357 Litton 800-247-9727 NCC Servicing 800-807-1497 National City 937-910-4949 Navy Federal 703-206-3996 PHH 800-750-2518 M&T 800-724-2224 Ocwen 877-596-8580 Option One 888-275-2648 PNC 412-762-9518 or 412-762-1618 Provident Funding 707-547-4050 Extension 4615 or 4726 SN Servicing 800-603-0836 Saxon 888-325-3502 Select Portfolio 888-349-8955 Wachovia 866-642-8608 Washington Mutual 866-926-8937 Washington Mutual-HE Loans 800-544-9635 Webster Bank 203-271-7578 Wells Fargo 877-216-8448 Wilshire 888-502-0100 13
THE HOUSE I AM RENTING IS BEING FORECLOSED What Is A Foreclosure? If your landlord does not pay his mortgage, the mortgage company may file a foreclosure. A foreclosure is a lawsuit filed by the mortgage company when the owner does not pay the mortgage payment. In the foreclosure, the mortgage company asks the court to sell the property to pay off the mortgage. I Am Only A Tenant - Why Am I Being Served? If a foreclosure is filed against your landlord, as a tenant living in the property, you will usually be served with the foreclosure lawsuit. Either the Sheriff or a process server will hand you a copy of the lawsuit. As a tenant, you are a party to the foreclosure, but the foreclosure complaint will refer to you as the "unknown tenant" or "John/Jane Doe." What Should I Do If I Am Served With Notice of A Foreclosure Against My Landlord? Even though you do not own the property, you should file an Answer to the foreclosure. In the Answer explain that: * You live in the property * You rent the property. * If you have a lease, say this in your Answer * The date your lease expires * Attach a copy of the lease to the Answer If you file an Answer, it will tell the judge and the mortgage company that a tenant is living in the property. You will also be notified if any hearings are scheduled in the case. If you do not file an Answer, you will not receive any notices about the foreclosure lawsuit, and you will not know what is happening in the case. Do I Have Any Special Rights If I Once Owned the Property where I am living? If you are living in a home that you used to own and you have the option of repurchasing the property, it is important that you write this in the Answer. You should also talk to your own attorney because the law in this situation is complicated. What Should I Do If My Landlord Tells Me She Plans to Stop The Foreclosure? If you receive a foreclosure complaint, you should contact your landlord to find out what she intends to do about the foreclosure. Many times, after a foreclosure is filed, the owner pays the mortgage company enough money to stop the foreclosure. If the landlord does this, the foreclosure should be dismissed. Even if your landlord tells you she will stop the foreclosure, you should still file an Answer in the foreclosure lawsuit. What Should I Do If My Landlord Tells Me She Cannot Stop the Foreclosure? If your landlord tells you that she is not going to be able to stop the foreclosure, or if you cannot find your landlord, you should file an Answer in the foreclosure and begin looking for a new place to live. Legally, you must continue to pay rent to your landlord during the foreclosure process. If you plan on moving, you need to comply with any notice requirements in your lease. I Did Not Sign a Lease. How Much Notice Must I Give? 14
According to Florida Statute 83.57, the following notice times are required: Length of Tenancy Notice Before End of Given Period Year to Year 60 Days Quarter to Quarter 30 Days Month to Month 15 Days Week to Week 7 Days What Happens if the Mortgage s Foreclosed? If your landlord does not stop the foreclosure, the Court will enter judgment against the landlord. The Court will schedule a foreclosure sale. Once the property is sold at the foreclosure sale, there will be a new owner of the property. What About My Security Deposit? If your landlord keeps your security deposit, without good cause, then you must file a claim in small claims court to recoup it. Do not stop paying rent, because you think the security deposit will be used to cover your rent. Can the New Owner Force Me To Move? The new owner must wait 10 days after the foreclosure sale before asking the Court to issue a Writ of Possession to remove you from the property. A Writ of Possession is a document where the Court orders the Sheriff to remove you and all of your belongings from the property. Sometimes the new owner will schedule a hearing to ask the Judge for the Writ of Possession, but this is not required. If you are still living in the property and the new owner schedules a hearing asking for a Writ of Possession, it is very important that you attend the hearing so you can tell the Judge how much time you will need in order to relocate. After the Property is Sold to A New Owner, Must I Pay Rent to the Old Landlord? After the property is sold at the foreclosure sale, you don t need to pay rent to the old landlord. What Should I Do If the New Owner Asks Me If I Want To Stay? Sometimes, the new owner will ask if you want to still live in the property. If this happens, you must make sure that the person who contacts you is really the new owner. You should ask for proof that he is the new owner before you pay him any rent. If you cannot reach an agreement, the new owner cannot force you out by changing the locks or turning off the utilities. I Heard There Were New Protections for Tenants. Is That True? Yes. A new federal law gives special protections to most tenants in foreclosed properties. If your landlord s mortgage was federally related (like a HUD mortgage) or if the foreclosure occurred after May 20, 2009, you are entitled to at least ninety days notice to vacate. More specifically: If you are a tenant with an unexpired lease term: The law requires a new owner acquiring the property at a foreclosure sale (including plaintiffs acquiring the property) to honor all terms and conditions of the existing lease. This means the tenant can remain in the property for the time remaining in the lease term. However, if the new owner wants to live in the property, then the new owner may terminate the tenancy by giving the tenant at least 90 days written notice. If you are a tenant without a lease: In the case of tenants without a current lease (usually monthto-month tenants), the new owner must provide the tenant with a minimum of a 90-day written notice before terminating the tenancy. This also applies when there is an unexpired written lease which has less than 90 days remaining. 15
HOMEOWNERSHIP GLOSSARY (Excerpts from http://www.hud.gov/offices/hsg/sfh/buying/glossary.cfm) A Amortization: repayment of a mortgage loan through monthly installments of principal and interest; the monthly payment amount is based on a schedule that will allow you to own your home at the end of a specific time period (for example, 15 or 30 years) Annual Percentage Rate (APR): calculated by using a standard formula, the APR shows the cost of a loan; expressed as a yearly interest rate, it includes the interest, points, mortgage insurance, and other fees associated with the loan. Appraisal: a document that gives an estimate of a property's fair market value; an appraisal is generally required by a lender before loan approval to ensure that the mortgage loan amount is not more than the value of the property. Appraiser: a qualified individual who uses his or her experience and knowledge to prepare the appraisal estimate. ARM: Adjustable Rate Mortgage; a mortgage loan subject to changes in interest rates; when rates change, ARM monthly payments increase or decrease at intervals determined by the lender; the Change in monthly -payment amount, however, is usually subject to a Cap. Assumable mortgage: a mortgage that can be transferred from a seller to a buyer; once the loan is assumed by the buyer the seller is no longer responsible for repaying it; there may be a fee and/or a credit package involved in the transfer of an assumable mortgage. B Balloon Mortgage: a mortgage that typically offers low rates for an initial period of time (usually 5, 7, or 10) years; after that time period elapses, the balance is due or is refinanced by the borrower. Bankruptcy: a federal law Whereby a person's assets are turned over to a trustee and used to pay off outstanding debts; this usually occurs when someone owes more than they have the ability to repay. Borrower: a person who has been approved to receive a loan and is then obligated to repay it and any additional fees according to the loan terms. C Cap: a limit, such as that placed on an adjustable rate mortgage, on how much a monthly payment or interest rate can increase or decrease. 16
Cash reserves: a cash amount sometimes required to be held in reserve in addition to the down payment and closing costs; the amount is determined by the lender. Certificate of title: a document provided by a qualified source (such as a title company) that shows the property legally belongs to the current owner; before the title is transferred at closing, it should be clear and free of all liens or other claims. Closing: also known as settlement, this is the time at which the property is formally sold and transferred from the seller to the buyer; it is at this time that the borrower takes on the loan obligation, pays all closing costs, and receives title from the seller. Closing costs: customary costs above and beyond the sale price of the property that must be paid to cover the transfer of ownership at closing; these costs generally vary by geographic location and are typically detailed to the borrower after submission of a loan application. Commission: an amount, usually a percentage of the property sales price, that is collected by a real estate professional as a fee for negotiating the transaction.. Conventional loan: a private sector loan, one that is not guaranteed or insured by the U.S. government. D Debt-to-income ratio: a comparison of gross income to housing and non-housing expenses; With the FHA, the-monthly mortgage payment should be no more than 29% of monthly gross income (before taxes) and the mortgage payment combined with nonhousing debts should not exceed 41% of income. Deed: the document that transfers ownership of a property. Deed-in-lieu: to avoid foreclosure ("in lieu" of foreclosure), a deed is given to the lender to fulfill the obligation to repay the debt; this process doesn't allow the borrower to remain in the house but helps avoid the costs, time, and effort associated with foreclosure. Default: the inability to pay monthly mortgage payments in a timely manner or to otherwise meet the mortgage terms. Delinquency: failure of a borrower to make timely mortgage payments under a loan agreement. Discount point: normally paid at closing and generally calculated to be equivalent to 1% of the total loan amount, discount points are paid to reduce the interest rate on a loan. Down payment: the portion of a home's purchase price that is paid in cash and is not part of the mortgage loan. 17
E Earnest money: money put down by a potential buyer to show that he or she is serious about purchasing the home; it becomes part of the down payment if the offer is accepted, is returned if the offer is rejected, or is forfeited if the buyer pulls out of the deal. EEM: Energy Efficient Mortgage; an FHA program that helps homebuyers save money on utility bills by enabling them to finance the cost of adding energy efficiency features to a new or existing home as part of the home purchase Equity: an owner's financial interest in a property; calculated by subtracting the amount still owed on the mortgage loon(s)from the fair market value of the property. Escrow account: a separate account into which the lender puts a portion of each monthly mortgage payment; an escrow account provides the funds needed for such expenses as property taxes, homeowners insurance, mortgage insurance, etc. F Fair Housing Act: a law that prohibits discrimination in all facets of the homebuying process on the basis of race, color, national origin, religion, sex, familial status, or disability. Fair market value: the hypothetical price that a willing buyer and seller will agree upon when they are acting freely, carefully, and with complete knowledge of the situation. Fannie Mae: Federal National Mortgage Association (FNMA); a federally-chartered enterprise owned by private stockholders that purchases residential mortgages and converts them into securities for sale to investors; by purchasing mortgages, Fannie Mae supplies funds that lenders may loan to potential homebuyers. FHA: Federal Housing Administration; established in 1934 to advance homeownership opportunities for all Americans; assists homebuyers by providing mortgage insurance to lenders to cover most losses that may occur when a borrower defaults; this encourages lenders to make loans to borrowers who might not qualify for conventional mortgages. Fixed-rate mortgage: a mortgage with payments that remain the same throughout the life of the loan because the interest rate and other terms are fixed and do not change. Flood insurance: insurance that protects homeowners against losses from a flood; if a home is located in a flood plain, the lender will require flood insurance before approving a loan. Foreclosure: a legal process in which mortgaged property is sold to pay the loan of the defaulting borrower. 18
Freddie Mac: Federal Home Loan Mortgage Corporation (FHLM); a federally-chartered corporation that purchases residential mortgages, securitizes them, and sells them to investors; this provides lenders With funds for new homebuyers. G Ginnie Mae: Government National Mortgage Association (GNMA); a governmentowned corporation overseen by the U.S. Department of Housing and Urban Development, Ginnie Mae pools FHA-insured and VA-guaranteed loans to back securities for private investment; as With Fannie Mae and Freddie Mac, the investment income provides funding that may then be lent to eligible borrowers by lenders. Good faith estimate: an estimate of all closing fees including pre-paid and escrow items as well as lender charges; must be given to the borrower within three days after submission of a loan application. H HELP: Homebuyer Education Learning Program; an educational program from the FHA that counsels people about the homebuying process; HELP covers topics like budgeting, finding a home, getting a loan, and home maintenance; in most cases, completion of the program may entitle the homebuyer to a reduced initial FHA mortgage insurance premium-from 2.25% to 1.75% of the home purchase price. Homeowner's insurance: an insurance policy that combines protection against damage to a dwelling and Is contents with protection against claims of negligence )r inappropriate action that result in someone's injury or )property damage. Housing counseling agency- provides counseling and assistance to individuals on a variety of issues, including loan default, fair housing, and homebuying. HUD: the U.S. Department of Housing and Urban Development; established in 1965, HUD works to create a decent home and suitable living environment for all Americans; it does this by addressing housing needs, improving and developing American communities, and enforcing fair housing laws. HUD1 Statement: also known as the "settlement sheet," it itemizes all closing costs; must be given to the borrower at or before closing. I Index. a measurement used by lenders to determine changes to the Interest rate charged on an adjustable rate mortgage. Inflation: the number of dollars in circulation exceeds the amount of goods and services available for purchase; inflation results in a decrease in the dollar's value. Interest: a fee charged for the use of money. 19
Interest rate: the amount of interest charged on a monthly loan payment; usually expressed as a percentage. Insurance: protection against a specific loss over a period of time that is secured by the payment of a regularly scheduled premium. J Judgment: a legal decision; when requiring debt repayment, a judgment may include a property lien that secures the creditor's claim by providing a collateral source. L Lease purchase: assists low- to moderate-income homebuyers in purchasing a home by allowing them to lease a home with an option to buy; the rent payment is made up of the monthly rental payment plus an additional amount that is credited to an account for use as a down payment. Lien: a legal claim against property that must be satisfied When the property is sold Loan: money borrowed that is usually repaid with interest. Loan fraud: purposely giving incorrect information on a loan application in order to better qualify for a loan; may result in civil liability or criminal penalties. Loan-to-value (LTV) ratio.- a percentage calculated by dividing the amount borrowed by the price or appraised value of the home to be purchased; the higher the LTV, the less cash a borrower is required to pay as down payment. Lock-in: since interest rates can change frequently, many lenders offer an interest rate lock-in that guarantees a specific interest rate if the loan is closed within a specific time. Loss mitigation: a process to avoid foreclosure; the lender tries to help a borrower who has been unable to make loan payments and is in danger of defaulting on his or her loan M Margin: an amount the lender adds to an index to determine the interest rate on an adjustable rate mortgage. Mortgage: a lien on the property that secures the Promise to repay a loan. Mortgage banker: a company that originates loans and resells them to secondary mortgage lenders like :Fannie Mae or Freddie Mac. Mortgage broker: a firm that originates and processes loans for a number of lenders. 20
Mortgage insurance: a policy that protects lenders against some or most of the losses that can occur when a borrower defaults on a mortgage loan; mortgage insurance is required primarily for borrowers with a down payment of less than 20% of the home's purchase price. Mortgage insurance premium (MIP): a monthly payment -usually part of the mortgage payment - paid by a borrower for mortgage insurance. Mortgage Modification: a loss mitigation option that allows a borrower to refinance and/or extend the term of the mortgage loan and thus reduce the monthly payments. O Origination: the process of preparing, submitting, and evaluating a loan application; generally includes a credit check, verification of employment, and a property appraisal. Origination fee: the charge for originating a loan; is usually calculated in the form of points and paid at closing. P Partial Claim: a loss mitigation option offered by the FHA that allows a borrower, with help from a lender, to get an interest-free loan from HUD to bring their mortgage payments up to date. PITI: Principal, Interest, Taxes, and Insurance - the four elements of a monthly mortgage payment; payments of principal and interest go directly towards repaying the loan while the portion that covers taxes and insurance (homeowner's and mortgage, if applicable) goes into an escrow account to cover the fees when they are due. PMI: Private Mortgage Insurance; privately-owned companies that offer standard and special affordable mortgage insurance programs for qualified borrowers with down payments of less than 20% of a purchase price. Pre-approve: lender commits to lend to a potential borrower; commitment remains as long as the borrower still meets the qualification requirements at the time of purchase. Pre-foreclosure sale: allows a defaulting borrower to sell the mortgaged property to satisfy the loan and avoid foreclosure. Pre-qualify: a lender informally determines the maximum amount an individual is eligible to borrow. Premium: an amount paid on a regular schedule by a policyholder that maintains insurance coverage. Prepayment: payment of the mortgage loan before the scheduled due date; may be Subject to a prepayment penalty. 21
Principal: the amount borrowed from a lender; doesn't include interest or additional fees. R Radon: a radioactive gas found in some homes that, if occurring in strong enough concentrations, can cause health problems. Real estate agent: an individual who is licensed to negotiate and arrange real estate sales; works for a real estate broker. REALTOR: a real estate agent or broker who is a member of the NATIONAL ASSOCIATION OF REALTORS, and its local and state associations. Refinancing: paying off one loan by obtaining another; refinancing is generally done to secure better loan terms (like a lower interest rate). Rehabilitation mortgage: a mortgage that covers the costs of rehabilitating (repairing or Improving) a property; some rehabilitation mortgages - like the FHA's 203(k) - allow a borrower to roll the costs of rehabilitation and home purchase into one mortgage loan. RESPA: Real Estate Settlement Procedures Act; a law protecting consumers from abuses during the residential real estate purchase and loan process by requiring lenders to disclose all settlement costs, practices, and relationships Settlement: another name for closing. S Special Forbearance: a loss mitigation option where the lender arranges a revised repayment plan for the borrower that may include a temporary reduction or suspension of monthly loan payments. Subordinate: to place in a rank of lesser importance or to make one claim secondary to another. T Title 1: an FHA-insured loan that allows a borrower to make non-luxury improvements (like renovations or repairs) to their home; Title I loans less than $7,500 don't require a property lien. Title insurance: insurance that protects the lender against any claims that arise from arguments about ownership of the property; also available for homebuyers. Title search: a check of public records to be sure that the seller is the recognized owner of the real estate and that there are no unsettled liens or other claims against the property. 22
Truth-in-Lending: a federal law obligating a lender to give full written disclosure of all fees, terms, and conditions associated with the loan initial period and then adjusts to another rate that lasts for the term of the loan. U Underwriting: the process of analyzing a loan application to determine the amount of risk involved in making the loan; it includes a review of the potential borrower's credit history and a judgment of the property value. V VA: Department of Veterans Affairs: a federal agency which guarantees loans made to veterans; similar to mortgage insurance, a loan guarantee protects lenders against loss that may result from a borrower default. 23
PRO SE FORMS Disclaimer: The following forms are being provided as a guide and should not be deemed legal advice/counsel. 24
INSTRUCTIONS TO PREPARE AND COMPLETE PRO SE ANSWER TO COMPLAINT FOR MORTGAGE FORECLOSURE A lawsuit is started when a document referred to as a Complaint is filed with the Court and served on the person being sued. The mortgage company that filed the Complaint is referred to as the Plaintiff. The person being sued is referred to as the Defendant. Thus you are the Defendant in the foreclosure lawsuit. An Answer is a response to the lawsuit filed against you. Your Answer must state whether you agree with (admit) or disagree with (deny) each paragraph contained in the complaint. It is important that you respond to each and every paragraph. If you fail to deny any information in the Plaintiff s Complaint, the court will find that you have admitted that information as true. The original Answer must be filed with the Court within 20 (calendar) days of receiving the mortgage complaint. You must mail a copy of your Answer to the Plaintiff s attorney and should keep a copy of your Answer for your records. How to Complete the Form (1) Fill in the form with the name of the mortgage company on the line for Plaintiff. Put your name and any other homeowners on the Defendant s line. Copy the case number from the Mortgage Foreclosure Complaint. (2) Insert your name in the space following "The Defendant,, files this response.. (3) You must respond to each and every paragraph of the complaint by doing the following: If you agree with (admit) what is stated in any of the paragraphs of the mortgage company's complaint, list the number of each paragraph that you agree with in the space following #1 of the answer. If you disagree with (deny) what is stated in any of the paragraphs of the mortgage company's complaint, list the number of each paragraph that you do not agree with in the space following #2 of the answer. If you are unable to answer the claims in any paragraph because you do not understand them or do not have enough information to agree with (admit) or disagree with (deny), list the number for those paragraphs in the space following #3 of the Answer. (4) Section #4 (Affirmative Defenses) This section should be completed if there are reasons that may give a legal excuse or defense for your actions. For example, if you are no longer responsible for the debt, and the mortgage company has given you a written release from the mortgage obligation, you have an affirmative defense. Examples of Affirmative Defenses: A) Fraud/Misrepresentation this is a case where one party (the lender) makes a false statement or misrepresents the truth about an important detail of the mortgage and its terms (Ex: the true price of the loan, interest rates, the waiver of consumer protections, etc.) which the lender knows is not true AND of which you have relied by acting or failing to act in some way. B) Duress unjustified pressure to sign a mortgage. However, these cases are difficult to prove if the circumstances show that you read the terms of the contract, understood them, and signed the mortgage. C) Unconscionability when the mortgage terms are unreasonably favorable to the lender, or other bad business practices, such as deceitful conduct, that result in oppressive terms or lack of bargaining power. 25