THE NEVIN LAW FIRM
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The Nevin Law Firm has quality attorneys to represent you in many areas of law. In all of our cases, our goal is not only to do excellent work, but to educate you on your case and inform you of what is happening, when, and why.
Nashville Foreclosure Defense Attorneys
Our law firm has helped many individuals stop foreclosures and litigate foreclosure issues outside of the Bankruptcy process. There are still plenty of laws and remedies available to homeowners in mortgage and foreclosure defense. However, you must act fast because if you fail to act, you might lose many of your rights.
In order to foreclose on a property in Tennessee, the mortgage bank must follow certain procedures. Tennessee is a non-judicial foreclosure state, which means that a mortgage servicer does not have to initiate a legal action in court and have a judge order the property foreclosed. Instead, the servicer may foreclose on its own power through public auction.
Below are some of the Tennessee foreclosure notice and procedure requirements:
- The servicer must publish a notice of sale at least three (3) different times in a newspaper published in the same county where the sale is to be made, with the first publication running at least twenty (20) days prior to the sale.
- The servicer must send to the borrower a notice of foreclosure at least twenty (20) days prior to the date of sale if the borrower is in possession of the property. The notice must be sent certified mail, return receipt requested.
- The sale must be held between the hours of 10:00 am and 4:00 pm for cash to the highest bidder.
- The successful bidder at the foreclosure sale will receive a certificate of sale and may be entitled to receive a deed once the borrowers’ right of redemption has expired. Tennessee’s right of redemption is two years, unless you specifically waived your right to redeem in your mortgage documents. Additionally, a bank does have the right to sue for a deficiency judgment.
General Sessions Evictions
After the foreclosure has taken place, the highest bidder at that the auction owns the property. In order to gain possession of the property, an eviction process must take place. If you believe you were wrongfully foreclosed, it is critical that you show up to the eviction suit, and present your case to the judge. The General Sessions Judge does not have the power to reverse a foreclosure or make other final determinations as to the status of the property, but he can deny the eviction because you stated a case. Additionally, even if he grants the eviction, you can still appeal.
It’s important to go to the General Sessions court, because if you do not show up and present your case, you might have waived your right to bring the issue up at a future hearing.
Until January 2014, it was acceptable for mortgage servicers to initiate a foreclosure action while working with the homeowner for a loan modification. In many cases, the homeowner would be foreclosed on despite the pending home loan modification, since modifications took so much longer. Because of this practice, known as “dual-tracking,” many homeowners who were reassured that a loan modification would occur lost their homes.
To remedy this inherent conflict-in-interest of the lender, the Consumer Financial Protection Bureau (CFPB) prohibited lenders from dual tracking, and implemented strict procedures before a foreclosure could take place. With these new laws, when you submit a modification application, the foreclosure process must cease until the pending application has been granted or denied.
Because of these new regulations, a mortgage servicer is not allowed to start a foreclosure until 120 days after you have fallen behind in payments to allow a reasonable amount of time to apply for a loan modification. Moreover, the servicer is precluded from initiating the foreclosure if a modification application is pending.
If an application is submitted to the mortgage servicer after the foreclosure process has commenced, but there are still more than 37 days left before the sale date, the servicer must stop the foreclosure process until:
- Your application is denied
- You reject the lender’s offer of terms to modify
- You accept the offer, but fail to comply with the terms of the deal (there is typically a 3 month trial period)
Real Estate Settlement and Procedures Act (RESPA)
In addition to dual tracking, Congress enacted RESPA to give borrowers rights against their mortgage servicers. Under RESPA a borrower is able to make a Qualified Written Request (QWR) to dispute any charges, fees, payments, and other issues the borrower has with the service of his mortgage. It is mandatory that the servicer respond and correct any actual error.
Many times, however, the servicers will either (1) fail to respond, (2) disagree with any error or (3) fail to correct any error in the mortgage. These disputes can cause the mortgage to end up in a foreclosure.
If you think you have a valid dispute with your mortgage or your foreclosure is being dual tracked, then we can protect your rights through a law suit and ask the court to issue an injunction to stop the foreclosure. Additionally, if a servicer violates these laws, you may be entitled to money damages.
Contact us today so we can protect your rights!