Although most people are aware of the huge savings that can be had by acquiring foreclosed homes, most are unaware of the foreclosure process and how homes become bank foreclosures. The following are some fundamental details concerning the foreclosure process, including how foreclosed residences become the lender’s property.
Before diving into the fundamentals of the foreclosure process, it’s important to note that foreclosure rules vary by state, with some jurisdictions using a non-judicial foreclosure process and others using a judicial foreclosure process. As a result, the following material is only a general reference to understanding foreclosures and does not include state-specific information.
Simplified Foreclosure Procedures
When a homeowner misses three consecutive mortgage payments, the lender will submit a Notice of Default, which effectively kicks off the foreclosure process. The homeowner will usually have three months to pay the missed payments and fines. The lender will deliver a Notice of Sale if the homeowner does not meet their commitments within those three months. This document contains information about when the property will be auctioned off if the homeowner’s mortgage delinquency is not resolved.
If the homeowner fails to pay the outstanding mortgage payments and associated costs by the auction date, the home becomes “for sale” and is auctioned off to the public. During the auction, the lender’s attorney will place the opening offer (usually for the loan’s outstanding balance). If no bids exceed the opening price, the residence will be declared a bank-owned property (also known as a U.S. bank R.E.O. property).
For example, if the mortgages are held by Bank of America Corp. and the opening bids are not met, the properties will be designated as Bank of America foreclosures. If the opening bid is not met and the properties are owned by J.P. Morgan Chase & Company, the homes become JP Morgan foreclosures.
These unsold homes are added to the lender’s foreclosure list. Most lenders work through a realtor, who is in charge of selling the property on behalf of the lender.
Jeffrey Boyd et al. v. U.S. Bank National Association, as Trustee
Jeffrey Boyd, the defendant, claims that this court lacks subject matter jurisdiction over the plaintiff’s suit. He claims that because this is a securitized mortgage, the plaintiff lacks the standing to file this foreclosure case.
Furthermore, based on a check of Securities and Exchange Commission records, the defendant claims to have acquired independent reason to believe that the plaintiff may not be properly authorized to file this case.
Finally, the defendant asked for an evidentiary hearing to resolve the real problems brought by this motion.
The plaintiff opposes the motion to dismiss, claiming that it has proven its standing to commence and maintain the action. The defendant has failed to adequately substantiate any claim that would jeopardize the plaintiff’s standing.
The Case’s Position. As of record, the action was started in January 2010 with the writ, summons, and complaint service. There was very little pleadings activity in this case for two and a half years. The plaintiff filed an application for judgment of foreclosure by sale (# 121) on July 21, 2014, which the court granted on November 17, 2014. The judgment debt was found to be more than $660,000.00, while the property at 111 Scott Road, East Lyme, Connecticut, was found to be worth $295,000.00. Because the United States of America was a defendant in this case, the court imposed a judgment of foreclosure by sale despite the lack of equity.
On Saturday, March 14, 2015, the foreclosure by sale was set to take place.
Based on a physical review of the original note and mortgage, the court decided that the plaintiff was the holder of the note and mortgage they sought to foreclose at the time these orders were made.
On July 18, 2015, a new sale was set to take place.
The court and the defendant had the opportunity to inspect the plaintiff’s original blue ink promissory note, which had been endorsed in blank, and the plaintiff’s mortgage and assignment of mortgage.
According to the affidavit of debt filed with the court, the plaintiff’s servicer was Sean Bishop of Ocwen Loan Servicing L.L.C. The plaintiff was “the party entitled to enforce the obligation.”
In support of his request to dismiss, the defendant did not provide any more evidence.
The well-established common law principle that the mortgage accompanies the note and that only the legitimate note owner has the authority to enforce the mortgage is codified in General Statutes 49–17.
The plaintiff established a prima facie case that he was the holder of the note and was allowed to pursue this foreclosure by producing the original note, endorsed in blank, and supporting affidavits and other papers.
The defendant, Jeffrey Boyd, did not present evidence at the court’s October 13, 2015 hearing to refute the plaintiff’s jurisdiction to pursue this foreclosure case.
The plaintiff, as Trustee, had not proven its capacity to operate as Trustee for the beneficial owners of the note, according to the defendant.
Despite the fact that the matter had been pending for five years and the defendant had appeared through counsel seven months prior, the defendant did not pursue any discovery of the plaintiff that may have provided a foundation for the claims made.
This court has subject matter jurisdiction because the plaintiff has met its burden of showing a prima facie case that it is authorized to prosecute this foreclosure action.
As a result, the court dismisses the defendant’s petition to dismiss and sets a hearing date for the approval of the Committee’s findings and actions in connection with the July foreclosure auction.
APPOINTMENT OF A BANK AS A TRUSTEE
A trust is an important estate planning tool that necessitates the appointment of a trustee to oversee the assets placed in the Trust. Appointing a trustee for a trust can be done in various ways, including having a bank act as a trustee. A bank might function alone or with another person, known as a co-trustee.
Let’s say you’re having trouble with a trust that has a bank acting as the Trustee. If that’s the case, this article will explain some of the bank trustee’s roles and requirements and your choices for resolving your issues. Below, you’ll learn what it means when a bank acts as a trustee and how much a bank charges to maintain Trust.
How much does it cost a bank to manage a trust?
A bank can charge a fee for its corporate trustee services as the Trustee of California’s Trust. When choosing a Trustee for the Trust, the grantor normally considers the fees involved and tries to keep them as low as feasible. A widespread misunderstanding is that a bank will charge more costs to run a Trust than a single trustee. Individual trustees and bank trustees are allowed to charge reasonable fees for their services.
You think a trustee is charging an excessive fee to handle a trust. In that situation, you’ll likely need to hire a California trust litigation attorney to help you resolve the matter. If you succeed in your claim as a beneficiary or interested party of the Trust, you may be entitled to have the bank trustee’s exorbitant fees restored to the Trust as assets.
What are some of the reasons you would choose to appoint a bank as a Trustee?
Even though there are some additional fees associated with choosing a bank as a Trustee of a trust, there are numerous benefits to having a bank manage the Trust’s assets. To begin with, a bank can provide a greater level and quality of professional management services than an individual can while operating a Trust. A bank’s full-time and skilled experts monitor the Trust’s management. This isn’t always the case for someone who has been selected to manage a trust because they may not be able to dedicate their full attention to the job.
A bank is also hired to manage a Trust to eliminate the appearance of a conflict of interest. When there is sibling rivalry, the Trustee is frequently a benefit. The bank will take a neutral stance when it comes to managing the Trust’s assets and making payments on its responsibilities.
Furthermore, appointing a bank reduces the risk of the Trust’s assets being misappropriated. A Trustee is found to have mismanaged a trust’s funds and is ordered to reimburse the Trust’s beneficiaries for their losses. In that circumstances, collecting against an individual trustee may be difficult. The Trustee could go bankrupt or insolvent, leaving the Trust with no way to retrieve its funds. In the event of mismanagement, a financial institution, on the other hand, has a large number of assets against which the Trust and its beneficiaries can recoup.
What are the main responsibilities of a bank trustee?
When acting as a trustee of a trust, a bank bears the same responsibilities and obligations as an individual trustee. This includes overseeing the Trust’s assets and any businesses, real estate, and securities it owns. The Trustee is responsible for keeping complete, up-to-date, and accurate records of the Trust’s assets and any other financial transactions. In addition, the Trustee is responsible for filing all of the Trust’s annual tax returns. All relevant information should be made available to all beneficiaries and other interested persons.
The Trustee has the option of investing the Trust’s assets for the benefit of the beneficiaries. As a trustee, the basic requirements for investing the Trust assets are cautious to ensure adequate growth while minimizing risk. The Trustee should transfer assets to the beneficiaries in accordance with the Trust’s conditions.
The conflict between a trustee and a co-trustee
When there is a disagreement between the Trustee and co-trustees, the beneficiaries may petition the court to remove one or both, but this requires judicial action, which takes time and money. Even then, you may not be able to predict how the court will decide in the house hotel participate in the trust matters. As a result, things may not proceed as planned.
Do you work as a Trustee?
If you’re a trustee, you could choose to have the Trust designate the co-trustees so that they can act independently, that is, without both signatures. Logistically, the trust administration process can be finished on time if the trustees can work independently. For example, if one Trustee goes on vacation or becomes disabled, the other Trustee can finish the job with just one signature and distribute the inheritance to the beneficiaries.
Unless otherwise specified in the trust document, majority action to c0-trustees shall be taken into consideration under California probate code section 15620. Your estate planning attorney should include wording that specifies and permits activities by one or both co-trustees.
What is the definition of unanimity of action?
Section 15620 requires “unanimous action” if the specific phrase is not included in the original trust instrument or an amendment. This can be thought of as a majority rule clause.
When Co-Trustees Aren’t on the Same Page
What happens if the co-trustees are unable to reach an agreement? Suppose the co-trustees are unable to reach an agreement. In that case, any of them may file a petition for instructions under California probate law 17200, which will ask a superior court judge to assist the co-trustees. All co-trustees and beneficiaries should be notified when a co-trustee requests instructions.
For information on foreclosure defense call us at (877) 399 2995. We offer litigation document review support, mortgage audit reports, securitization audit reports, affidavit of expert witness notarized, and more.
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