What Do You Do Before You Sue?

Notice & Cure Provisions in Home Mortgages – instructions on what to do before you file a suit against your lender.

Notice and Cure Provisions in Home Mortgages – What do you do before you sue?

By Attorney Peter Francis Geraci, J.D.

It depends. Individuals may consider bringing claims against their mortgage lenders under federal statutes such as the Truth in Lending Act, or the Fair Debt Collection Practices Act, and state statutes such as the Illinois Consumer Fraud and Deceptive Business Practices Act.

But, before you sue, what do you do? Read the mortgage! Many have provisions that have to be followed, or your lawsuit will be dismissed. Examples are “notice and cure”, and “mandatory arbitration”.

In Wortman v. Rushmore Loan Mgmt. Servs. LLC, No 19C2860,(N.D.Ill. Oct 16, 2019) plaintiff’s case against their mortgage service for sending them collection notices after bankruptcy discharge was dismissed. Why? Their personal obligation on the mortgage was discharged in Chapter 13, but only the personal obligation to pay the debt, not their obligation to comply with the terms of the mortgage.

In other words, a mortgage does not disappear because of a bankruptcy discharge. A mortgage servicer can send letters about filing a foreclosure suit to take the property back, and file a foreclosure suit.  All that a bankruptcy discharge does is eliminate the obligation of the discharged debtor to pay anything on the debt. It does not eliminate the other rights of a secured creditor, such as foreclosing on real estate, or repossessing a vehicle.

Not only do “liens”, or interests in property, survive discharge, but so do clauses in such lien documents and notes. That means that, if after discharge, a person wants to file a lawsuit against a creditor who still has a lien, they have to comply with those clauses.

What is a “notice and cure” provision? It says “a party who is in default is entitled to notice of the default, and a period of time to cure the default, before the other party may accelerate the contract and demand full payment, or foreclose or repossess”.

What is an “arbitration clause”? It says “if the borrower wants to make any claims against the lender it must do outside of court, in a proceeding involving appointed “arbitrators”.

Some cases hold that these clauses prohibit a lawsuit, unless the borrower first complies with them. Some cases hold that these clauses are not effective in a consumer protection lawsuit. In the Wortman case, the judge dismissed plaintiff’s case under FDCPA because the mortgage survived, and so did the “notice and cure” provision that required the borrower to give notice to the mortgage company before borrower filed suit.

So, what do you do before you sue? Read the document that established the relationship between you and who you want to sue. It may require you to arbitrate instead of go to court, or to give notice of your intent to sue. Those clauses may or may not prevent a suit, depending on what your claim is. But one thing is for sure: liens pass through bankruptcy, and so do the documents creating them, and so does the fine print in them. Bankruptcy only discharges the borrower’s obligation to make payments. If they don’t, the creditor can take action to get their property back.

This can work against mortgage lenders and car owners, but it can work in their favor also. After a discharge in either Chapter 7 or 13, a debtor can file a Chapter 13 to cure a mortgage default, even if the personal liability to pay has been discharged. The U.S. Supreme Court, Johnson v. Home State Bank, 501 U.S. 78 (1991) rule that, after discharge in bankruptcy, a debtor can file a Chapter 13 to cure a mortgage default, even if their personal liability on the mortgage was discharged.

This ability to file a Chapter 13 to cure mortgage default also works for people who are not on title to the property, but only have an inheritance interest. If mom dies without a will, an heir can file a Chapter 13 case to cure mortgage arrears, force the mortgage company to accept payments, and prevent foreclosure.

Geraci Law Reverses Sheriff Sale

When you’re unable to make your payments on a house, a mortgage company may get a judgment of foreclosure. Then they pay the County Sheriff, or an appointed officer, to sell it at an auction. If you failed to stop a foreclosure suit, interfacing Sheriff Sale, read this.

When you’re unable to make your payments on a house, a mortgage company may get a judgment of foreclosure.  Then they pay the County Sheriff, or an appointed officer, to sell it at an auction.  If you failed to stop a foreclosure suit, interfacing Sheriff Sale, read this.

Here are some rules about stopping foreclosure:  File chapter 13 House2

  1. Before your mortgage company files a foreclosure suit
  2. Before a foreclosure suit goes to judgment
  3. Before a judgment proceeds to a Sheriff sale

In other words call Geraci law soon as you get behind, because the longer you wait, the more the mortgage company will cost you, and the harder it is. What if your house is actually been sold at a Sheriff sale?

Before coming to Geraci Law, a single mom filed a Chapter 13 with another law firm.  That case was dismissed, and that other so-called law firm told her there was nothing she could do. She was devastated, but her aunt told her to call Geraci Law. She inherited the house from her mother with her aunt on title.

Geraci Law filed a counter attack in the State Chancery Court. Before the sheriff sale, there are several court appearances and notices that must be “serviced.” She never lived at the residence that the mortgage company claimed to have served her at.

friends huggingGeraci Law was able to prove the client was not property served with the foreclosure notice. The judge sided with Geraci Law and the sheriff sale was REVERSED. The woman called for a group hug in the court room ecstatic by the work of Geraci Law. Then, Geraci Law filed a 2nd Chapter 13 to repay the past due mortgage and force them to take her future payments.

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!  Read more at www.bankruptcybookbypeterfrancisgeraci.com.

Stop Foreclosure – Can Geraci Law Help You?

Do you want to keep your home? Can you afford the home but not the arrears in a lump sum? Geraci Law helps thousands of people save their homes.

Do you want to keep your home? Can you afford the home but not the arrears in a lump sum? Geraci Law helps thousands of people save their homes.

House

Can Geraci Law save my house?

We’ve helped thousands with a Chapter 13 interest free repayment plan that spreads your mortgage arrears over a 3-5 year plan. At the end of the bankruptcy, you’ll discharge any unpaid debt like credit cards, medical and be current with your mortgage.

“What about “loan modification”?   Don’t fall for scams.  Don’t pay any money for help.  Deal direct with your lender.  When you do, expect

o   they won’t reduce the amount you owe and rarely the interest

o   your term will go from 15 to 30 years, you will never own the place

o   it is usually a scam so you don’t pay while applying, and then they foreclosure

What do I do?  If you are behind in your mortgage, call Geraci Law to

o   eliminate or consolidate OTHER debt so you can pay your mortgage

o   stop foreclosure and pay past due amounts over 3 years or more

Loan modification scams:   just search on “Legal Helpers Debt Resolution” or “Morgan Drexen”.  Don’t be scammed! Call Geraci Law. Never send money to an internet scheme.

How does Chapter 13 help with mortgage foreclosure or past due mortgage payments?

  1. It forces your mortgage company to accept your payments going forward
  2. If forces your mortgage company to accept payments on arrears
  3. It consolidates your vehicles and debts so your mortgage gets paid first

How does Chapter 7 help with mortgage foreclosure?  It could eliminate your other debt to free up your budget to pay the mortgage.

Is it too late to save my house? Ask Geraci Law!  Geraci Law can file a case in as little as ONE day BUT you shouldn’t wait until the last minute. Sooner is better than later!

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!  Read more at www.bankruptcybookbypeterfrancisgeraci.com.