Foreclosures and the Courts: What You Need to Know

This series of short video and audio lectures provides important and fundamental information about fighting foreclosures in the court system in Massachusetts. The lectures are presented by Grace Ross, Coordinator of the Massachusetts Alliance Against Predatory Lending (MAAPL).

Important Notice:

  • These video and audio files are presented for informational purposes only
  • The presenter is not a lawyer
  • The information in these video and audio files is not, and does not replace, legal advice
  • This information is being provided free of charge.

Table of Contents and Outline

What’s Happening to My Mortgage and House?

    1. Auction Does Not Mean Evictions (video – 2:51)
      1. Only a court can order you to leave your home
      2. Auctions do not mean you must leave
      3. Many auctions are illegal
    1. Steps in the Foreclosure Process (video – 13:27)
      1. Mortgage
      2. Default
      3. Right to Cure
      4. Active military service
      5. Affidavits in the Registry of Deeds
      6. Notice of Sale
      7. Auction
      8. Post-Foreclosure Notice
    1. What Happens After the Auction, Part 1 (video – 3:18)
      1. This is when the “fight” begins
      2. Benefits and disadvantages of the bank suing you vs. you suing the bank
      3. Notice to Quit
    1. What Happens After the Auction, Part 2 (video – 17:46)
      1. Notice of Court Case/Summary Process
        1. Hearing date
        2. Answer date – critical information
      2. Serving answer and discovery
      3. Qualified written request
        1. RESPA
      4. Importance of deadlines and opening mail
      5. Summary judgment
      6. Trial and appeals
        1. Getting your evidence on the record
  1. Non-judicial Foreclosure (video – 14:49)
    1. Foreclosing on a property without the oversight of a court
      1. Massachusetts is a non-judicial foreclosure state
    2. Auctions
      1. Foreclosure by Entry
      2. Power of Sale
    3. Sacred Trust Relationship
    4. Due Process Requirements
      1. Mass. General Law 244
      2. Ibañez decision
        • Banks must follow the letter of the law to a “T”
        • Banks must use strictest care and utmost diligence
      3. Banks breaking the laws

How Did We Get Into This Mess?

    1. The Housing Bubble (video – 3:56)
      1. Inflated values of homes – Mortgages given were much higher than the actual value of the homes

  1. How unregulated mortgage companies and securitized trusts made money off lending
  2. How they earned money by convincing people to borrow more
  1. Mortgage companies working outside the banking regulations
  2. Loans that set homeowners up to fail
    1. Subprime loans
    2. Adjustable rate mortgages
    3. No doc loans
    4. Unaffordable mortgages
  3. Freemont decision
    • SJC ruling on predatory loans and modifications

Going to Court – Key Information

  1. Intro to the Court Process (video – 7:44)
    1. Standing – The first step in the court process
    2. Jurisdiction – Making sure you are in the correct court
  2. Discovery Background
    1. Part 1 (audio – 9:33)
    2. Part 2 (audio – 7.35)

  3. Full Appeal Steps (audio/MP3 – 8:46)
  4. “Appellate Gaul Revisited: Standards in Search of Definition” by Hon. Francis R. Fecteau and Attorney Jennifer Scro, in Massachusetts Law Review, vol. 97, no. 1, pp. 7-14. Full issue at the link provided—scroll down to read the article.
  5. Massachusetts Appeals Brief Construction (audio)
    A. Part 1 (16:47)
    B. Part 2 (pending)
  6. Interpreting the Law (video – 16:02)
    1. Appearing in front of a judge
      1. Confidently presenting your facts
      2. Facts vs. belief
    2. How judges interpret the law
      1. Three steps to interpret the law
    1. Requirements of a Legal Court Case (video – 9:08)
      1. Plaintiff – Person bringing court action, burden of proof
      2. Defendant – Person being brought to court, no burden of proof
      3. Challenging affidavits
        • Prima facie
        • Poking holes in evidence
        • Challenging standing
    1. Fighting the Confusion of Laws (video – 5:34)
      1. Laws change over time
      2. Banks have perfected illegal standard procedures to foreclose on homes
        • Mass. is a non-judicial foreclosure state – Banks can foreclose without the oversight of a court
    1. Filing Bankruptcy (video – 6:52)
      1. Be cautious filling out bankruptcy forms
      2. Bankruptcy is your last line of defense in an eviction
        • Wait for right time to use it, do not file unnecessarily
      3. Discharge of the mortgage

Mortgage and Note: What Did I Sign As My “Mortgage?”

  1. Mortgages and Notes (video – 5:53)
    1. Difference between mortgage and note
    2. How to look up who has your mortgage

  2. Explanation of Mortgagee’s Option to Accelerate
    1. Part 1 (2:56)
    2. Part 2 (0:38)
    3. Part 3 (1:34)
  1. Real Property Law (video – 13:29)
  • Lien Theory State vs. Title Theory State
  • Statute of Frauds
  • Assignments of Mortgage – Your mortgage changing hands from bank to bank
    1. The Note (video – 29:10)
      1. What is a note, and why is it so important?
        1. PETE – Person Entitled to Enforce
        2. Only PETE can foreclose on a property
        3. Allonges
      2. Bank mistreatment of notes
        1. Not following the rules
        2. Risk to homeowner of owing multiple parties the same debt
      3. Uniform Commercial Code – Regulations regarding the note
      4. Getting judges to understand the importance of the note

    2. What is an Allonge? (audio – 4:48)
    1. Consummation of a mortgage (video – 10:00)
      1. Requirements of consummation of a mortgage
      2. MERS disclosure
      3. Disclosure of all information regarding home value
    1. MERS (video – 15:40)
      1. What is it?
        1. A privatized system owned by the banks
        2. Acts as a giant mailroom
      2. Importance of Registry of Deeds
        • Why the mortgage companies want to cut them out
      3. How MERS operates
      4. Staff and accountability
      5. How MERS violates laws and regulations
    1. Fannie Mae and Freddie Mac (video – 23:02)
      1. What are they?
        • Mortgages guaranteed by you, the taxpayers
      2. Where and why do they hide the fact that they own your mortgage?
      3. Legal contracts
      4. Pooling and selling your mortgage on the stock exchange
      5. Trouble with loan modifications
      6. Illegal tactics
    1. Securitized Trusts (video – 20:34)
      1. Private banks want a comparable system to Fannie Mae & Freddie Mac
      2. Trustees
      3. Arms-length transfers
      4. REMIC tax code – Tax-free transfer system for the banking industry
      5. Assignments
      6. Voided transfers of mortgages
      7. Pooling & Services Agreements