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.

PFG at Festival of Lights!

PFG at Chicago’s Festival of Lights!

Peter Francis Geraci celebrated on Chicago’s famous Michigan Avenue for the Festival of Lights Parade. See photos below!

Michig Light

Mich Lights

Need help this holiday season? 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 ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Yo Adrienne! Peter Francis Geraci in Philly

PFG is in Philly! Below are some images from the trip to Pennsylvania.

It’s Not Always Sunny in Rittenhouse Square – Philadelphia

PFG-Philly

Coffee for Francis! – Philadelphia 

PFG-RittenHouse

Make America Nothing Again – Philadelphia

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Philadelphia Houses – Philadelphia

houses-philly

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.

Geraci Law – Chapter 13 Saves Medical Malpractice Case For Family

Geraci Law is the Best in the Business! This client came to Geraci Law for help with credit card debt after the death of his wife.  Luckily for him, Geraci Law lawyers are skilled in both bankruptcy and injury law.  You can’t imagine how many injury cases are lost because most lawyers have no clue!Med Malpractice gavel

Geraci Law lawyers immediately recognized that his wife’s death, after routine surgery, was not routine.  Geraci Law founding attorney Peter Francis Geraci met with him the next day.

We filed a lawsuit against the hospital and doctors, and a Chapter 13 debt repayment plan to repay the creditors without interest, and to protect his right to proceed with the medical malpractice case.  Proceeding under Chapter 7 would have resulted in the creditors being able to control settlement of the claim of his, and his children, for the death of their wife and mother.

Within a year, the hospital admitted negligence and offered to pay the family $5 million. Here is his review:

“I could not be happier to have been steered, or led to PFG, the no stress environment allowed for CH 13, to eliminate an insurmountable headache of debt, plus providing all the information I needed to move forward as I was hoping for. I would not exclude the staff at the law office; Megan, Mark, Jonathan, provided the best customer service that I have ever dealt with. Very professional, courteous, and took every bit of time I needed to ensure that I was well informed of the task at hand and the laws or legal requirements. When I titled my review as “The Best in the Business”, that is the only way to describe this team of professionals. I could not have asked for any better service, customer support, than I received. A thousand thank yous are definitely in order. For the entire team at PFG, thank you for everything that you do, have done. I have worked in many different areas, with many different organizations, and I can say, Hands Down that I have only been provided the truth, never any promises, I have only been guided in the right direction. Of course that is what I expected, a truthful, honest and professional business at PFG, Outstanding Job.”

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 since November 2016!  Read more at www.bankruptcybookbypeterfrancisgeraci.com  

Why is bankruptcy like baseball?

Geraci law knows how you feel when you’re in debt. Studies have shown most folks who would rather talk about their toilet habits or sex life than how much money or debt they have. Does this sound like you? You are 60 years old and live with a lot of economic uncertainty. You and your husband fight about money, often regret the purchases you make, and save nothing for retirement? Worse yet you have little or no pension, and you’re worried about healthcare?Baseball

For sure, you don’t know anything about the law, and you know even less about bankruptcy law. Bankruptcy is the Great American Law. Bankruptcy and baseball both start with the letter B.

Bankruptcy is a lot older than baseball.  The first officially recorded baseball game in U.S. history took place on June 19, 1846, in Hoboken, New Jersey: the “New York Nine” defeated the Knickerbockers, 23–1, in four innings

So you probably know a lot more about baseball than you know about bankruptcy. Bankruptcy and baseball are both good things. Baseball allows you to forget your troubles for 9 innings, and root for your home team. Bankruptcy allows you to get out of debt and get a fresh start so you’re not paying off old debt with money you should be saving for your retirement.

To find out more about bankruptcy and how it can

  • get you out of debt,    FlipBook
  • repay debts with NO interest
  • keep your pension, house, SUV and savings
  • allow you to save money,
  • protect your tax refund,

and more importantly, give you a sense of peace and financial freedom, dial 1 800 Call-PFG (800-225-5734), or visit infotapes.com. You can even read our new flipbook the complete book on bankruptcy by Peter Francis Geraci!

Make an online appointment 24-7 or get a free phone mini-consultation 7 a.m. to 7 p.m.

 

Peter Francis Geraci Law 5 Star Reviews

5starreviewsDecember 16, 2016: “I would like to first say that calling Geraci Law was one of the hardest decision I ever had to make. I was able to keep a float but knew my ship was sinking fast. I meet with Rodney at the Merrillville office and right from the beginning he made me feel comfortable. He helped me weight out my options with no pressure. Went over everything that I needed to know. I also had the priviledge of meeting Livita who will be with me when I go to court. She also made me feel very comfortable and answered some questions i had also. I still feel very nervous about this, however i know they will be by my side all the way. This is nothing that I am proud of, however it is something I had to do for some time of peace of mind.”

December 15, 2016:  “Very satisfied with the way the staff treated me and the professionalism they show. I would recommend anyone who needs help with bankruptcy to contact the Crystal Lake IL office.”

December 3, 2016: “Big thank you to everyone at Geraci Law, Maria, Liz, David. I would recommend Geraci to my friends and family!!”

See More Geraci Law Reviews at: https://www.bbb.org/chicago/business-reviews/attorneys-and-lawyers/peter-francis-geraci-law-llc-in-chicago-il-36000434

https://www.bbb.org/wisconsin/business-reviews/attorneys-and-lawyers-bankruptcy-and-taxes/peter-francis-geraci-in-milwaukee-wi-4019438

https://www.bbb.org/indy/business-reviews/attorneys-and-lawyers-bankruptcy/geraci-law-llc-in-indianapolis-in-12000570