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Guest

Does anyone know where this is ?

Guest

Indications are that the appeal is directed more at the properties that conveyed prior to the ruling and now have a cloud on the title. Most of those sales that were tied up by the ruling seem to be in the process of reforeclosing or have already been reforeclosed on.

Guest

My husband I attended the auction of our dream home. We won the bid, however we were told that it was on the 2nd mortgage. So it is our understanding that there is an outstanding 1st mortgage that we will also be responsible for (which we are ok with) but now the lawyers seem to be dragging their feet. Does anyone know the process of winning bid of 2nd mortgage? Our lawyer said that as long as we pay for both the 2nd plus the 1st mortgage than we are clear...anyone else have more info to share/??

Guest

Any news ?

Guest

Jaijr. It's been pretty much silent. The properties hung up in Ibanez are either in the process of being foreclosed, have been re-foreclosed, or tied up in the HAMP process.

Guest

Thank You REOMA,
I am just very confused what it all means .... maybe you can help me.
I purchased the house in Nov. 08 prior to the Ibanez ruling ..... I did close with title ins. Noone can tell me if I own this home or not.
Thank you for any help.
J

Guest

This is not legal advise, just my opinion. I've sold a ton of properties pre-Ibanez that would mirror your situation and as such I did a little digging in case the question came up. One attorney I spoke to seems to think that the ruling will be modified so as not to be retroactive. What I was told is that ownership did change (read you own your home), but that the title has a cloud (flaw). That would tend to interfere with a resale. However, I've seen communication from title insurers indicating they would issue new title policies on those properties that they already had a policy on. That would appear to be your situation. Keep in mind this is MY opinion and not legal advise. With that in mind, I would suggest you contact the attorney that conducted the closing and issued the title policy. Follow that up with a call to legal aid for a second opinion. On a more personal level, if I were in your shoes I would NOT worry about a knock on the door asking me to move. I hope this helps.

Guest

Thank You REOMA ... Best of luck in all your endeavors !
j

Guest

We were 2 weeks from closing in 8/2009 when the title company said there was a junior mortgage with the same bank that held the original mortgage. Title company then said the bank would not sign a release waiver and it would have to go thru reforeclosure. Bottomline is the hearing date was set for 3/24/10 but we can't find out if the judge signed it or the timeline to close. Does this have to go through a sale again and do you know the timeline for clear title?

smithsussane · Posted: Wed Mar 31, 2010 10:34 pm Post subject:

Hi Dorothy!

Welcome to forums!

I would suggest you to have a word with a real estate attorney in this regard and take his opinion. He will be able to help you in a better way in this matter.

Sussane

Guest

Does anyone have any information on where this is ?

Guest

I'll answer the question I posed at the end of my 10/26/09 post. Basically, I appear to be the first person to successfully stop a foreclosure in MA due to a bank violating the legal requirements of the 90-day cure notice.

It was pretty simple. I went to the Land Court in Boston where the Servicemembers Civil Relief Act foreclosure case had been filed by the bank. I spoke to the appropriate clerk handling the foreclosure. He initially said that the subject of the case was solely to determine whether I qualify for relief as a servicemember, and hence I would have a really hard time fighting it in Land Court, though I could always file suit in Superior Court to bring up other issues. But his attitude changed when I showed him how the sworn affidavit by the bank that they had given 90-day notice in compliance with the law, was false. Clerks and judges don't like having plaintiffs file false affidavits. Still, the chance of getting a hearing/trial seemed remote, so I filed both an Answer to Complaint and a Motion to Dismiss, expecting only the Motion to Dismiss to be acted upon. I wasn't keen on paying $275 to file suit in Superior Court just to get a hearing that likely would not get anything better than dismissal of the case anyway.

To my surprise, the court issued an Order to Show Cause to the bank, demanding they prove their affidavit was true and in full compliance with the law. The bank, however, chose to first ask the court to grant my Motion to Dismiss, which the court promptly did, seeing as both sides had asked for it. So I missed a chance to drag OneWest/IndyMac through the mud in court for lying, but I did stop the foreclosure.

Months later, they finally sent me another 90-day notice with exactly the same problems, including not mailing or serving it on time. This time, they filed the Servicemembers suit to foreclose in Superior Court, so I have given an Answer to Complaint without a Motion to Dismiss, so that it will hopefully go to full trial, and both Ablitt Law Offices (same bank attorneys as in Ibanez....I bet they will love losing the TWO biggest precedent-setting cases in MA foreclosure law!) and OneWest/IndyMac will have to explain their illegal behavior.

Just a heads-up to any of you foreclosed-home buyers out there, you might want to avoid properties being foreclosed by OneWest and/or serviced by IndyMac, as they are 0 for 4 at even serving the right-to-cure notice on time, hence there could be future suits by illegally-foreclosed victims to void the foreclosures after the fact. Basically, they will only need the postmarked envelope from their notice, a little luck that it was mailed late like all 4 of mine were, and a suit in Superior Court.

And due to the above, buyers must be hesitant and factor in some risk, which prevents a fair price from being realized at auction. Because of that, homeowners will be showing larger deficiencies than they should, hence courts will be even more reluctant to allow deficiency judgments. This in turn, will encourage more walkaways by people who could actually afford to keep their home. Very bad for the market.

I'm expecting that because of the Ibanez case, and my own case if it becomes equally important (and I suspect it might), even the banks and foreclosure buyers will demand that Massachusetts move to full judicial review of every foreclosure, so that there is clarity and finality as to whether a particular foreclosure sale is valid or invalid. Right now, it is difficult to tell whether a foreclosure is valid, due to the non-judicial nature of foreclosures in MA combined with the fact that an invalid foreclosure can be reversed after the fact.

Guest

The Supreme Judicial Court has upheld the Ibanez decision by Judge Long. If a bank does not actually hold the mortgage (which is a title issue, not a financial or contractual issue) when they foreclose a property, the foreclosure sale is invalid. The only thing I found surprising is that big banks were too stupid to realize that no amount of money spent on lawyers could change that fact, or prevent it from being applied to ANY bogus foreclosure, regardless of when it happened (past/present/future).

That a foreclosure must be valid, for title following the foreclosure to be valid, is not a new law. So all talk by/about lawyers thinking it "wouldn't apply retroactively" was nonsense. It was simply applying the law which always existed: the actual holder of a mortgage can foreclose and make it stick, but no imposter can.

Guest

OK I am very confused . An Attorney tells me I do not own my house. That the owner is in fact the person that was forclosed on prior to me buying it.I do have title insurance and I am waiting to hear back from them. The closing attorney told me that the attorney who did the title search had no knowledge of the Ibanez ruling because it had not happened yet or it was not public yet. I purchased the house in November 2008. The Ibanez ruling was in February 2009. The closing atty. also told me that after researching a little she found that in the case of my house the assignment was done four months prior to the forclosure. However it was advertised for sale prior to either one. which makes the forclosure null and void.
I have several questions.
Keeping in mind that forclosures were handled the same way for many , many years.
1. What if the person who owned the house prior to me was forclosed on and that forclosure was not done properly. Would this ruling make that person the rightful owner ?
1a. What if a house has been forclosed on many times . How far back would one have to go to find the rightful owner ?
1b. Think of all the title ins. companies and closing attorneys that are long gone. Who would the rightful owners turn to.

2. What about those people who bought forclosures and erected new dwellings .? ( I know someone who bought a forclosed property tore it down and built a church.) What to do about that ?

3. I have put tens of thousands of dollars in improvements to my house. Will I ever see any of that ?

Please shed some light on this somebody
Thank You

Guest

It will be better if you could contact an attorney who is well versed with Ibanez ruling. He will guide you in the regard.

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A recent Land Court Decision Affecting Foreclosures in Massachusetts