Your Phoenix Realtor - Experienced Buckeye Short Sale and Foreclosure Realtors

Need Help With An Arizona Short Sale Or Phoenix Short Sale?

admin — Sat, 06 Mar 2010 20:56:55 +0000

Do you owe more than what your home is worth? Are you behind on payments and feel that you can’t afford your home anymore? Do you think that you wouldn’t be able to pay a Realtor to sell your home due to not having enough equity? These are all symptoms of being “upside down” in your home. In simple terms, your loan amount is higher than the current market value of your home. You may want to consider negotiating an Arizona short sale.
So what can be done with a situation like this in Phoenix or Arizona? A short sale might be the best solution for your needs. Many people have never heard of the term “Arizona short sale” or “Phoenix short sale”. A short sale in Arizona is when your mortgage company agrees to take a less amount owed on your home in an effort to sell the home before having to foreclose.
Most people who are “upside down” or owe more than their home is worth are left with only 2 options when they can’t afford the payment anymore. The first is foreclosure; obviously no one wants a foreclosure. Believe it or not, that bank doesn’t either. The repercussions of a foreclosure for both the homeowner and bank can be devastating. The homeowner loses a home and destroys his credit. The bank loses thousands in court costs and foreclosure expenses.
The second option is working an Arizona short sale. The advantages of doing an Arizona short sale or Phoenix short sale is coming up with a win-win solution for all parties. For example, when homeowners complete a short sale in Arizona, they have effectively stopped a foreclosure from taking place. And they have significantly lessened the damage to their credit. As far as the bank is concerned, an Arizona short sale has prevented them from repossessing a home. Repossessing a home or foreclosing on a home can cost banks tens of thousands of dollars.
Furthermore, banks are in the business of lending money, not owning homes.
So how does a homeowner qualify for doing an Arizona short sale or Phoenix short sale? This answer will vary greatly depending on the mortgage company at hand. Every bank has different policies and guidelines when negotiating Arizona short sales and Phoenix short sales. For example, some banks will require the homeowner to be 3 months behind before they will even consider allowing an Arizona short sale. Yet, other banks will allow Phoenix short sales even if the homeowner is current with mortgage payments.
Generally speaking, to do an Arizona short sale, banks will require the proof of financial hardship. This can include loss of job, divorce, overwhelming medical bills, and other various financial stressors. Furthermore, the bank will require that the home be listed with a licensed real estate agent. This is usually done to verify the value of the home. Homeowners are typically not allowed to try and negotiate and/or sell the homes themselves when doing an Arizona short sale or Phoenix short sale. In conclusion, if you feel that you can no longer afford your home, and you owe more than what it’s worth, consult with a licensed real estate agent or attorney regarding an AZ short sale.

The 3 Biggest Misconceptions That Real Estate Agents Have About Short Sale Listings

admin — Wed, 17 Feb 2010 18:49:16 +0000

First of all, “yes” some short sales take long to sell and “yes” some short sale listings can be frustrating. But let me tell you this; not all are created equal! With a little patience and a little creativity you can overcome some of the shortcomings of listing pre-foreclosure/short sale properties and make a lot of money by helping homeowners get out from underneath the huge burden of debt and stress they are under.

Let’s deconstruct three of the biggest short sale myths:

Yes, it’s true when it comes to a short sale; the lender is in the driver’s seat. And since they hate to lose money they tend to reduce the amount of commissions by an average of 1%, meaning that if your area pays out 6%, they will only approve 5%, which will be split by both the agents involved in the transaction.

You know what I say to that? Who cares! Be creative! Did you know that there are 7 additional profit centers that can offset your 1% cut in commission? Let’s take a look at what they are:

The “Loss Mitigation Fee” is a fee that we collect only when we successfully negotiate a short sale and have the foreclosing lender pay for all of the closing costs (the realtor commissions, attorney/title company fees, conveyance taxes, etc.).

The average loss mitigator receives an average of 30 NEW files a day. Not a week, not a month but a DAY! That is part of the reason that short sales can take a while, but it isn’t the main reason. The primary reason is because the majority of real estate agents submit short sale packages that are less than adequate and professional! Meaning;

Those and many more reasons cause short sales to get hung up. Once again, take what the defense gives you. If loss mitigators are overwhelmed, then the key is to put together a professional and presentable short sale package guaranteed to get your short sale offer reviewed and approved.

With the right system they are not hard! Let’s take a look at how to overcome the two biggest reasons why short sales blow up right before the closing.

The key is not to have only one buyer but to have a pool of qualified buyers that are pre-approved. The best buyers to keep an eye out for are those that are already pre-approved and that have funds in place to make an actual purchase.

The two easiest ways to do that are: Start networking with every real estate agent that specializes in buyer’s representation. They are easy to find because it is in all of their advertisements. Start working closely with every single mortgage broker or direct lender that you know, or that one of your fellow agents knows.

In conclusion, listing pre-foreclosure/short sale properties can take some time to close. However; in this market everyone needs to stick together and help one another out. By building the right network of real estate professionals, we can all ensure that our listings (short sales or not) do not sit out there without a buyer!

AZ Short Sale: Advantages for the Homeowner, Investor, And Bank

admin — Tue, 02 Feb 2010 00:05:23 +0000

AZ short sale is one of the fastest ways to free yourself from mortgage woes. But if you think that borrowers like you are the only ones that will benefit from AZ short sale, think again. More than you know, the bank or the mortgage lender and the buyer of your property via Arizona short sale or short sale Phoenix also benefit from such transactions.
For the banks, an AZ short sale allows them to avoid holding on to your defaulted property that, come to think of it, really has nothing to do with their business. If banks would jump at the idea of foreclosing every property that secures default mortgages, they will have a lot of non-performing assets in their books. And they don’t like that. With borrowers opting for short sale Phoenix or the statewide Arizona short sale, a bank gets cash instead of empty houses. Through AZ short sale, banks will have more money to invest in income generating activities or operations. When a property mortgage runs in default, banks are required to put up reserve funds to cover the outstanding loan. But because after an AZ short sale, banks will be taking mortgage receivables off their books, idle funds are freed up for more profitable use.
An AZ short sale is also advantageous for homebuyers or investors. For one, they can buy new homes for a significantly reduced price. Mortgage borrowers who opt for Arizona short sale do not want to experience foreclosure because it can be bad for their credit rating in the long term. With an AZ short sale, defaulting homeowners simply sell their homes without ruining their credit. So, more often than not, borrowers would choose to sell their homes at big discounts. If you are an investor in a short sale Phoenix, this is definitely good news.
Now, the real benefit to buying AZ short sale homes at low prices is selling them for a much higher figure later on. Arizona short sale simply allows buyers to get better deals. Besides, banks tend to be friendly with investors who invest in short sale Phoenix or the statewide AZ short sale. That’s because such investors save the banks considerable money and effort that would otherwise be spent on processing foreclosure procedures, not to mention the headaches related to managing idle assets. On top of everything, Arizona short sale transactions belong to what many would call a niche market. You see not many people are aware of short selling. So, if you are a budding investor, short selling may be the best way to start up in the industry.
As for the defaulting homeowner, qualifying for AZ short sale is more than just having a clean credit report. With short sale Phoenix, a homeowner can also have a chance, though slim, to retain some equity in the property through the investor. As a stopgap measure against foreclosure, an AZ short sale allows a homeowner to start a new life, financially that is. By helping a homeowner avoid the stigma of foreclosure, an AZ short sale can rebuild one’s reputation and maybe even get a new home.

Greed of Short Sale Investors

admin — Sun, 31 Jan 2010 14:23:58 +0000

The first question is usually not about the investors’ greed, but about how they are screwing the home buyer. Real estate agents will defend that they have a right to get their client the best deal possible. I like that. That’s what they should do. The issue then becomes what is the best deal they can get on their own, not what is the best deal an investor, who either is, or has, experienced negotiators and integral knowledge of how the short sale process works. So even though an investor provides the acceptable short sale discount in a timely fashion (as most buyers are either relocating or moving out of a previous place of residency and likely have just a couple months of a window to find a new place to live), the buyer should be entitled to this discount.WRONG!

If it was up to a real estate agent, and I don’t blame them for not being any more proficient at negotiating short sales, the negotiation process would take between 3 and 12 months and would result in a much higher short sale payoff amount. Thus, the buyer would pay more. Of course this is not the agents fault, they are getting paid less than full commission and they have to do two jobs. And I have never found a buyer that wanted anything less than a good deal. A good deal, then, would involve getting a house for less than it’s worth, right? And therefore, they are trying to profit immediately when purchasing a home, no different than what an investor is trying to do. If they weren’t trying to make money on their purchase/investment then they should be happy at whatever price they feel is fair. Yet, this is not the case. Buyers = greedy.

The second fault of the greedy investor is that he is “screwing” the lender out of money. This is really only an issue because tax payer money is going to them. I can tell you this, if no investor made another dollar on a short sale, these banks would still take all of the money that was offered to them. And in return they don’t lend it out, and rarely help homeowners stay in their property for more than a year. Remember that these are the same people who developed “subprime loans” and “predatory lending” in order to get more money in a seemingly flawless economy. Lender = Greedy. The last complaint of the greedy short sale investor is that they are taking advantage of the homeowner. When a homeowner has no other option they can only short-sale their property and keep a foreclosure off of their property. The best chance of getting a completed short sale is to use an experience professional person who understands the process and specializes in negotiating short sales. This is not real estate agent. It could be an attorney, but if the homeowner can’t pay their mortgage where are they going to get their money to pay them? Even an attorney won’t negotiate a short sale as effectively as an investor.

Why? Why would they?

They get their money up front, win or lose, they get paid. Not really a win-win situation. The second part of this argument, then, is the investor exposing the homeowner to a larger deficiency judgment? If the bank were to go after the debtor/homeowner for the payoff deficiency they would first of all have to have a reasonable belief that the debtor had the money to pay them. Otherwise they’d just be wasting money on court costs and attorneys (still not working for free). Even if the lender pursues the deficiency judgment, the deficiency is always much, much less as a short-sale than it is a foreclosure and REO sale later. And if you don’t have an experienced negotiator you may never find out if your property had the opportunity to be sold via short sale. Not to mention, most short sale investors will remove themselves from the transaction if there is not enough of a spread between what they negotiate and what a buyer will pay.

You really can’t lose if you’re the homeowner, unless you allow an inexperienced short sale negotiator, or an over-worked and under-paid real estate agent to handle your short sale negotiations and you don’t successfully short sale your property before foreclosure.

How to Defend Foreclosure in Nevada?

admin — Sat, 30 Jan 2010 19:29:41 +0000

Defending Wrongful Foreclosure Actions in Nevada

[Attorney Malik Ahmad is a Nevada Licensed attorney and anything here is not a substitute for qualified legal advice. This article is just an attempt to educate people and their issues.]

Foreclosures in Nevada are on the rise, and our law office is contacted everyday by people from all walks of life inquiring about how to stop foreclosure and other foreclosure related questions. It is a complex area of laws, and we do not suggest to go alone or hire an unlicensed attorney or an out of state attorney or their production firm. A Nevada licensed attorney would be an ideal agency to handle such complex legal cases. Nevada, as we know is a non-judicial foreclosure state. It simply means that your lender does not have to go to court to get a foreclosure status against you. A simple non judicial procedure is enough to foreclose on your property.

In Nevada, a notice of intent to foreclose is followed by a notice of default which is followed by a notice of trustee’s sale. The last step, the actual non-judicial foreclosure sale, usually occurs within approximately 90 days (and in some cases longer from the filing of the notice of default. For the vast majority of loans, the Nevada non-judicial foreclosure process is an effective and relatively inexpensive method for a servicer to obtain its security. In most non-judicial foreclosures, the only court time and court costs involved are those for the usually uncontested municipal court unlawful detainer which is initiated by the servicer in order to obtain possession from former borrowers who refuse to vacate their former homes.

For a small but seemingly growing number of loans, the non-judicial foreclosure process has has almost become judicial. Increasingly, this war has been taken to courts and even in Nevada, a large number of these cases had been filed in court. This war of attrition ranges from bankruptcy, to District Courts Nevada, and to US District Court. It is not a war to stop eviction in municipal courts of Nevada. They are only mean to stop illegal detainer.

Before we go any farther, we like to outline once more the steps taken by your lender in foreclosing your property in Nevada.

Foreclosure Process in General in Nevada

Most of the loans are premised upon continuous payments to the lenders. If these payments are not timely paid, or not continuously paid, the borrowers can start the foreclosure process. The lender reviews the loan documents and determines about the occurrence of a default. Failure to make loan payments triggers this default process. Also, it is contingent upon events which have not been corrected by payments or failure of a workout package.

A trustee under a deed of trust may exercise its statutory power of sale without the judicial intervention. In Nevada, the foreclosure is mostly a statutory foreclosure. (NRS 107.080(1)). Judicial foreclosures are also permitted under Nevada law (NRS 40.430-40.450) but judicial foreclosures are not the preferred choice in Nevada for most of the lenders because of the looming danger of the right of redemption. Upon default, the initial step is for either the beneficiary or the trustee to execute a notice of breach and election to sell, which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b)). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to see must be recorded in the county in which the property encumbered by the trust deed is situated. This notice must also be mailed (notice of breach and election to sell) by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3)

Notice of Default and Election to Sell?

1.            Must describe the property

2.            Must describe the deficiency in performance of payment.

3.            May contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligations so permit (NRS 107.080(3).

4.            Within 10 days of recording and mailing the notice of default to the trustor, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who has either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by register3ed or certified mail, return receipt requested. (NRS 107.090.)

5.            Nevada laws make it immaterial whether the notice is actually received by the trustor. The notice is effective nonetheless. (Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P. Wd 462 (1971)

6.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (referred to below as “trustor or interested person”) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. (NRS 108.080(3). If the trustor other interested persons “make good” the deficiency in payment or performance within the 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRS 107.080(2)(a), (3). The 35-day period in the statute exists independently of any notice or cure periods contained the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incidents to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment (NRS 107.080(3).

What is the Procedure for Trustee’s Sale?

When three months have elapsed from the date of the recordation of the notice of breach and election to sell, the trustee may give notice of the time and place of the trustee’s sale, which notice must be given in accordance with the statutory provisions for execution sales of real property – posted notice in three public places for 20 successive days and published once a week for three consecutive weeks. (NRS 107.080(4);231.130(1)©. The trustee’s sale may be held at the office of the trustee anywhere in Nevada, even if it is not in the county where the property being sold is located. (NRS 107.080(4).

If the power of sale is exercised in compliance with the Nevada statute, the purchaser is vested with the title of the trustor, without equity or right of redemption NRS 107.080(5).

What are the Guarantor’s Rights to Notice and Subrogation?

The notice of breach and election to sell must be mailed by certified mail, postage prepaid, to each guarantor or surety of the debt at the address of each if known, or at the address of the trust property. The notice must also be mailed to any other obligor who has filed a request for a copy of the notice under NRS107.090. Failure to provide such notice would release that guarantor, surety or obligor from liability on the obligation. (NRS 107.095(1).

Under NRs 107.095(3) a guaranty, surety or other obligor is not released if the required notice is give at least fifteen (15) days before the later of the expiration of the 35-day period described in NRs 107.080 or any extension of that period by the beneficiary, or if the notice of default is rescinded before the sale id advertised.

Upon full satisfaction by the guarantor, surety or other obligor, other than the trustor, of the indebtedness secured by a mortgage or lien, the paying guarantor or obligor is entitled to enforce every remedy which the beneficiary has against the trustor, and is entitled to an assignment from the beneficiary of all of the rights the beneficiary then has by way of security for the payment or performance of the trustor. NRS 40-475 (1989). Such an obligor is also entitled to subrogation, junior only to the secured lender’s rights, in the case of partial satisfaction of the indebtedness. (NRS 40.485 (1989). These rights may only be waived by the guarantor, surety or other obligor after default. NRs 40.495(1)(1989).

What are the rights under One Action Rule?

In Nevada, a deficiency judgment can be filed under non statutory foreclosure provisions without having filed a judicial foreclosure.

What is a deed of Trust in Nevada?

The most common type of security interest in real property in Nevada is a Deed of Trust. A DOT has three parties.

Lender: It is the first party who is referred to as “Beneficiary.”

Borrower: It is the second party who is referred to as the “Maker”, or “Grantor”, or “Trustor” who conveys legal title to the property to the Trustee.

Trustee: This is the third party who holds legal title to the property.

Process: A DOT can be foreclosed in a simple process and cheaper as well. A Trustee sells the property encumbered by the DOT. All the lender needs to do in order to foreclose on a DOT is to determine that an even of default has occurred under the DOT and have the trustee conduct non-judicial foreclosure proceedings. Here, in Nevada, the trustee sale does not entail redemption. The borrower, in Nevada, does not have the statutory rights of redemption unlike the judicial foreclosure where the right of redemption lasts one year. Compare NRs 107.080(5) (no right of redemption in a foreclosure on a DOT ) with NRs 21.210 (one year period of redemption).

Determination of Default.

Your default notice also consists of a determination of default. It can be monetary or non monetary. Monetary is when it is linked to borrowers failure to pay, failure to pay property taxes, failure to pay homeowners association assessments and failure to pay special improvements and other assessments against the property. The non monetary events of default are spelled out in the notice of default and Deed of Trust as well as related loan documents. They can be failure to insure property, the failure to maintain debt service coverage ratios and waste.

Acceleration of Obligation:

A trustee under a deed of trust may exercise its statutory power of sale (commencement of foreclosure process) without judicial intervention in Nevada. NRs 107.080(1). Judicial foreclosure is also permitted under Nevada laws though seldom exercised. (NRs 40.430-40-450). They carry with them a one year right of redemption which lenders does not like it as they like to close this chapter once for all.

Steps in Foreclosure in Nevada?

1.            The beneficiary or the trustee to execute a notice of breach and election to sell which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to sell must be recorded in the county in which the property encumbered by the trust deed is situated. The notice of breach and election to sell must also be mailed by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3).

2.            The notice and election must describe the deficiency in performance or payment, and may contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligation so permit. (NRS 107.080(3).

3.            Within ten days of recording and mailing to the trustor the notice of default, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who had either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by registered or certified mail, return receipt requested. (NRS 107.90)

4.            Under Nevada law, it is immaterial whether the notice is actually received by the trustor. Turner v. Dewco Services, Inc., 87 Nev 14. 479 P.2d 462 (1971).

5.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (trustor or interested persons) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. NRS 107.080(3). If the trustor or other interested person “make good” the deficiency in payment or performance within 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRs 107.80(2)(a), (3). The 35-day period in the statue exists independently of any notice or cure periods contained in the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment. NRS 107.080(3).

6.            Nevada Revised Statutes Chapter 107 governs Deeds of Trusts. The transfer of real property may be made in trust to secure loans and other obligations. See NRs 107.020. In the event a transfer is made in trust to secure payment, the Trustee is granted a power of sale which may be exercised if an event of default has occurred. See generally NRS 107.080.

How a Foreclosure Process in Nevada is Commenced?

1.            The lender must first determine that an event of default has taken place.

2.            The lender employs the Trustee or a successor.

3.            The Trustee will prepare and record in the Office of the County of Records of the County in which the property is located a Notice of Default and Election To Sell. (NRS 107.080).

4.            The Notice of Default and Election to Sell must be mailed by registered or certified mail, return receipt requested Election to Sell must be mailed by registered or certified mail, return receipt requested and postage prepaid, to the grantor of the Deed of Trust, the person who holds title of record on the date of the Notice of Default and Election to Sell, each guarantor or surety of the debt, NRS 107.095(1), and any person who recorded a request for a Notice of Default and Election to Sell. (NRS 107.090)

5.            On the first day after the Notice of Default and Election to Sell is recorded and sent by mail to all interested parties, the borrower and the other obligors are then given 35 days to make good the deficiency in payment or performance. NRs 107.080(2)(a)(2). This essentially allows the borrower or other obligors to de-accelerate the default under the Deed of Trust and terminate the foreclosure proceedings.

6.            In the event the borrower or other party in interest fails to cure the deficiency in payment or performance, the Trustee must wait until the expiration of three months following the recording of the Notice of Default and Election to Sell (55 days after the 35 day reinstatement period expires) before giving notice of the time and the place for the sale of the real property (NRS 107.080). The notice of the time and place for the sale of the real property must be published in accordance with Nevada’s execution statutes.

Requirements of Publication for the Notice Under Nevada Laws

Nevada statute requires the following publication of the notice of the date, time and place of the sale:

(1) Personal service or service by registered mail to the last known address of each person entitled to Notice of Default and Election to Sell;

                (2) The posting of a similar notice particularly describing the property , for twenty days successively, in three public places of the township or city where the property is situated in or where the property is to be sold; and

                (3) Publishing a copy of the Notice three times, once each week for three successive weeks, in a newspaper, if there is one the county. (NRS 21.130(c).

                (4) In addition to the notice required by Nevada’s execution statutes, the Trustee is required to, at least twenty days before the date of the sale, deposit in the United States mail and envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the Notice of time and place of sale, addressed to each person who has recorded a Request for Notice of Default and Sale. See NRS 107.090(4).

                (5) If the Trustee fails to give any person liable to the beneficiary or any other person who has requested a Notice of Default and Sale the required notices, that person may be released of its obligation to the lender. NRs 107.095.

                (6) NRs 107.080(4) allows the Trustee to conduct the sale at the Trustee’s office.

                (7) At the foreclosure sale, the Trustee may sell the real property by public auction. Generally, the lender will provide the trustee with a minimum credit bid before the foreclosure sale. The amount of the credit bid may be for the full amount of the debt owed to the beneficiary or only a portion of what is owed to the beneficiary. Any person or entity may attend the foreclosure sale and bid for the real property.

What is Nevada’s “One Action Rule”?

Nevada has adopted a one-action rule. It provides that there may be only one action to collect a debt secured by a mortgage or other lien. The Nevada One Action rules provides: (NRs 40.430(1)-(3).

                1.            There may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provision of this section and NRS 40.433 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale or the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRs 40.462.

                2.            This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred.

                3.            A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

What is a Wrongful Foreclosure Action?

A wrongful foreclosure action is an action filed in superior court by the borrower against the servicer, the holder of the note, and usually the foreclosing trustee. The complaint usually alleges that there was an “illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust.” Munger v. Moore (1970) 11 Cal.App.3d. 1. The wrongful foreclosure action is often brought prior to the non-judicial foreclosure sale in order to delay the sale, but the action may also be brought after the non-judicial foreclosure sale.

A borrower in a wrongful foreclosure can allege that the amount stated as due and owing in the notice of default is incorrect for one or more of the following reasons:

-         an incorrect interest rate adjustment,

-         incorrect tax impound accounts,

-         misapplied payments,

-         a forbearance agreement which was not adhered to by the servicer, unnecessary forced place insurance,

-         improper accounting for a confirmed chapter 11 or chapter 13 bankruptcy plan.

-         Wrongful foreclosure actions are also brought when the servicers accept partial payments after initiation of the wrongful foreclosure process, then continue with the foreclosure.

-         Companion allegations for emotional distress and punitive damages usually accompany any wrongful foreclosure action.

-         Also, a loan modification process was initiated, but stopped in bad faith by your lender.

-         Deceptive trade practice under Nevada Laws.

-         Violations of TILA

-         Violations of RESPA

-         Violations of HOEPA.

-         Contractual Breach

-         Intentional infliction of emotional distress

-         Negligent infliction of emotional distress

-         Wrongful foreclosure

-         Promissory Estoppel.

Damages available to a borrower in a wrongful foreclosure action are an amount sufficient to compensate for all detriment proximately caused by the servicer or trustee’s wrongful conduct. Damages are usually measured by value of the property at the time of the sale in excess of the mortgage and lien against the property. Munger v. Moore (1970) 11 Cal.App.3d. 1. Additionally, the borrower may also obtain damages for emotional distress in a wrongful foreclosure action. Young v. Bank of America (1983) 141 Cal.App.3d 108; Anderson v. Heart Federal Savings & Loan Assn. (1989) 208 Cal.App.3d. 202. Further, if the borrower can prove by clear and convincing evidence that the servicer or trustee was guilty of fraud, oppression or malice in its wrongful conduct, punitive damages may be awarded.

How Can a Wrongful Foreclosure Action Delay Recovery of the Security?

A wrongful foreclosure suit filed in District court will not necessarily delay a servicer’s recovery of its security. The companion filings to such a suit (notice of pending action, injunction and/or motion to consolidate) however can delay a servicer’s ultimate recovery. Delay caused by a wrongful foreclosure action can be anywhere from forty-five days to two years.

A notice of pending action (“lis pendens”) is the most common companion to a wrongful foreclosure action. A lis pendens is recorded in the county in which the real property security is located at the time the wrongful foreclosure action is filed. The only requirement for a lis pendens to be recorded is an attorney’s signature that the action which is being noticed actually involves a real property claim. The purpose of the lis pendens is to put all third parties on notice that the borrower and the servicer are litigating over the real property security. Once a lis pendens is recorded, no title insurance company will issue a title insurance policy unless and until the lis pendens is removed. Although the servicer may “bond around” the lis pendens without title insurance, the real property security is virtually inalienable.

While a lis pendens can be filed at any time in the foreclosure process, a borrower applies for an injunction prior to the foreclosure sale with the intent of keeping the foreclosure sale at bay until issues in the lawsuit are resolved. The lawsuit can take anywhere from ten to twenty-four months. Generally, an injunction will only be issued if it appears to the court that: (1) the borrower is entitled to the injunction; and (2) that if the injunction is not granted, the borrower will be subject to irreparable harm. Like an action to expunge a lis pendens, a borrower’s application for an injunction is essentially a “mini-trial” on the merits.

There are important issues which are considered in nearly all injunctive relief action applications is the amount due and owing on the note and deed of trust. Again, it is imperative in any injunctive hearing that the servicer provide a detailed analysis of the amount it contends is due and owing on the note and deed of trust at issue. Sometime it is not possible for your servicer and they are unable to provide a breakdown of the amounts due and owing on the note and deed of trust at issue. Again, sometime they only can provide insufficient information to refute the borrower’s allegations, it is likely the injunction will be issued. Now comes the question of producing a bond from the borrowers, and making timely payments. In many cases, judges make their own laws when they experience heart wrenching stories from the borrowers, and their sorrowful tales have a deeper impact upon the judges, the issue injunctions. Of course tough standards are required by Nevada judicial system in issuing these injunctions but sometime the judges issue minimal bonds and little or no debt service requirements. This worst case scenario translates into a servicer being unable to sell the security and receiving no payments on the underlying debt during the life of the lawsuit. In reality, judges are loath to modify an injunction after it is issued and prior to a decision on the merits. Once an injunction with little or no debt service or bond is in place, the wrongful foreclosure suit will be a long and expensive process because the borrower has lost all incentive for a quick resolution of the action.

Another way borrowers delay a servicer’s recovery of its security through a wrongful foreclosure action is by consolidating their wrongful foreclosure action with their unlawful detainer action. Asuncion v. Superior Court (1980) 108 Cal. App. 3d 141. The Asuncion case which is usually relied upon by borrowers for consolidation contains an egregious fact scenario including clear fraud in the inducement of the loan. Judges however, do not limit the application of Asuncion to cases where fraud is alleged by the borrower. In applying Asuncion, a court can allow the unlawful detainer suit to be consolidated with the wrongful foreclosure action if there is a mere similarity of issues in the cases.

If the borrowers plays all the cards tactfully the final disposition of the case can be delayed anywhere from ten months to two years.

Nevada law provides many unique procedural remedies which may be employed in battling a wrongful foreclosure action. Judicious use of these procedures by counsel and close coordination between counsel and client can lessen the pain of defending a wrongful foreclosure action.

Scottsdale Golf Vacation Packages

admin — Sat, 30 Jan 2010 10:30:23 +0000

Lee Trevino, well known for his quips and sayings, once said of desert golf, “It’s like a voyage into the unknown”. The first desert course, Desert Highlands, was designed and built by Jack Nicklaus and Scott Miller in the mid 1980’s, and it was home to the first “skins game”. It also was the beginning of the building boom of golf courses in Arizona.

Taking advantage of the desert terrain, approximately 350 new golf courses have been built since that time.

Most golfers are looking to play a different kind of golf course when they plan their trip to Scottsdale, enough already of the traditional courses that they play every weekend back home…and desert courses fill the bill. The game is the same, whether it’s on a tree-lined fairway or meandering along a desert fairway. The maximum allowance for turf is 90 acres, so there’ll be a lot of desert around you…plus arroyos (dry washes – hopefully), critter warnings (maybe rattlesnakes, possible roadrunners), the jumping chollas (they will reach out and grab you, just brush against one and you’ll have enough cactus spines on you to last the day) and of course the giant Saguaros that will gobble up your ball if it goes that way. Didn’t we tell you it would be an adventure?

Scottsdale and its desert courses are a “must-play” for a great golf vacation. We-Ko-Pa, built by Native Americans over in Fountain Hills is probably the most scenic course you can play anywhere. Four Peaks Mountain (their sacred mountain) is visible from most areas of the course, and the greens are set in box canyons, this course is beautiful and a public golf course to boot. The Boulders of course is set among 1,000,000 year old rocks to give you pause.

The Raven Golf Club at Verrado uses natural desert terrain and plays in and around the washes. The White Tank Mountains make a powerful backdrop.

Short Sale 101

admin — Sat, 30 Jan 2010 04:44:24 +0000

This article will attempt to address the following:
1. Define a short sale
2. Talk about the different ways it can come about and be structured
3. Talk about how it’s different that foreclosure or bankruptcy
4. Talk about the implications for the seller
5. Talk about the implications for the buyer
6. Address investor related questions on capitalizing on short sales (which you will soon find based on the definition is not really what you investors are looking for)
7. If your question is not answered in the article, see the Short Sale FAQ.
Definition:
A short sale is an “arrangement” between the current owner of a home and the bank that lent them the money to buy their home to accept an offer for less than the total amount owed to pay off the home. The “deficiency” is the difference between the amount owed and what the bank collects at the short sale.
Although, the “arrangement” can take many different forms, there is no other definition of a short sale. I say this because many realtors and some investors simply throw the term around as if it meant “a sale under market value.” No. A bank owned (foreclosed) house is not a short sale. A seller deciding to lower their price and take less profit is not a short sale. An old lady that owns her home free and clear, selling a $150k home for $75k, IS NOT A SHORT SALE. For it to be a Short Sale, someone must be getting “shorted.” Either the seller, or the bank. I will explain how both of those happen in more detail presently.
Free Foreclosure List
Another important definition of a short sale is how it differs from foreclosure. In foreclosure, the homeowner falls way behind on their payments and the bank repossesses the house and sells it. In almost all cases, THE BANK PURSUES THE HOMEOWNER FOR THE DEFICIENCY!!! No one seems to know or believe this, but just ask someone who has gone through foreclosure, they will tell you the only way out of this was to file bankruptcy.
How It Can Happen – The Arrangement
Most short sales arise when a seller owes more on their house than they can sell it for (upside down). The owner of the home then attempts to make an arrangement with their lender to sell the house for less than is owed.
The term “arrangement” was used in the definition and is intentionally broad because the arrangement depends on the bank that holds the loan. Though there are general practices, every bank does it differently. This article will give you the most common arrangements, but if you take part in a short sale, it’s crucial you assume nothing until you have the bank’s policies in writing.
There are some overriding principles:
1. There is no such thing as a free lunch. This is not some dream come true alternative to foreclosure where the money you owe magically disappears. The deficiency will be accounted for. The deficiency can be 100% loaned to the seller in the form of a promissory note, which they then must repay. If any portion of the deficiency is “written off” meaning that the bank eats it, you can be sure that they will report it as 1099 income to the seller or even as a judgment which will show on your credit for 10 years (not 7 years, 10 years).
2. It is a cumbersome process. If you are entering into a short sale as a buyer or seller, don’t expect it to go as quickly as any other sale. There’s a lot of “back and forth”.
3. The employees of the lender that are negotiating the sale ARE NOT there for the benefit of the seller. Their only goal is to collect as much money possible for the lender and they will use whatever means necessary. You can be sure they will misrepresent their own policies and flat out LIE to the seller in order to intimidate and scare them into paying more money. If you think I’m exaggerating, the joke will be on you.
For instance, I was once told by a lender negotiating a short sale that, as a policy, they don’t “write off” any of the deficiency and that the seller would have to have a promissory note for $40,000. This lender also told the seller that their hands were tied and this decision came directly from the investor who provides the money for the lender. The lender also said there is absolutely no negotiation on the amount owed, either pay the deficiency, or they will foreclose. The lender made the promissory note very manageable (20 years 0%) so that the seller would be more enticed to just roll over.
But the seller called the lenders bluff. The seller then provided a letter from an attorney stating they would qualify for a bankruptcy, thus rendering the lender incapable of collecting anything. That same day, the lender called the seller saying they would reduce the promissory note and write off $30,000 of the debt! It would have to be reported as 1099 income, but it would not have to be paid. Amazing change of policy! Then the seller saw what was happening and just said, “no thanks, we don’t want to owe you anything, we’ll just go ahead with the bankruptcy.” Two days later the seller received a written offer that the lender would completely forgive the debt and simply report it as 1099 income! Wow!
The moral of the story is that the lenders will LIE to obtain their money. Many of the managers of the collections departments are paid on COMMISSION on how much they collect. Just imagine if that seller had rolled over on the first offer! That employee would have been responsible for keeping $40,000 of his company’s money with one five minute phone call!
One other important thing to remember is that if the lender gets the property back (i.e. short sale doesn’t go through), they have to put it up for auction. This creates the risk that additional money will be lost if the house doesn’t sell for what it’s worth. In the case of the example, the short sale offer was for $550,000, and the amount owed was $590,000. The seller faxed in evidence to the lender that most similar houses in the area were now selling for $480,000. So this enabled the seller to make the argument that it was a much more prudent risk to write off $40,000 instead of running the risk of losing $110,000. This enabled the seller’s representative to intimidate the employee of the lender asking him “did he really want to be responsible for losing his company $110k, when he had the option, right now, to settle for 40k?”
If it seems like I know a lot about “this example” it would be because I was the mortgage broker for the people making the offer and seller of the property happened to be my wife.
The Details of the Arrangement
Different banks have different policies. The best case scenario is to get a bank that actually “writes off” the deficiency. All that happens here is that the seller has some minor derogatory credit reporting, but doesn’t actually owe the bank any more money. This credit reporting can consist of anything from “creditor settled for less than the amount due” all the way to “foreclosed.”
As the example noted, many banks will do a promissory note for the deficiency.
Some banks are stupid enough to require that the deficiency be paid at closing. Think about it. This does no good because it’s the same thing as the seller selling their house without doing a short sale and simply bringing cash to the table. If a bank tells as seller they need to bring cash to the table in a short sale, they are either idiotic, or more likely LYING.
In cases where the money is “written off” it’s important to understand that the lenders will never actually “write something off.” In most states (I don’t know the law in every state), the lender has the ability to show any deficiency as 1099 income for the seller. All this really means is that the seller has to pay taxes on that income. Depending on one’s situation, it could mean that people that are dependent on some form of aid because of “low income” will have some explaining to do come tax time.
Another way that the deficiency can be written off is in the form of a judgment. This will often occur in conjunction with the 1099 reporting. It might say something on the seller’s credit report such as “judgment filed against John Doe in the amount of $xx,xxx by ABC lender.” This will appear in the “public record” section of the seller’s credit report for 10 years (7 years is only for late payments, 10 years for public record info, don’t argue, trust me). It can either show up as satisfied or unsatisfied. Satisfied is obviously better because it means that the worst thing that can happen is that the lender will report 1099 income.
Unsatisfied could be a problem, because it means that a court has found in favor of the lender to collect the deficiency from you. Now they still might simply do the 1099 thing, or they might try to collect it from you. They can keep trying to collect it from you until they get it. They can garnish your wages. Your only hope then is that you qualify for a chapter 7 bankruptcy.
This brings up an important note. NEVER EVER ASSUME THAT A DEBT THAT YOU OWE A LENDER IS GONE UNLESS YOU HAVE THE DETAILS OF THE RELEASE OF THAT DEBT IN WRITING. For instance, someone who had done a short sale had a first and a second loan. The bank agreed to the short sale, which ended up being enough to pay off the first loan, but not the second. The seller had assumed that because the bank agreed to the short sale that they wouldn’t have to worry about the deficiency from the second mortgage. Now they are surprised that they are being pursued for the deficiency. REMEMBER, the lender(s) will always want ALL their money accounted for somehow. NEVER assume something is written off unless you have a formal, signed, written, unconditional release of lien and/or judgment from the lender specifically stating that no further action to collect this debt will be taken.
How did we get to this place in the first point?
A short sale can come about for many different reasons. In my wife’s case, she was the owner of the house and had been making payments. We bought an investment property and put it solely in her name to protect our family in the event that the market took a turn for the worse. It did. We owed 590k, but the best offer we had after 6 months was 550k. The short sale prevented her from having to file bankruptcy, and there was no derogatory credit reporting because there were no late payments made.
Despite popular belief, YOU DO NOT HAVE TO BE BEHIND ON YOUR MORTGAGE TO REQUEST A SHORT SALE. You just have to demonstrate that your house can’t be sold for what you owe.
In other cases, short sales happen when a seller can’t afford to make their payments and is nearing foreclosure or bankruptcy. It makes life much more complicated if you are living in the house in question. The bank’s ability to scare you is much greater in that case. In this case, a short sale is only slightly better than the alternatives. You will still lose your house, and your credit is still destroyed just because you’ve made 4-5 late payments on your mortgage.
Despite popular belief, A BANKTUPCY, FORECLOSURE, OR REPOSSESSION DO NOT HURT YOUR CREDIT AS MUCH AS THE MULTITUDE OF LATE PAYMENTS THAT OFTEN LEAD UP TO THEM!!!!! I just cannot stress this enough. People think that a bankruptcy damages their credit beyond repair in and of its own accord. I’ve had many clients file bankruptcy with 750 scores and no late payments only to have their score drop to 680. It’s the clients with 20+ late payments that are having their credit hurt.
A final note on how the short sale can come about… Most banks will not agree to a short sale in writing until you have a formal offer. You can simply call your bank and ask them if you could do a short sale at a certain price and they might say “sure, no problem, we’d be happy to facilitate that offer.” BEWARE. That doesn’t mean a thing. Before your short sale is APPROVED, you’ll have to submit an application, hardship letter, financial statements, tax returns, pay stubs, the purchase agreement from the buyer, a HUD statement from the pending transaction, payoff letters from all lenders involved, and several other things depending on the lender.
Once this huge packet of information is submitted to the lender, you will most likely hear back in 1-4 weeks on the TERMS of their “approval.” Be warned their approval will most likely be thinly disguised attempt to collect their debt and will almost never be the “write off” you were hoping for.
Investors
If you’re an investor, by now, I hope I’ve scared you off. Short sales are not some magic way for you to find properties under market value. They are a tool for sellers that owe too much on their homes to sell them at market value.
What you are looking for (or should be if you’re not) are sellers that owe far far less on their homes than what they’re worth. Sellers who don’t care how much they earn because they’re either desperate or have so many houses they don’t care.
Still if you see a house you want, there is one way that a short sale could come into play. Say there’s a distressed property that you’d pay 100k for that you know would be worth 180k if it was fixed up a bit. The seller doesn’t have the money to do it and the house is either vacant or they want out of their situation. In this case, if the seller happens to owe 130k (around there), and you will only pay 100k, AND the seller hasn’t had any viable offers because of the level of distress on the property, then a short might be just what the doctor ordered.
Don’t be unethical and take advantage of people. You’re only going for short sales if the person WANTS to sell their house and no one else but you will buy it because you’re not afraid to rehab a house that’s smells bad and is falling apart.
Conclusion
Again, a short sale is not a magic cure. It’s also not some mystical solution that only an elite few know about. If you’re curious about selling your house as a short sale, you should contact your lender and get information in writing. It’s usually not easy, and hardly ever will truly “win.” But in some cases, it can leave you much better off than the alternative of foreclosure and bankruptcy. If you’re an investor, there are much better ways to obtain undervalued homes.

A Summary of Foreclosure Laws by State

admin — Fri, 29 Jan 2010 19:26:12 +0000

Foreclosure Laws of Individual States

We are providing information about state foreclosure laws. This information is designed to help you understand the process in each state. However, legal information is not legal advice. We are not giving legal advice. The laws of every state are different and frequently change. If necessary, seek legal or professional advice according to your situation.

We have elected to summarize each state’s laws. For a more in-depth analysis of Foreclosure Laws of Individual States, please visit this website or call 800-437-2185for a free consultation on your foreclosure prevention options.

CAUTION: Information on the Internet for the most part is incorrect! Many sites that are publicizing Foreclosure Laws have incorrect information. We went through lengthy and timely research to bring you the most up- to-date and correct information available.

MORTGAGE AND DEED OF TRUST STATES

Below you will find each state according to whether they are Mortgage, Deed of Trust or both.

Mortgage States

Alabama Louisiana North Dakota Arkansas Maine Ohio Connecticut Massachusetts Oregon Delaware Michigan Pennsylvania Florida Minnesota Rhode Island Hawaii New Hampshire South Carolina Indiana New Jersey Vermont Kansas New Mexico Wisconsin New York

Deed of Trust States

Alaska Mississippi North Carolina Arizona Missouri Virginia California Nevada Washington, DC

States that use both Deeds of Trust and Mortgages

Colorado Montana Texas Idaho Nebraska Utah Illinois Oklahoma Wyoming Iowa Oregon Washington Maryland Tennessee Georgia West Virginia Kentucky

FORECLOSURE SUMMARIES

The following summaries give some information on individual state foreclosure laws. Timelines will vary depending on specific circumstances and each situation. The timelines noted within are based on uncontested actions and assume no delays. They give the time for the sale, then the running totals for various procedures, until the end, when the longest time possible for the entire foreclosure process ends . Often, these times are longer than normal in that redemption doesn’t often occur. However, delays do – so keep this in mind – every foreclosure is a unique situation, timelines will vary from foreclosure to foreclosure, and from state-to-state. All foreclosures must be conducted under GSE guidelines.

Alabama Foreclosure Laws

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 49-73 days – sale held; 30 – 60 days if NOD is not required.

• Right of Redemption: Yes (12 months)

• Deficiency Judgments Allowed: Yes

Alaska Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 105-108 days – sale held; 108-111 deed recorded

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Arizona Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 115 days (non- judicial)

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Arkansas Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes, most circumstances

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 90 days

• Right of Redemption: Ends at sale

• Deficiency Judgments Allowed: Yes

California Foreclosure Laws

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 120 days

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Colorado Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes (usual)

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 91 days – sale held; 166 redemption expires; 173 deed recorded

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Connecticut Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 90 days – default entered;180 redemption expires

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

D.C. (Washington District of Columbia)

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust

• Timeline: 47 days – sale held; 48 deed sent for recording;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Delaware Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 170-210 days – sale held; 200-300 confirmation of sale;

• Right of Redemption: No

• Deficiency Judgments Allowed: No

Florida Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 135 days – sale held; 150 certificate of title issued;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Georgia Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes (usual)

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 37 days sale held; 48 deed sent for recording;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Hawaii Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline (JF): 220 days – auction; 260 confirmation; 320 conveyance;

• Timeline (NJ): 160 days – auction; 195 conveyance;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Idaho Foreclosure Laws

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust

• Timeline: 150 days – sale held; deed recorded

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Illinois Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 300 days – sale held; 345 redemption period expires; deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Indiana Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 251 days – sale held; 266 redemption period expires; deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Iowa Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 160 days – sale held; 180 redemption period expires; deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: No

Kansas Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 130 days – sale held; 210 – 495 redemption period expires; 230 – 515 file closed;

• Right of Redemption: Yes (3 to 12 months)

• Deficiency Judgments Allowed: Yes

Kentucky Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 147 days – sale held; 177 sale confirmation; 198 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Louisiana Foreclosure Laws

• Judicial Foreclosure Available: Yes (Executory and Ordinary Process)

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline (EP): 180 days – sale held; 209 deed recorded;

• Timeline (OP): 240 days – sale held; 269 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Maine Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 240 days – sale held; 270 deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Maryland Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 46 days – sale held;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Massachusetts Foreclosure Laws

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 75 days – sale held;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Michigan Foreclosure Laws

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of T rust, Mortgage

• Timeline: 60 days – sale held; 90 – 425 redemption expires, deed recorded;

• Right of Redemption: Yes (6 months is common)

• Deficiency Judgments Allowed: Yes

Minnesota Foreclosure Laws

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Mortgage

• Timeline: 90 – 100 days – sale held; 270-280 redemption expires;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Mississippi Foreclosure Laws

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 90 days – sale held;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Missouri Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 60 days – sale held; 61-65 deed recorded;

• Right of Redemption: Yes (rare and difficult)

• Deficiency Judgments Allowed: Yes

Montana Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 150 days – sale held; 153 deed recorded; 163 possession transferred;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Nebraska Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Mortgage

• Timeline (JF): 142 days – sale held; 176 deed recorded;

• Timeline (NJ): 111 days – sale held; 121 deed recorded;

• Right of Redemption: Judicial 30 days; Non-judicial – no;

• Deficiency Judgments Allowed: Yes

Nevada Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline (NJ): 116 days – sale held; 118 trustee’s deed upon sale recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

New Hampshire Foreclosure

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 59 days – sale held; 75 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

New Jersey Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 270 days – sale held; 280 deed recorded; 290

• Right of Redemption: Yes (10 days )

• Deficiency Judgments Allowed: Yes

New Mexico Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Mortgage

• Timeline: 180 days – sale held; 195 deed recorded; 225 redemption expires;

• Right of Redemption: Yes (30 days )

• Deficiency Judgments Allowed: Yes

New York Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline (New York City): 445 days – sale held;

• Timeline (Outside the City):335 days – sale held;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

North Carolina Foreclosure Law

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 110 days – sale held; 120 deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

North Dakota Foreclosure Law

• Judicial Foreclosure Available: Yes (usually)

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 150 days – entry of judgment to sale;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Ohio Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 217 days – sale held; until redemption expires and deed is recorded depends on county;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Oklahoma Foreclosure Law

• Judicial Foreclosure Available: Yes (usually)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 156 days – sale held; 186 sale confirmed; 201 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Oregon Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes (usually)

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 150 days – sale held; 160 trustee’s deed recorded;

• Right of Redemption: Rare

• Deficiency Judgments Allowed: Yes

Pennsylvania Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 270 days – sale held; 300 redemption expires and deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Rhode Island Foreclosure Law

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 74 days – sale held;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

South Carolina Foreclosure

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instrument: Mortgage

• Timeline: 150 days – sale complete; 180 redemption expires and deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

South Dakota Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes (Rare)

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 150 days – sale held; 340 redemption expires and deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Tennessee Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes (very rare)

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 40-45 days – sale held; 50-55 deed recorded

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Texas Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Home Equity Loan

• Timeline: 97 days – sale held; 102 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Utah Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instrument: Deed of T rust, Mortgage

• Timeline: 138 days – sale held; 139 deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Vermont Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 95 days – default judgment enters; 275 redemption expires and deed recorded;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Virginia Foreclosure Law

• Judicial Foreclosure Available: Yes (rare)

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of T rust, Mortgage

• Timeline: 45 days – sale held; 60 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Washington Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of T rust, Mortgage

• Timeline: 135 days – sale held; 140-150 deed recorded

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Washington D.C. Foreclosure Law

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust

• Timeline: 47 days – sale held; 48 deed sent for recording;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

West Virginia Foreclosure Law

• Judicial Foreclosure Available: No

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of Trust, Mortgage

• Timeline: 60-90 days – sale held; 120 deed recorded;

• Right of Redemption: No

• Deficiency Judgments Allowed: Yes

Wisconsin Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: No

• Primary Security Instruments: Deed of T rust, Mortgage

• Timeline: 290 days – sale held; 300 confirmation of sale; 305 deed recorded; 315 final title;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: Yes

Wyoming Foreclosure Law

• Judicial Foreclosure Available: Yes

• Non-Judicial Foreclosure Available: Yes

• Primary Security Instruments: Deed of T rust, Mortgage

• Timeline: 60 days – sale held;

• Right of Redemption: Yes

• Deficiency Judgments Allowed: No

Legal Defenses to Foreclosure

admin — Fri, 29 Jan 2010 17:46:09 +0000

The following are legal defenses to foreclosure to beat the bank:

1. Truth in Lending Act (TILA) violations enabling rescission. If your loan is a refinance, the bank must have provided you a set of disclosures at the time of closing. If these disclosures are inaccurate, the loan is statutorily rescindable under TILA. For example, in a foreclosure action, the finance charge must have been accurate within $35 or the loan may be rescindable. This means the loan is cancelled and all money paid to the lender is refunded.

2. Truth in Lending Act (TILA) violations enabling damages. If you purchased the property with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money damages to offset the foreclosure.

3. Home Ownership and Equity Protection Act (HOEPA). This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.

4. Failure to Provide a Correct Notice of the Right to Rescind. There is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.

5. Breach of Contract. Many times the lender will do things that are unfair or unjustified before starting the foreclosure process. Just as you have an obligation to pay the mortgage, the lender has a responsibility not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.

6. Real Estate Settlement Procedures Act. This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees. It enables damages, and sometimes rescission if the error triggers TILA.

7. Fair Debt Collection Practices Act. This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt. A failure to follow this law enables statutory damages and attorney’s fees.

8. Fair Credit Reporting Act. This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. Violations of this act also enables damages and attorney’s fees. Punitive damages might be available under this act.

9. Real party in interest. This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.

10. Unconscionability. This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.

11. Failure to state a claim upon which relief can be granted. This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.

12. Failure to establish conditions precedent. Want to get a foreclosure action thrown out of court right away? Use this defense that attacks the lender’s pre-foreclosure processes.

13. Failure to comply with FHA pre-foreclosure requirements. FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.

SHORT SALE TIPS FOR GOODYEAR ARIZONA RESIDENTIAL PROPERTIES

admin — Mon, 11 Jan 2010 17:27:12 +0000

These tips are for your Short Sale education, in all legal transactions seek a Goodyear Arizona Short Sale Realtor or your personal attorney.

Rule 1: Understand fully what leverage you have, if any. Arizona’s anti-deficiency laws may apply to your loan. These laws can be beneficial to deny and lender demands for a seller/borrower contribution at the sale closing. If the loan is covered by Arizona’s anti-deficiency laws, the lender is unable by law to seek compensation if the home goes into foreclosure. An experienced borrower of short sale realtor will use this law to enhance a short sale offer to the mortgage company. As all loans are different, this law may apply differently in your scenario, so know the laws and how it can affect your loans on each Goodyear AZ property that is in short sale negotiations.

Rule 2. For rapid Short Sale success, always seek lender’s express release of liability as a condition to the short sale, even if your loan would be under the Arizona’s Anti-Deficiency laws. Attempt to receive this Release in writing from each lender. If you are unable to receive a liability release, fully understand what liability you may have to cover as a borrower following a short sale, before you sign the final contracts. Arizona law should prevent the borrower from being liable from any recourse from the lender following a short sale.

Rule 3. Understand the basic requirements and short sale process for starting the short sale. Almost all lenders will ask for a borrowers complete financial information. Bank Statements, 2 year tax returns, current W-2’s, company Profit and Loss statements, and etc. Also, most lenders will require a borrower to declare a hardship as a condition before approval of short sale. What each lender requires to be eligible for consideration as a hardship will differ per lender, but can usually be discovered online or with a call to the lending agency. If you discover that their may be liability after a short sale, that borrower may rethink about the liability requirements and whether a short sale would be the most proper thing to do.

Rule 4. Locate a skilled, experienced Goodyear Short Sale Negotiator. The short sale endeavor can be a lengthy, time consuming process. Without an experienced real estate agent or attorney, the process can be very overwhelming and stressful. However, despite the difficulties, if the short sale is the right process for you, don’t give up if met with resistance or delay throughout the complete process of the short sale. Even an experienced real estate agencies and attorneys will have difficulty if there is an unreasonable lender or loss mitigation representatives.

Rule 5. In the short sale process their will be a lot of paperwork, agreements and documents that will be confusing at best. Make sure that you understand each document that you are signing or agreeing. The standard ARR short sale listing agreement along with the Short Sale Addendum will require any seller to provide information that is requested by each lender in the short sale application. Also, the Short Sale Addendum will require the seller to put all effort into getting a Short Sale approved.

Rule 6. Lender’s Approval Terms. The majority of lenders will require a seller to sign the short sale approval or agreement. The conditions and agreements used by each lender will vary widely and should be thoroughly studied. Lenders will usually be silent on their deficiency issues. Other lenders will boldly try to get the borrower to agree to liabilities for a deficiency following a short sale, even if the loan would be under the Arizona Anti-Deficiency provisions. Some short sale approvals will require a borrower to sign an unsecured promissory note. Either way the borrower must understand what each process will require, and what liabilities will be expected in the lender’s short sale agreements and related documents.

Rule 7. Carefully observe current and future legislation. On April 5, 2010, the federal Government’s Home Affordable Foreclosure Alternatives program will come in to effect and will change short sale and deed in lieu programs. The new law will make lenders unable to seek a deficiency following a qualifying short sale or deed in lieu of foreclosure.

Rule 8. Tax Liabilities. Understand how a short sale agreement will apply to your federal income and tax requirements. The lender will issue a 1099C at the acceptance of a short sale agreement. Unless the borrower will be have recognized exceptions to cancel the debt income, a borrower WILL be held liable for the cancelled debt. A prudent borrower will verify which conditions will be applicable for your tax filings before the short sale process is completed.