What Is Wrongful Foreclosure In Alabama?


INTRODUCTION

Foreclosures in Alabama are exploding.  Approximately 800 per month just in the metro Birmingham, Alabama area.  Drive through any neighborhood – expensive or not – and you will see foreclosure signs.  Foreclosures are a huge problem for our state.

We assume since you are reading this that you (or a friend or family member) are facing foreclosure and you want more information.  We congratulate you on doing research to find out more information.

We’ve discussed this before but it needs to be repeated over and over.  The big banks and mortgage companies are banking on the fact that you 1)don’t know your rights and 2)won’t do anything about it even if you know your rights.  They think they can cheat, lie, and ultimately steal your home and you won’t know it is wrong or you won’t do anything about it.

Our mission is to prove them wrong on those two insulting assumptions.  Show these guys that you do know your rights and then take action.

There are people of all different knowledge levels regarding foreclosures that come to see us.  Some don’t know anything about foreclosures.  Others are bank executives and veteran real estate agents who have a tremendous  knowledge base.  We have laid out this long article with headings so you can jump to the parts that will be most helpful to you.  At anytime if you decide that the best thing is to talk with us, then call us at 205-879-2447 or fill out the online contact form so that we can set up a meeting with you to help you understand your options in your unique situation.

Remember the goal – understand if your rights have been violated and if they have then fight back against these mortgage companies that are trying to (or perhaps already have) taken your home.  We are here to help and will look forward to meeting with you.

I’M NOT SURE I UNDERSTAND ALL OF THE TERMS USED IN FORECLOSURES – CAN YOU DEFINE SOME OF THE WORDS FOR ME?

We find that it is helpful to make sure we are all on the same page with some basic words and definitions but if you already know all of these terms feel free to skip to the next section. We have listed these in the order they normally come up:

Note – this is the document that has the terms of the loan. For example, $200,000 for 30 years at 8% interest rate fixed.

Mortgage – this is what ties the note (loan) to the property. Otherwise the note (loan) would be “unsecured” and there could be no foreclosure.

Servicer – the company that actually handles the payments, taxes, insurance, bankruptcy proceedings and foreclosure proceedings. Normally the servicer does not own the note.

Foreclosure – your home is sold and your ability to pay off the note and have the home free and clear is “foreclosed” so you no longer have this option. We will discuss foreclosure in more detail a little bit later in this letter.

Ejectment – after a foreclosure you will receive a 10 day demand letter. This gives you 10 days to get out of the house or the new owner will have the option to sue you in order to have you “ejected” out of the house. This is where the sheriff gets you out of the house if you lose your ejectment case.  (We are seeing some foreclosure lawyers sue in “District Court” under an “Unlawful Detainer” theory which applies to landlord tenant relationships — we think this is bogus and illegal but it is a growing trend — it means you only have 7 days to respond to the lawsuit, not 30 days).

Redemption – under some circumstances, you have one year from the date of the foreclosure sale to buy back or “redeem” the property from the new owner.

WHAT ARE THE CONSEQUENCES OF A FORECLOSURE?

You will lose your house. Your credit reports will normally reflect a foreclosure which is one of the most damaging things that can appear on your credit reports. If you don’t leave the house within the time limit (normally 10 days from the foreclosure sale), you will lose your right of redemption (right to buy back the house within one year). You can also be sued to kick you out of the house and for the deficiency which is the amount owed (plus costs, expenses, and attorney fees) minus the amount the lender receives from selling your house on the courthouse steps.

IS ALABAMA A JUDICIAL OR NON-JUDICIAL FORECLOSURE STATE AND WHAT IS THE DIFFERENCE?

Alabama is a “non-judicial” foreclosure state.

Here is the practical meaning of “non-judicial” foreclosure. In a judicial foreclosure state (such as Florida) the company doing the foreclosing must file a lawsuit against the homeowner and then the judge has to rule in favor of the company in order for the foreclosure to actually occur.

In a non-judicial foreclosure state (such as Alabama) the court is not involved. The mortgage company or servicer simply must follow the law and then the house is foreclosed and sold on the steps of the courthouse. (You need to make sure this was actually done as we have had situations where the bank claims to have done this step but actually our clients were there and know it was not done.  That kills the foreclosure process in our judgment.)You might think of it as similar to repossession – the company just declares you are in default, advertises it, and then sells your house at a foreclosure sale.

Technically a mortgage company can file a lawsuit in Alabama but that rarely occurs – instead of taking a year or more to do a judicial foreclosure a mortgage company can conduct a non judicial foreclosure in a matter of weeks.

The bottom line to you is that the speed of the foreclosure can be shocking, especially if you read about or talk to people in judicial foreclosure states such as Florida or New York. You need to act quickly if you are facing a non judicial foreclosure in Alabama.

HOW DOES A NON-JUDICIAL FORECLOSURE HAPPEN IN ALABAMA?

The basic procedure is that the mortgage company will declare you to be in default of the note, and therefore the note is “accelerated” which means it is all due now. Then the company will advertise in your local paper for three weeks and then the house will be sold at the advertised time (between 11 am and 4 pm) at the courthouse steps (main entrance). Whoever buys the property at the foreclosure sale – and normally this is the company that allegedly owned the note before the foreclosure – will then record the foreclosure deed in the probate court of the county where your property is located.  The new “owner” can then sue to have you kicked out of your home.

WHAT IS A MORTGAGE SERVICER?

This is the company that handles the day to day activities of processing or “servicing” a mortgage loan. This includes sending out statements, receiving payments, handling payoffs, charging and collecting late fees and expenses, etc. Most of the time the company that owns your loan is a Trust – an investment vehicle – that has no employees so a servicer is hired that will actually do the work.

SO A “TRUST” NORMALLY OWNS MY LOAN?

Yes – in the majority of recent loans (since the early 2000s) a Trust is generally the owner of your note. These Trusts are designed to own a huge number of loans and then investors can make investments into the Trust in order to gain a certain level of return and risk. Normally the investment options will range from very safe and low returns to high returns with high risks – all on the same home loans. Being “securitized” gives investors this option which supposedly makes more investment money available to make more mortgage loans. We are seeing that the way this was done this over the last ten years has damaged our economy in a very serious way.

WHAT IS SECURITIZATION AND WHAT DOES IT MEAN FOR ME FACING FORECLOSURE?

As mentioned above, this means investors can invest money into a trust which owns your note. Think of thousands of loans bundled together and then little parts of it are separated out for investors. Maybe someone wants to have a short term investment – that is possible even if every loan is a fixed rate 30 year loan. Someone else wants a high return investment – this is possible. The possibilities are almost endless.

So what does this mean to you? Often the companies doing the foreclosure don’t know who really owns your note. The note has been sold and chopped to pieces so often that no one may be able to figure out what happened to it. Or it may have been allegedly sold to a Trust but the paperwork was never completed so it truly did not go into the Trust in a timely manner which is a requirement of every Trust that we have seen. (The document creating the Trust and putting the loans in there is called a Pooling and Servicing Agreement or “PSA” and it will contain a deadline or cutoff date to put loans into the Trust).

The bottom line is securitization can be confusing for everyone but when a company forecloses on your home, it must have “its ducks in a row” and not just guess at who the true owner is.

I HAVE HEARD OF THE “SHOW ME THE NOTE” OR “LOST NOTE” APPROACH – WHAT IS THAT AND CAN IT HELP ME?

This particular defense is prominent in judicial foreclosure states such as Florida. Remember a judicial foreclosure state requires the owner (or servicer) to file suit against the homeowner. One of the requirements is that the note must be in the possession of the foreclosing party but generally no one knows where the note is. So most lawsuits in Florida, for example, contain a provision called “Lost Or Misplaced Note” where the plaintiff – the one suing – says “We can’t find the note but we do have a copy of it.”

Think of the note as a check that you would write to someone. The check itself has special significance. If I write a check out to my neighbor and then he gives you the check, can you deposit it in your account? No. It is not made out to you.

But if my neighbor endorses it over to you then you can. But what if you went to my bank and said you wanted to cash the check. And you didn’t have the check. Would they let you cash it? I hope not! They would say to you “Show me the check” and if you then pulled out a photocopy from your back pocket this would probably not do the trick. Why? Because the check itself has meaning and significance. If you have lost the original, you would likely not be able to use a copy.

As a practical matter this is what happens with the note. Mortgage companies say the original is no better than a copy and we are just being too technical. I wonder if you sent in a photocopy of my check to my neighbor endorsed to you if they would take that as your mortgage payment? Too technical? I think you get the point.

This does have some meaning in Alabama if you sue to stop the foreclosure. But if you do nothing then it won’t help you as we must remember Alabama is a non judicial state so no judge will ever see that the mortgage company does not have the original note….

WHAT IS “MERS” AND DOES THIS GIVE ME ANY HELP IN FIGHTING BACK AGAINST A FORECLOSURE?

MERS is a company that suffers from a split personality. On one hand, it generally claims it is nothing more than an electronic database of mortgages. When a mortgage is transferred a fee is paid to the probate court of your county and the transfer is noted. With MERS, the mortgage is transferred to MERS and then all future transfers are recorded only internally at MERS (and not in the probate court) and the companies can avoid paying the fee to the probate court.

But on the other hand MERS claims it can foreclose on people all over the country including in Alabama.

So sometimes MERS is just a database and sometimes it has the power to foreclose. When it gets sued it will take whatever position helps it in the case.

Here is the significance – MERS has some serious issues facing it. If you are dealing with MERS it gives you more choices and options to explore as often MERS will appear to cross the line in the area of foreclosure law.

WHAT ABOUT FORECLOSURE RESCUE COMPANIES THAT I HAVE RECEIVED LETTERS ON OR I SEE ON SIGNS ON TELEPHONE POLES OR ON THE INTERNET?

No matter whom it is that promises to help you – a lawyer, a bankruptcy lawyer, a non-lawyer, a real estate agent, an internet site, etc. – be careful. Whenever there is a tragedy – and the foreclosure crisis our country and state are facing qualifies as a tragedy – there will be those who are scam artists that will try to exploit victims.

Use your common sense and see how much information the person offering to help will share with you. A common trait of scam artists is to “hide” the information and claim that you have to buy their product or service before the details can be revealed.

Here are a few examples of scams that you may have faced or will face:

  • Rent to buy – the promise is to buy your house and then rent it back to you. Often the rescue person does not make the payments and your home is foreclosed.
  • Straw men – sell your property to someone who will then rent it back to you or sell it to you for a reasonable price but like the rent to buy you can wind up evicted and your money has been wasted.
  • Phantom counseling – usually an upfront fee of thousands of dollars to negotiate with your mortgage company. You are required to cut off all contact with attorneys, mortgage companies, credit counselors, etc. And you have to pay your mortgage payment to the “rescuer” who then often never negotiates and never sends your money on to the mortgage company.

There are numerous other examples but this will give you a sampling. Be careful. Ask lots of questions. Be skeptical of someone who will not answer questions and will not provide helpful information before you pull out your wallet.

OK I UNDERSTAND ALL OF THIS – BUT TALK TO ME ABOUT SOME EXAMPLES OF HOW THE FORECLOSURE PROCESS ITSELF CAN BE FLAWED SO THAT I CAN FIGHT BACK.

Normally the foreclosure sale must be advertised in the appropriate paper in your county for three weeks prior to the sale. And the foreclosure sale occurs in the county where your property is located and then the foreclosure deed is recorded in that county.

Sounds simple enough, right?

Well, sometimes the company doesn’t advertise. This is a big problem as normally this means the law is not being followed so the foreclosure sale is improper.

Or maybe it is advertised but it is advertised in the wrong county or in the wrong paper. We have a case where the sale was advertised in a Walker county paper for a Jefferson county property.

We have seen where the foreclosure sale was to occur in the wrong county and the foreclosure deed was to be recorded in the wrong county.

We have seen where the foreclosure does not actually happen at the right side of the courthouse (main entrance) on the right day (day advertised) and during legal hours (11 am to 4 pm).

These are not the only types of violations of the law on foreclosures but they give you a sense of what we always want to check out. There are not often violations of these types but when there are, you have options.

I’VE HEARD ABOUT ILLEGAL CHARGES THAT CAN GIVE ME OPTIONS IN FIGHTING A WRONGFUL FORECLOSURE – TALK TO ME ABOUT THESE

Servicers are the companies that actually handle your payments and escrow as well as when you are late or in default. They really don’t make much money except for when you are in default. Then the fees can quickly add up and these fees are extraordinarily profitable to servicers.

So what fees are we talking about? Inspection fees (when someone drives by your home to see if you are still living there). Broker price opinions. Attorney fees. There are numerous other fees but these that we have listed will give you the general concept.

What’s the problem with them? For most of these there is not authority in the loan documents for you to be charged these fees. Or if there is, the amount is not set out. Think about it – the loan was supposed to last for 30 years so the loan companies don’t want to put a dollar amount on the fees and expenses. Sometimes we see charges imposed, for example, for inspections when there were no inspections. Or the fee is inflated over the actual charge of the inspection. Lawyer fees where no lawyer looked at your account.

Another related matter is the order of payments. Most loan documents require a payment to be first applied to interest and principal for whatever month the payment is owed. Only after this can fees and expenses be paid. But sometimes the servicers will instead apply the payment to the fees and expenses first (remember this is where they make their money). Then there is not enough left for the monthly payment so guess what – you get another late charge. People have been forced into considering bankruptcy or have faced foreclosure over this seemingly small detail but it can become catastrophic. When this happens you may have a lawsuit or a defense to the foreclosure.

WHAT ARE SOME EXAMPLES OF FRAUD THAT YOU HAVE SUED COMPANIES FOR?

Oftentimes the fraud is related to your efforts to save your home from foreclosure. Most people who are facing foreclosure have made numerous efforts to find some solution that will allow them to keep their home. Lies from the mortgage companies are not unusual at this stage.

In one case, our client had been told if she would make a several thousand dollar payment then the foreclosure would be stopped and she would not need to leave her home. So she did this. The mortgage company accepted the money. Then she received a letter telling her the foreclosure had occurred and she needed to leave her house. She called and the mortgage company told her all was fine and to ignore the letter. She then got sued for ejectment and the mortgage company claimed she had lost her right to redeem. So we counterclaimed against the mortgage company for the fraud.

Another example is our client was told the loan would be in forbearance until the house sold. Despite telling our client this repeatedly, foreclosure proceedings were begun against the client. But the advertisement was in the wrong county. The foreclosure sale was to occur in the wrong county. And the foreclosure deed was going to be filed in the wrong county. We sued the mortgage company for fraud and a number of other claims.

Numerous cases exist where Alabama residents were told they had a loan modification or that there would be no foreclosure during the application for a loan modification but then the foreclosure happened anyway. For example, one of our clients went through a loan modification and was told that modification had been approved and the client could start making payments but then suddenly the property was foreclosed. In our opinion a jury will agree that our client was the victim of fraud.

Fraud in Alabama is made up of several elements or requirements. We’ll give you the quick overview here so you can compare your situation to the law when we meet.

First, there must be a misstatement or a lie.

Second, the lie must be about a “material fact” – that is a fact that is important.

Third, you must appropriately rely on the lie. You can’t close your eyes to the truth.

Fourth, you must be damaged.

When you meet with us or another attorney you can explain what statements were made to you and we can help you determine if there was any fraud.

WHEN CAN I RESCIND A LOAN FOR VIOLATIONS OF FEDERAL LAW?

For some loans there is a right of rescission. This means that you can “undo” the loan and everyone goes back to where they started before the loan occurred. Under some circumstances the time for this can be extended from three days to three years. This right may not be available to you but when it is this proves to be very effective and is a powerful tool that you can use.

IF I WANT TO HIRE YOU WHAT TYPE OF FEE WILL I BE PAYING?

We have several options available. One option is a straight hourly rate of $400 per hour plus expenses. Most people, however, choose to hire us on an affordable monthly payment plan along with a contingency (percentage) of any recovery that we make. We will be glad to discuss these options with you to help you find out if we are the right firm for you.

SO WHAT DO I NEED TO DO IN ORDER TO MEET WITH YOU?

First, call us at 205-879-2447 or email me through this website. This way we can set up an appointment with you.

Second, gather all the documents you have related to your loan. Every loan document. Every payment you made. All correspondence. Bring copies of all voicemails. All notes you made on any conversation. Every email. All letters from lawyers. All of your credit reports.  The idea is simple – bring us every bit of information you can get your hands on so we can better help you understand your options.

YOU NOW HAVE KNOWLEDGE – MAKE SURE YOU TAKE ACTION!

The mortgage companies are banking on the fact that you do not know what your rights are and therefore can’t hold the companies accountable if they are breaking the law.

While this article is only designed to give you a general overview of some of the laws (without getting into all of the specifics and exceptions), you do have knowledge. The question is what will you do with it?

You can do nothing. You can try and work it out with your mortgage company. You can call a “foreclosure rescue” place. You can call a bankruptcy attorney. You can call a consumer attorney. Or you can call us.

We obviously would like to have the chance to meet in person with you to go over your options but no matter which choice you make do make sure you take action. If you take no action then we have failed in this article as we want you to do something. It may be you can’t or should not stop the foreclosure. Sometimes life is that way, but do take the next step by contacting someone that can help you.  Our phone number is 205-879-2447 or you can simply fill out this contact form and we will email or call you to set up an appointment.  Remember time is precious in foreclosure cases so call us (or someone) sooner rather than later.  We look forward to hearing from you.


22 Comments

  1. Matt Hooper says:

    We are being foreclosed on. Sale date in late May. We noticed on the Loan {Closing} Documents- Bank of America has the wrong County for our home listed on several pages….Can we petition the Court to have B of A bring forth the Original Loan Docs and correct this error- thus stalling the foreclosure sale ?

    thank you

    • JohnGWatts says:

      It depends on where you live. But you may be able to. Is the foreclosure going to be in the wrong county? We have seen that in Alabama and if the foreclosure is going to be in the wrong county, that’s a problem. Not sure where you live but definitely worth getting with a foreclosure defense lawyer in your state/city and finding out your options.

      Best wishes

      John Watts

  2. tammy reyes says:

    can a mortgage company foreclose on a house left to me in my mothers will while i am trying to probate the will? they said they will no lomger accept payments from me which i have been making since her death but i am afraid that because they will no longer accept payments from me they will try to foreclose on the property.

    • JohnGWatts says:

      Tammy,

      This can be a complicated situation when we have a will and probate issues involved. Best thing to do is to have your probate lawyer contact the mortgage company and see if he or she can get someone at the mortgage company to give time for the probate process to work so you can make payments or refinance the house to pay off the mortgage company.

      Best wishes with this difficult situation.

      John Watts

  3. pamela jenkins says:

    Mr Watts,
    I ee you have filed suits but I want to know about your wins??
    I have searched and can’t find any wins

    • JohnGWatts says:

      Pamela,

      None of our mortgage cases have gone to trial yet. The mortgage companies have resolved the cases with us before trial.

      We have several that I don’t think the mortgage companies will be willing to do what is necessary to avoid a trial so I expect we will be trying several of these in the next 6-12 months.

      If you are talking about non mortgage cases, we have a number of jury verdicts and judgments in favor of our clients.

      I’ll mention this. Every trial lawyer that tries cases wins some that should be lost and loses some that should be won.

      We have won big cases and we have lost cases.

      We haven’t had the opportunity in mortgage foreclosure cases as the deals proposed have been good enough that our clients want to accept them.

      Time will tell how these mortgage cases that go to trial will turn out.

      Thanks for your question and best wishes in your situation.

      John Watts

  4. Tracy says:

    I just found out my house is going to be sold June 21. No one gave me notice, but I called and heard an automated message when I entered my account info. I am out of state so my guess is a notice is posted on my door. What will happen after the foreclosure sale? I understand that if they sell the house for less than my loan they will sue me for the difference. Is that correct? Thank you.

    • JohnGWatts says:

      Tracy,

      In Alabama if a home is sold for less than the amount owed, then normally you will owe the difference. This is normally called the “deficiency” amount.

      After a foreclosure, if the house is empty, the new owner will normally take over the house.

      If the house is not empty, the new owner will demand you leave the house within 10 days.

      If you don’t, then an ejectment lawsuit will be filed to force you out of the house.

      All of what I have mentioned above is what happens in Alabama normally. I don’t know about other states — I’m sure some are similar and many are different.

      I hope this helps and best wishes on your particular situation.

      John Watts

  5. melissa says:

    How can i stop the foreclosure? If i send in all the past due payments will that stop it. Also my mortgage was sold to a different company. We have not recieved any sort of correspondence from them. we have tried to talk with them about ways to remedy our problem but were told tbey couldnt do anything. we were told our monthly payments would be one price only to find out it was 300 more. we recieved a letter in the mail today from an attorney. i want to keep my home.

    • JohnGWatts says:

      Melissa,

      If you live in Alabama, feel free to call us at 205-879-2447 and ask to speak to my paralegal in charge of foreclosure cases Randi Curb. If you are outside of Alabama go to NACA.net to find an attorney in your area.

      Sometimes you can stop a foreclosure by paying the past due amount but often times there are all sorts of fees and expenses (legitimate or bogus) that the bank says must be paid.

      You are doing the right thing by being concerned and taking action on this.

      If we can help, give us a call at 205-879-2447.

      Best wishes

      John Watts
      Birmingham, Alabama

  6. Tom says:

    I am about to sue a large national bank for fraud/wrongful foreclosure related to a 2010 loan modification that my client was told was declined 1.5 years later. There is no foreclosure sale date yet. We have the bank telling the client three different reasons(in writing) why it was ultimately declined. Anyway, my question is where the suit should be filed, State or Federal? I have seen both. Would I need to file in state as a counterclaim when I move to enjoin the foreclosure sale? If I don’t want to wait until the date is set, do I have to file in Fed? Thanks.

    PS – Your website has been helpful.

    • JohnGWatts says:

      Tom,

      I’ve been out of town for a week and will get with you when I’m back tomorrow or Thursday. Glad the website has been of some help to you.

      As far as where to file, here are some thoughts/questions for you.

      We normally prefer Federal Court as we find the lawyers for the banks are less likely (though they still will!) to play games in discovery as the Federal Judges seem to be a bit more strict on making sure the rules are followed. Obviously we have seen the opposite but knowing your state court judges and federal court judges view on discovery is a big factor for us.

      The opinions from the Alabama Court of Civil Appeals have been somewhat puzzling. We had a federal judge tell us there is no way to reconcile the decisions about foreclosure coming from the court. This makes us lean towards federal court but on the other hand there were some good appellate decisions last year. Who knows what a federal court (district or appellate) will do on an Alabama case? Try to follow the somewhat contradictory seeming court of civil appeals opinions or ignore those in favor of the limited Alabama Supreme Court opinions? Hard to say but something to consider.

      As far as a counterclaim — that would only come into play if your client is foreclosed and then sued for ejectment. Then you are in state court to stay unless one of the counterclaim defendants (not third party — they are counterclaim defendants — see Rule 13) removes. I think at that point you can challenge the removal as only the “Defendant” can remove or you can waive it as it is not jurisdictional in my opinion.

      As far as stopping the foreclosure sale, we may be different in this regard, but we never file a TRO. We sue and send a courtesy copy to Sirote & Permutt or McFadden or whoever is doing the foreclosure sale and we ask them to stop. They then face a choice.

      Stop the foreclosure sale and lose that leverage over our client?

      Or should they proceed with the foreclosure sale after being warned in a lawsuit that they are about to commit a breach of contract and tort violations?

      So far they have all chosen, wisely I think, to stop the foreclosure sale and mitigate damages.

      That may be way more information than you wanted (smile!) but those are my thoughts for whatever they are worth.

      Talk soon….

      John Watts
      Birmingham, Alabama

  7. Dawn says:

    Hi John, Your writings are valuable relating to foreclosure issues. Your legal insight has brought calm to my home. TY (-: Here’s a snap shot of my foreclosure nightmare! A month ago, by mistake,I found further foreclosure action had taken place while,I was in Chapter 13.At the time,the “automatic stay” was in place protecting my rights. I’ve been told, the automatic stay” is like the “gospel” under Federal law. During my Chapter 13 the servicing company never brought a motion to lift the stay. In fact,no objections were made in my case.To date,I find the servicing co. held the sale while I was in Chapter 13. The servicing company held the sale & bought my property themselves. Recently,I came across new motions that were filed by servicing co. The motion(s) are for “confirmation of sale” which takes place March 2013. At front-end of Chptr 13 filing I contacted, as a courtesy the plaintiff’s attorney to make sure their file was complete & updated with my Chptr 13 info. The Plaintiff’s attorney specifically said he would immedialely file the motion to dismiss the order of “sale date”. I’ve all notes & correspondence. At the same time,I emailed my servicing co.(escalation person) with the chptr 13 filing info.Live in IN. w/business property in Chgo. Need attorney referral. Doing a 360 with attorneys. Apparently malpractice, & fraud is involved. Any thoughts? Appreciate your help once again.

    • JohnGWatts says:

      Dawn,

      Thank you for your comment and your kind words.

      That sounds crazy what the mortgage company did — the chapter 13 “automatic stay” is very serious.

      I don’t know any attorneys specifically for you but take a look at http://www.naca.net — should be a place to “find an attorney” and I would start where-ever your bankruptcy was filed. That’s the order that looks like was violated so I think you want a lawyer who practices in front of that judge.

      Keep us posted on what is happening and thank you for doing your part to get the mortgage companies to do the right thing and stop doing the wrong things!

      John Watts
      Birmingham, Alabama

  8. Pete Russel says:

    I have heard that in Georgia you can go to the courthouse steps during the day your house is being foreclosed on to ensure it is being called out by the banks for auction. Supposedly if its not called out you could sue to get your house back, is this so?
    Is it the same in all states?

    • John Watts says:

      Pete,

      I can tell you in Alabama the foreclosure lawyer (or “auctioneer”) must actually be at the correct courthouse on the correct date at the correct time. In Alabama this is the front entrance to the courthouse on the date listed in the newspaper advertisement and the time must be between 11 am and 4 pm. We talk about this in our post here about the time and place of a foreclosure.

      Now, if this did not happen (and we have a current case right now where we have counter sued the bank for not actually foreclosing) then the whole foreclosure is improper and needs to be set aside in my opinion. The foreclosure can then be done properly and you can be compensated for any damages.

      As far as Georgia, I’m not sure how the process works. But when you say “get your house back” I know in Alabama the foreclosure deed should be voided so the ownership of the house returns to you. So does the debt obligation but normally when there is a bogus foreclosure and a bogus foreclosure deed filed in court, there are going to be some serious consequences to the bank for what it did.

      Remember in most states there is what is known as “Judicial Foreclosure” where the foreclosure only happens once the judge approves it so I think there is less chance that the actual foreclosure itself will be skipped by the bank.

      If I did not answer your question please let me know.

      Thanks for the comment!

      John Watts
      Birmingham, Alabama

  9. Freddie Evans says:

    I purchased my home in 1998. As of now, it is over 50 years old, and in bad shape.

    Found out 20 months after purchase that concrete slab foundation was cracked, at that time would cost $38,000, now it would cost $44,000. Also walls and floors would need to be repaired; more money.
    Electrical wiring, water pipes, and new AC/Heating ducts needs to be replaced; installed new AC/heating unit three years ago. Some plumbing; almost $8,000 worth,have been replaced over the years beginning a year after moving in, but still a problem.
    Have 15 and half years left on mortgage which is more than the house is now worth in the housing market but less than what the bill would be for me to make the repairs to the house. What should I do?

    • John Watts says:

      Freddie,

      I’m sorry you are in this tough spot. Feel free to give us a call at 205-879-2447 and we can help you walk through some options. Sometimes it makes sense to stay and sometimes it does not.

      John Watts

  10. Tim Hoven says:

    In January 1973 when I was a minor of 13, my father died intestate. I was made to understand that when I reached legal age my Mother and I were tenants in common with right of survivorship.
    The home we shared is on 1/2 (one half) acres. Several more parcels adjoining this were acquired over the years (totaling 3 1/2 acres more or less).
    In 2003 my Mother took out a loan and secured that with a portion of the property other than the home. I signed the mortgage to reflect any percentage of ownership I had in this parcel. I did not sign the note.
    My Mother passed away in 2005, also intestate. I continued to make payments to Countrywide through the summer of 2009.
    When I made inquiries as to the principal or terms of the mortgage, I was told they could not talk to me since it was in my mother’s name.
    I sent them (by now Bank of America) a copy of my mother’s death certificate and still they refused to discuss matters with me.
    At this point, I opened an estate at my county seat and was appointed administrator. As a part of this process I sent a notice to all of my mother/s creditors (including BOA) as well as running the necessary ad in the local paper.
    By this time, they had initiated foreclosure proceedings on the on the parcel of land and published same in the same local newspaper.
    Upon checking with the tax collector’s office, I found neither Countrywide nor BOA had ever paid the property taxes on the home much less the parcel described on the mortgage. They had attempted to pay taxes on land I own in another township within this same county.
    At some point, they surmised that the house was the property they wished to have as the described property on the mortgage and then petitioned the court to reform the mortgage accordingly (they also sought all adjoining property purchased after the fact be added).
    At this writing the matter has yet to be set for a court hearing. As prescribed by law, I answered their complaint and denied each and every claim. I also sited their failure to respond to the terms set forth in the opening of my mother’s estate.
    I have read that Alabama is business friendly (bank) state and the consumer is out matched against their endless rack up of incurred costs (legal, interest, penalties etc.) and that a reformed mortgage is a genuine likelihood.
    Can you offer me any guidance? Do you feel I might have a counter claim? Any help you can provide would be greatly appreciated.

    Tim Hoven

    • John Watts says:

      Tim

      I’m sorry you are having to deal with this.

      You may very well have a counterclaim or defense to the lawsuit. I would get with an Alabama foreclosure defense lawyer to figure out your specific options.

      As far as the laws or “climate” of Alabama, I think our judges are fair. It is true that Bank of America has incredible resources but even if they have ten lawyers on the case, only one can talk at a time in the trial. :)

      Give us a call at 205-879-2447 if you would like to chat.

      Best wishes

      John Watts
      Birmingham Alabama

  11. Catrina says:

    We were dealing with a mortgage broker who neglected her responsibilities. We did not receive a good faith estimate, and lied to both us and the bank that owed the home. She ignored our conversation and gave false information that left us without a home for four months. We did close on the home but the day before closing, we had to come up with $2031 because she ignored us about what we need to bring to closing. That why we stress about a good faith estimate in the beginning. we have all emails, text from our phones and the realtors are will to show their conversation of how she neglected her responsibilities. There is so much more that went on but need to help moving forward. We have already placed a complaint with BBB.

    • John Watts says:

      Catrina,

      I’m sorry you did not get accurate information. It really is key to have accurate information!

      If this caused you harm, definitely check with a lawyer to find out your rights and options.

      John Watts
      205-879-2447

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