On January 7, 2011, the Massachusetts Supreme Court, in U.S. Bank National Association v. Ibanez, held that a foreclosure sale was void if the lender could not prove that it had the power to foreclose at the time of the foreclosure. In Ibanez, the court held that the lender failed to prove that it had the right to foreclose at the time of the sale and it questioned whether it ever obtained the right to foreclose.

Like California, Massachusetts has a foreclosure statute that allows lenders to foreclose without court approval. In the Ibanez case, the bank foreclosed on the property and a year later, sued to clear title and validate the foreclosure sale. During that suit, which the homeowner did not contest, the lender was unable to demonstrate that it had received an assignment of the deed of trust prior to the foreclosure, or in fact, that it ever received a valid assignment. While this case is a big win for debtors in Massachusetts, its impact in California is likely to be minimal.

First, as a matter of law in Massachusetts, the controlling document as to ownership of the loan is the deed of trust. The opposite is true in California, where the promissory note is the controlling document. In Ibanez, the Court noted that the lenders were able to show that they held the promissory note. As such, if the same facts occurred in California, the Court would likely have upheld the foreclosure.

Second, the Massachusetts Court set an incredibly low standard for lenders. It stated that it was only seeking some document that showed an assignment of the Deed of Trust by the original lender and that the assignment did not even need to be recorded. Any showing by a lender that it was the owner of the note should be sufficient, even if the Ibanez holding is adopted in California. It seems unlikely that lenders will continue to make the same mistakes that they have in the past with the sloppy recordkeeping.

It will be interesting to watch whether California follows Massachusetts’s lead in this area. If California does rule that the foreclosures are void, it would make it substantially easier for Plaintiff’s to overcome the Tender Offer rule. (See Julia Wei’s Article on Foreclosure Litigation for a thorough analysis of the issues)

Practice Notes
• If you are a bank, this ruling should not have a substantial impact as it merely requires some documentation that the foreclosure was proper. If you are a homeowner, while this may lead to setting aside the foreclosure, it will not grant you the home free and clear of the loan. The lender would merely have to foreclose again.

Henry Chuang is an attorney with The Law Office of Peter N. Brewer. The firm serves the legal needs of homeowners, real estate and mortgage brokers, agents, brokerages, title companies, developers, investors, other real estate professionals and their clients. Mr. Brewer and his firm also represent clients in debt collection, breach of contract matters, and other litigation and transactional work. The firm’s client range from homeowners, brokers and lenders based in Santa Clara County, San Mateo County, San Francisco County, as well as throughout other counties in California. You can contact us at: 350 Cambridge Avenue, Palo Alto, CA 94306, Ph: 650/327-2900, Fax: 650/327-5959, or on the web at: http://www.brewerfirm.com

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Foreclosue List

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Property Foreclosure

Homeowners who’ve fallen behind on their bills are typically in a state of strain and high anxiety, with worries of foreclosure, bankruptcy, and repossession making a sense of paralysis. This can often make them postpone taking any helpful step towards saving their homes until it’s too late along with the possibility of recovering financially is nearly nonexistent. The inability to move towards a goal of stopping foreclosure, though, is generally brought on by any number of irrational fears, all of these could be overcome.

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One of the most typical fears affecting everyone, but heightened in foreclosure victims, may be the fear of rejection. This fear has to do with humans’ affiliation needs, for instance the should really feel appreciated, loved, or accepted. Homeowners might often be afraid to pick up the telephone and contact their mortgage company because they worry about the chance of being told there is no help for them. Instead of calling the mortgage corporation, people struggling with this fear often accept the foreclosure as inevitable and resign themselves to the possibility that they are going to have to lower their normal of living immediately after losing their home.

Closely connected to the fear of rejection will be the fear of looking foolish or making a mistake. In this case, homeowners could fear calling their bank to discuss plans to prevent foreclosure simply because they feel they do not know enough about how foreclosure works so that you can speak intelligently about options to quit the approach. They might feel their negotiating skills are not powerful sufficient and that the bank’s representatives will benefit from them and laugh at their misunderstanding of foreclosure, or that they’ll mistakenly agree to a program that’s not in their best financial interests.

A different extremely common fear is that of individuals; it is essentially really possible for homeowners working in big cities and living in modern day suburbs to feel incredibly anxious when speaking with people they don’t know. Combined with a fear of looking foolish or being rejected, being irrationally afraid of people can cause homeowners in foreclosure just to stay away from coping with their financial troubles at all. Even in such specialized situations as calling a mortgage business for support to stop foreclosure, a lot of homeowners could really feel uncontrollably anxious and have a dilemma initiating contact.

Many other fears, including those of failure and achievement, can have lasting impacts on homeowners attempting to save their properties. The end result of any of these fears, or a combination of them, is generally that foreclosure victims procrastinate until the justified, rational fear of losing their home and being evicted is so immediate that it overcomes any with the irrational fears. Irrational fears, although, develop psychological difficulties since there’s no actual danger present. Soon after all, the possibility of the bank turning down a repayment plan is absolutely nothing compared towards the eventual pain of getting evicted from a residence.

Sadly, irrational fears usually really feel really real, even though they are not grounded in any concrete danger, and most often lead to avoidance behaviors instead of positive change. As an example, homeowners who wait until the last minute to seek assist can steer clear of the possibility of getting rejected or failing, even though homeowners who project blame for their financial hardship into a spouse, boss, or other individual don’t need to assume responsibility for fixing the mortgage and develop into victims of the outside world.

The a lot more homeowners engage in avoidance behaviors to hide from their irrational fears, the more adept at avoiding pain they are going to become. Along with the higher their sense of fear as well as the far more fears they’ve, the more they will justify their avoidance behaviors as truly becoming productive. In impact, people create problems for themselves that are only symptoms with the actual anxiety-producing fears, but they perform on solving these symptoms as opposed to finding over their fears. This assists produce neurotic spirals and reinforces the irrational fears and avoidance behaviors while giving homeowners an excuse to avoid taking any meaningful step to stop foreclosure on their properties.

Confronting and obtaining over these irrational fears as quickly as probable is one of the most important actions homeowners can take to make sure they’ve the very best opportunity to save their houses. While a fear of losing a house is entirely justified if the owners have not paid their mortgage for a few months, fearing just picking up the phone and talking towards the lender to discuss doable mortgage modification selections is irrational. Controlling anxiety is such scenarios is most essential plus the first step is merely recognizing these fears when they begin to manifest themselves in avoidance behaviors and high anxiety symptoms.Subscribe in a reader

Cape Coral Property

Nowadays, people like to build their houses everywhere. Others just want to invest their money for their future. They want a good location, great amenities and the accessibility of the place. People nowadays don’t find time in buying a property, sometimes they regret buying it because it can’t satisfy them and the place is just a typical one. Well, Cape Coral Property in Florida is the place that you are looking for. This is not just a typical homes that you see everywhere because their communities here are unique especially the location that everybody love.Cape Coral Florida House is just nearby and it is accessible to all the places from the school to your office.

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The properties in Cape Coral are perfect for those who want to have a comfortable living; it includes single family homes, multi-family homes, condominiums, foreclosures, townhouses and so much more. Everything that you need is in here. The location of Cape Coral is one of the best because of what surrounds it; it is a waterfront community that children and even you adult will really enjoy the place

The House in Cape Coral has different types and if you don’t have a big budget I suggest that you check out the Cape Coral Condos. This is perfect for those who have limited budget and you can used it for rentals or vacation houses. This is also a good idea for those who want to invest some property in Cape Coral. The House in Cape Coral also sell foreclosures houses and this is good for those who like to own a house but has a limited budget. The Foreclosures in Cape Coral is a great help and the houses there are also unique and has great amenities. Cape Coral has a one quarter foreclosed homes and most people shop for houses because of it. Foreclosed houses are not that expensive but it takes a long process for you to own it.

Most of us don’t want to spend that much but investing on a real estate property is a great help for you in the future.Cape Coral Florida Homes is the right place for you to invest or buy a property for your family.

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Picture this …

You export a list of houses from the MLS (or anywhere for that matter) that you want to make offers on, get dirt cheap, sell sky high, and make millions with.

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But instead of handwriting a thousand offers, faxing them all out, getting blisters, hating your life, and kicking your cat at the end of the day (PETA is watching) … you simply upload them into The OfferBot® which is a brand new feature in Freedom$oft 3. Takes all of 6 seconds.

Once uploaded, you choose what percentage of the asking price you want to offer, your terms, and how often you want to follow up.

Then you hit “send.”

1,000 people just received customized low-ball offers from you on their houses that have probably been sitting on the market for friggin four years.

Think you’ll be able to get just a few of those accepted? What would that be worth to you if all you did was flip one measly house for a $5,000 assignment fee? I’m guessing $5,000. lol

My Longwinded Point –> what used to take days now takes minutes.

What used to be the suckiest part about real estate investing is now the easiest.

Freedom$oft is taking the work out of… work. Or something clever like that.

They’ve already brought in over 1,000 new users since releasing Freedom$oft 3 a few days ago. I’m not
sure they want too many more from what I’ve heard. They don’t want this messing up their personal real estate biz by over-flooding the market. They may have to shut this down soon …

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Foreclosure victims are almost universally worried about their capacity to qualify for a new mortgage loan after filing bankruptcy or facing foreclosure. Due to the negative credit effects of both events, it could appear like it will be impossible to acquire a brand new residence or refinance any time within in the subsequent seven years. Nonetheless, this really is no cause to give up hope. In most circumstances, with a bit of difficult function and dedication, homeowners can get a house once again after bankruptcy or foreclosure; it just won’t be straightforward.

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If the bankruptcy is used throughout the foreclosure as just a temporary remedy, and homeowners are unsure of their capability to sell the home, it may be superior just to take the foreclosure and avoid filing a Chapter 13. In either case, it is best for the homeowners to have an appraisal on the property done as soon as possible and discover if they owe more on the home than it really is currently worth. It they’re underwater, then a bankruptcy that they can not afford will not be an efficient, long-term answer to the problem.

When bankruptcy to stop foreclosure is used to obtain far more time to function on a longer-term resolution, it can be critical that homeowners know their chances of selling or refinancing. If the property is worth much less than what’s owed to the lender, finding any selection to end the foreclosure for excellent is going to be a lot more complicated. Agreeing to an unmanageable bankruptcy payment plan may be acceptable for the very brief term, but homeowners want a quick backup strategy in order to stay away from ending up with both a foreclosure and bankruptcy on their credit.

There is certainly no mistaking the danger of this event: having a bankruptcy and a foreclosure in quick succession will appear very bad to any potential future creditors. Even with just among the two, the foreclosure victims will must spend a good deal of time operating on cleaning up their credit report, receiving old negative data removed, and establishing a positive history right after foreclosure. With both showing up in a short time frame, finding the credit and economic situation back in shape will call for even more dedication. This is not to say it could not be completed, and you will discover several resources on-line to help buyers with credit difficulties, but it will take concentrated efforts by the homeowners.

Thankfully, almost all foreclosure victims can keep away from no less than 1 added judgment from showing up against them. The bank will almost certainly not come right after the former homeowners for a deficiency judgment soon after foreclosure, if that is some thing they are worried about (and most homeowners are worried about having assets repossessed or wages garnished ). But from the lender’s perspective, they’re not collecting something currently from the mortgage or from the foreclosure, so there’s no cause for them to spend the time and funds to sue the homeowners once more. Actually, the former owners possibly do not even have the economic capability to pay tens of thousands of dollars in judgments immediately after losing their properties, so why would the bank waste its time and money after taking a loss on the defaulted loan? Actually, it’s going to not waste its time, rather focusing on selling the property on the open industry.

It may take a number of years to qualify for a mortgage after the foreclosure is accomplished, but it might be carried out. Naturally, former foreclosure victims need to definitely not expect to obtain a 100% financed home. These loans simply do not exist any longer, even for buyers with superb credit. Furthermore, they’ll need to have to show the lender that there is cash for a significant down payment, plus a savings account to be employed in case of emergency, plus stable income and employment. Honestly, although, without having those three issues in order anyway, nobody should think about buying a home in the first place. A down payment, emergency fund, and stable income are definitely necessary if a loved ones decides to acquire a property, to ensure the possibility of losing that residence to foreclosure is really remote.

The most beneficial notion for homeowners immediately after filing bankruptcy or losing their house is always to use the time immediately after foreclosure to begin repairing and improving their financial scenario. In effect, that’s the most beneficial they can do for now, and inside a couple of years, there’s a real possibility they can apply for a new mortgage and be approved, so long as they have saved up, shown wise use of credit, and maintained a stable monetary condition since the finish of the foreclosure approach.

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