Foreclosure Strategy Unleashed

Today, everywhere you look, there are commercials, billboards and roadside signs by entities offering to help you prevent a foreclosure of your home. Known as Foreclosure Consultants, some, if not many of these services and the persons whom they employ may be acting in violation of the strict regulations in California which regulate this growing industry. Others, may be outright frauds and scam artists.

 

The focus of these foreclosure consultants is anyone who is behind on their mortgage payments, which is now estimated to encompass one out of every ten homeowners. However, those who seek to defraud the public have their focus especially on the elderly, the newly unemployed, those whose properties are entering foreclosure and those whose payments have recently spiked upwards.

 

If you’ve been the victim anywhere in Southern California of real estate fraud or the target of an unscrupulous loan modification service, foreclosure consultant or someone acting on your behalf to modify your mortgage or cure your problems who is in violation of the strict regulations discussed in this article, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .

 

If you are a licensed real estate broker or agent and have either been wrongly accused of being in violation of the laws and regulations governing loan modification services and foreclosure consultants, or acted as such without being aware of these strict regulations and need legal defense, we urge you to call us at any of the numbers which you can find on our website.

 

To help you wade through the regulations in California on such services, here are some of the most important regulations. Keep in mind, that there is some overlap between foreclosure consultants and loan modification services. For that reason, the laws and regulations governing both services are included.

 

California Civil Code Section 2945 regulates foreclosure consultants. There is an additional requirement with respect to loan modification services, as discussed below. As with many code sections, the restrictions are complex and many. But here are the primary ways in which foreclosure consultants and loan modification services are regulated.

 

First, no foreclosure consultant and no real estate licensee is allowed to collect any advance fees for services as a foreclosure consultant once a Notice of Default has been recorded against your property. California lawyers are exempt from this prohibition.

 

Second, even if a Notice of Default has not been recorded against your property, in order for a real estate broker to assist you in obtaining a loan modification, or to otherwise negotiate a possible resolution to your problem, the broker must have you sign an agreement that specifically states what services will be performed, when they will be performed and how much you must pay.

 

Third, a broker may not have you sign any such loan modification agreement until it has been submitted to the Department of Real Estate for review and the broker has received permission from the DRE to use it and collect an advance fee.

 

Fourth, licensed real estate brokers who provide loan modification services without collecting fees in advance are not required to receive the DRE’s permission so long as their services are fully completed before they are paid by you.

 

Fifth, foreclosure consultant contract must allow the homeowner the right to cancel the contract until midnight of the third business day as defined in Section 1689.5 of the California Civil Code.

 

Sixth, foreclosure consultant contracts must provide an additional notice to the homeowner in 14-point boldface type stating when fees can be taken and notifying the homeowner that the consultant cannot ask you to sign any lien, deed of trust or deed.

 

Seventh, it is a violation for the foreclosure consultant to claim, demand, charge, collect, or receive any compensation until after the consultant has performed each and every service the consultant contracted or represented he or she would perform.

 

Eighth, it is a violation for the foreclosure consultant to charge any fee or interest which exceeds ten percent per annum of the amount of any loan which the foreclosure consultant may make to the owner.

 

Ninth, it is also a violation for the foreclosure consultant to take any wage assignment, consideration from any third party, acquire any interest in the residence in question, take any power of attorney, induce the owner to sign other contracts which are not in compliance, or enter into an agreement to assist the owner to obtain surplus funds prior to 65 days after the trustee’s sale has been conducted.

 

Tenth, an action may be brought against a foreclosure consultant for any of these violations and judgment shall include actual damages, reasonable attorney’s fees and costs, equitable relief and exemplary damage of at least three times the compensation received by the foreclosure consultant. The foreclosure consultant may also be punished by a fine of up to $25,000.00 or imprisonment for up to a year or both for each violation.

 

The reason for these regulations are many. Foreclosure consultants have, in many cases, been found to charge high fees, require the payment to be secured by a deed of trust on the residence, and then have either performed no service or worthless services. Some foreclosure consultants have then been known to purchase the homes at a fraction of their worth shortly before the homeowner loses their home.

 

Additionally, some foreclosure consultants have required payment of exorbitant fees for services such as to obtain the remaining funds from a foreclosure sale when the homeowner could have obtained those remaining funds from the trustee of a trustee’s sale directly for minimal cost if the homeowner had sufficient time to receive notices from the trustee regarding how and where to make a claim for excess proceeds under Civil Code Section 2924j.

 

Among the services foreclosure consultants are known to offer, legitimate or otherwise, are to stop or postpone foreclosure sales, obtain forbearances from beneficiaries and mortgage companies, assist in getting reinstated, obtain extensions of time, obtain waivers of acceleration clauses, assist in obtaining loans and advances, avoiding or ameliorating the impairment of the owner’s credit, saving the home from foreclosure, and assisting in obtaining the remaining proceeds from the foreclosure of the residence. If a foreclosure consultant promises any of these services, he or she is bound by Civil Code Section 2945 discussed above.

 

If you are dealing with a loan modification service, even one with a contract which has been submitted to the DRE and the broker has received permission to use it and collect an advance fee, if the real estate broker does not follow the strict procedures for handling the advance fee as contained in California Business & Professions Code Section 10146, the agent will be presumed to have violated Sections 506 and 506a of the Penal Code and the homeowner may recover treble damages for amounts misapplied and shall also be entitled to reasonable attorney fees in any action to recover those amounts.

 

Representatives of foreclosure consultants must be bonded real estate licensees. Foreclosure consultants must also be bonded and registered with the California Department of Justice (and submit advertising and promotional materials) and the homeowner must be provided with written proof that the consultant’s representative has a valid California real estate sales license, and is bonded in an amount equal to at least twice the fair market value of the property in question. If the foreclosure consultant performs any activities which include negotiating loans or performing services in connection with real property loans, the consultant must also be a real estate licensee.

 

While real estate agents are in some respects exempt from the foreclosure consultant regulations contained in Civil Code Section 2945, they are subject to it’s regulations under certain circumstances and it is in those circumstances that a real estate agent can be in violation of the Act. If they collect fees once a Notice of Default has been recorded, if they collect advance fees before acts have been performed, if they acquire an interest in a residence in foreclosure, if they assist the owner in obtaining the remaining proceeds from the foreclosure sale, or if they make a direct loan for a residence in foreclosure, they may be in violation of the foreclosure consultant laws.

 

A real estate broker cannot collect an advance fee under California Business and Professions Code Section 10026 unless the broker has submitted to the California Department of Real Estate an advance fee agreement for approval.

 

A loan modification contract, even one with a licensed real estate broker, for their assistance in working out a loan modification or negotiating another resolution of your problem must still state what services will be performed, when they will be performed and exactly how much you must pay. If the fees are to be collected in advance, the contract must be pre-approved by the Department of Real Estate.

 

At the Law Offices of Sebastian Gibson, we specialize in the field of real estate and stand ready to assist you if you have been the victim of any type of real estate scam. If you have lost money or your house to a foreclosure consultant or loan modification service as a result of their wrongdoing, we can assist you in pursuing the parties who victimized you and in some instances, we may be able to seek not only any moneys paid to them, but also, in some cases, your other actual damages, equitable relief, reasonable attorney’s fees and costs and punitive damages of three times the compensation received or misapplied by the foreclosure consultant or loan modification service who contracted with you.

 

If you have a business or real estate legal matter in Palm Springs or Palm Desert, in Ontario or Rancho Cucamonga, Temecula or Murrieta, Newport Beach or Huntington Beach, Anaheim or Santa Ana, El Cajon or Carlsbad, Palmdale or Victorville, Long Beach or Santa Monica, Ventura or Oxnard, or anywhere in Southern California, our Palm Springs, San Diego, Orange County, Inland Empire, Los Angeles, Santa Barbara and San Luis Obispo law firm has the knowledge and resources to be your Business Lawyers and Real Estate Attorneys. If you’ve been the victim of a real estate, business, loan modification or foreclosure scam or fraud, be sure to hire a law firm with experience in loan modification, foreclosure and real estate fraud in California and who will endeavor to ensure that your rights are properly represented.

 

To learn more about the statutes which regulate loan modification and foreclosure consultants, or for legal representation, call the Law Offices of R. Sebastian Gibson at any of the numbers on our website at http://www.SebastianGibsonLaw.com .

R. Sebastian Gibson
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Foreclosure in Nevada?

How, Whys, and Defense?

By

Malik W. Ahmad Attorney at Law

WWW.fastbankruptcynevada.com

 [Malik Ahmad is a licensed attorney and admitted to practice to the Supreme Court of Nevada. Malik Ahmad is a solo practitioner and has his own law office in Las Vegas Nevada. Malik Ahmad is admitted to practice in all the courts in State of Nevada. His areas of practice includes bankruptcy, civil and business litigation as well as foreclosure defenses in Nevada.]

All loans in real estate property are considered secured loans. Whenever there is collateral attached to a loan, it is called secured loan.  Unsecured loans are mostly credit cards loans and has no collateral attached with them. Here, in Nevada, and in the real estate context, all loans are secured because they are attached with property. When a loan secured by your lender goes into default, the secured creditor has a right to initiate foreclosure proceedings to take over this collateral. The lender has two choices: one is judicial foreclosure, and the other is non judicial or statutory foreclosure.  Also, these days lenders are using other tactics like workout package, surrender deed in lieu of foreclosure, short sale, and of course the much touted loan modifications.

A foreclosure happens much after all these remedies or solutions are exhausted. Lenders does not like to lose money and like the homeowners wants to pursue all of the options at all the times. A workout package may or may not work because the lender is exploring all the choices where the homeowners can be made current. In a workout package, the lender sees your financial situation, the nature and value of your collateral and whether there are instant advantages which can be accomplished through the workout package. In almost all cases, sooner you talk to your lenders; they would suggest a workout package. The lender may send a workout package to you right away. There is a glimmer of hope for them to see their delinquent loan cured by your through this workout package. Also, it may follow a forbearance period. Just like borrowers, lenders are in a hurry to see a quick solution to this delinquency. Again, there is no uniform method of conducting such negotiation, each lender has their different guidelines and of course very skilled negotiator for this purpose.

A deed in lieu of foreclosure:

The borrower executes a deed where he conveys the property to the secured creditor in lieu of conducting the foreclosure sale. This way the lender becomes the owner of the property without going through the hassle of foreclosing and avoiding extra expenditure of publication. It is a voluntary matter from the borrower where no money in return can be expected. Sometime the borrower offers some money in exchange of clean returning the keys and up keeping the property during the transition times. This paper, however, only discusses situation after the workout package is exhausted or not discussed. There are some advantages of deed in lieu of foreclosure:

                1.            Quick negotiation process.

                2.            Borrower avoids negative publicity.

                3.            Less expensive for the lenders, does not pay for publication of notices.

                4.            No recordation of documents with the county or recorders office.

                5.            There is no public record of any kind created.

                6.            Borrower may obtain some legal as well financial concession from the lender.

               7.            May stay in the property for sometime without paying any mortgage payments.

                8.            The foreclosure process is lengthy and parties can avoid for some mutual benefits.

                 9.            Lenders can do to avoid potential bankruptcy problems.

                10.  The borrower can negotiate the reporting of foreclosure to the credit reporting agencies. A foreclosure on a credit agency is extremely damaging, and the creditors may be approached to report such foreclosure in a more human and decent way.

11.  The lenders can have an immediate possession of the property.

 12.   A deed in lieu of foreclosure does not eliminate junior encumbrances. The lender that takes a deed in lieu of foreclosure takes the title subject to those junior encumbrances. The lender takes over these encumbrances and therefore the rights of secondary lien holders.

13.          The lenders who accepts this deed in lieu of foreclosure also loses the right to pursue a deficiency judgment against the borrowers or guarantors either as a matter of law or as a matter of contract. See Maloney v. Boston five Cents Savings Bank FSB, 422 Mass. 431, 436, 663 N.E. 2d 811, 815 (1996). Both parties should pay particular notice to the doctrine of merger.

14.    Doctrine of Merger: When one party holds both a fee interest in property and lien on the same property, the lesser interest will merge into the greater interest. See Alladin Heating Corp. v. Trustee of the Central States Pension Plan, 93, Nev. 257 (1977) (holding that whether merger occurs is dependent upon the intent of the parties). If a merger occurs, junior liens increase in priority as a result of removal the senior lien held by the lender. If there are junior liens of the property, therefore, the lender may prefer that its higher priority lien remain of record after the conveyance by the deed in lieu.

 15.          Another pitfall is that if the borrower files a bankruptcy, this can be considered a collusive transaction. The bankruptcy code and state law allow a bankruptcy trustee to avoid certain transfers of property that are made prior to a bankruptcy filing known as “fraudulent transfers” 11 U.S.C. Section 548(a)(1)(B); NRS 112.180,., 190. A transfer of property through a deed in lieu of foreclosure is a voluntary transfer that is not subject to the “protections” of the foreclosure process. See Main v. Brim, 75 B.R. 322, 327 (Bankr. D.Az. 1987)

Foreclosure Process in General in Nevada:

                Most of the loans are premised upon continuous payments to the lenders. If these payments are not timely paid, or not continuously paid, the borrowers can start the foreclosure process. The lender reviews the loan documents and determines about the occurrence of a default. Failure to make loan payments triggers this default process. Also, it is contingent upon events which have not been corrected by payments or failure of a workout package.

                A trustee under a deed of trust may exercise its statutory power of sale without the judicial intervention. In Nevada, the foreclosure is mostly a statutory foreclosure. (NRS 107.080(1)). Judicial foreclosures are also permitted under Nevada law (NRS 40.430-40.450) but judicial foreclosures are not the preferred choice in Nevada for most of the lenders because of the looming danger of the right of redemption. Upon default, the initial step is for either the beneficiary or the trustee to execute a notice of breach and election to sell, which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b)). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to see must be recorded in the county in which the property encumbered by the trust deed is situated. This notice must also be mailed (notice of breach and election to sell) by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3)

Notice of Default and Election to Sell?

                1.   Must describe the property

                2.   Must describe the deficiency in performance of payment.

3.            May contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligations so permit (NRS 107.080(3).

 4.            Within 10 days of recording and mailing the notice of default to the trustor, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who has either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by register3ed or certified mail, return receipt requested. (NRS 107.090.)

 5.            Nevada laws make it immaterial whether the notice is actually received by the trustor. The notice is effective nonetheless. (Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P. Wd 462 (1971)

 6.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (referred to below as “trustor or interested person”) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. (NRS 108.080(3). If the trustor other interested persons “make good” the deficiency in payment or performance within the 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRS 107.080(2)(a), (3). The 35-day period in the statute exists independently of any notice or cure periods contained the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incidents to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment (NRS 107.080(3).

What is the Procedure for Trustee’s Sale?

                 When three months have elapsed from the date of the recordation of the notice of breach and election to sell, the trustee may give notice of the time and place of the trustee’s sale, which notice must be given in accordance with the statutory provisions for execution sales of real property – posted notice in three public places for 20 successive days and published once a week for three consecutive weeks. (NRS 107.080(4);231.130(1)©. The trustee’s sale may be held at the office of the trustee anywhere in Nevada, even if it is not in the county where the property being sold is located. (NRS 107.080(4).

                 If the power of sale is exercised in compliance with the Nevada statute, the purchaser is vested with the title of the trustor, without equity or right of redemption NRS 107.080(5).

What are the Guarantor’s Rights to Notice and Subrogation?

         The notice of breach and election to sell must be mailed by certified mail, postage prepaid, to each guarantor or surety of the debt at the address of each if known, or at the address of the trust property. The notice must also be mailed to any other obligor who has filed a request for a copy of the notice under NRS107.090. Failure to provide such notice would release that guarantor, surety or obligor from liability on the obligation. (NRS 107.095(1).

           Under NRs 107.095(3) a guaranty, surety or other obligor is not released if the required notice is give at least fifteen (15) days before the later of the expiration of the 35-day period described in NRs 107.080 or any extension of that period by the beneficiary, or if the notice of default is rescinded before the sale id advertised.

           Upon full satisfaction by the guarantor, surety or other obligor, other than the trustor, of the indebtedness secured by a mortgage or lien, the paying guarantor or obligor is entitled to enforce every remedy which the beneficiary has against the trustor, and is entitled to an assignment from the beneficiary of all of the rights the beneficiary then has by way of security for the payment or performance of the trustor. NRS 40-475 (1989). Such an obligor is also entitled to subrogation, junior only to the secured lender’s rights, in the case of partial satisfaction of the indebtedness. (NRS 40.485 (1989). These rights may only be waived by the guarantor, surety or other obligor after default. NRs 40.495(1)(1989).

What are the rights under One Action Rule?

In Nevada, a deficiency judgment can be filed under non statutory foreclosure provisions without having filed a judicial foreclosure.

                             What is a deed of Trust in Nevada?

         The most common type of security interest in real property in Nevada is a Deed of Trust. A DOT has three parties.

    Lender: It is the first party who is referred to as “Beneficiary.”

     Borrower: It is the second party who is referred to as the “Maker”, or “Grantor”, or  ”Trustor” who conveys legal title to the property to the Trustee.

      Trustee: This is the third party who holds legal title to the property.

     Process: A DOT can be foreclosed in a simple process and cheaper as well. A Trustee sells the property encumbered by the DOT. All the lender needs to do in order to foreclose on a DOT is to determine that an even of default has occurred under the DOT and have the trustee conduct non-judicial foreclosure proceedings. Here, in Nevada, the trustee sale does not entail redemption. The borrower, in Nevada, does not have the statutory rights of redemption unlike the judicial foreclosure where the right of redemption lasts one year. Compare NRs 107.080(5) (no right of redemption in a foreclosure on a DOT ) with NRs 21.210 (one year period of redemption).

Determination of Default.

 Your default notice also consists of a determination of default. It can be monetary or non monetary.  Monetary is when it is linked to borrowers failure to pay, failure to pay property taxes, failure to pay homeowners association assessments and failure to pay special improvements and other assessments against the property.  The non monetary events of default are spelled out in the notice of default and Deed of Trust as well as related loan documents. They can be failure to insure property, the failure to maintain debt service coverage ratios and waste.

Acceleration of Obligation:

 A trustee under a deed of trust may exercise its statutory power of sale (commencement of foreclosure process) without judicial intervention in Nevada. NRs 107.080(1). Judicial foreclosure is also permitted under Nevada laws though seldom exercised. (NRs 40.430-40-450). They carry with them a one year right of redemption which lenders does not like it as they like to close this chapter once for all.

Steps in Foreclosure In Nevada:

1.            The beneficiary or the trustee to execute a notice of breach and election to sell which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to sell must be recorded in the county in which the property encumbered by the trust deed is situated. The notice of breach and election to sell must also be mailed by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3).

 2.            The notice and election must describe the deficiency in performance or payment, and may contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligation so permit. (NRS 107.080(3).

 3.            Within ten days of recording and mailing to the trustor the notice of default, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who had either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by registered or certified mail, return receipt requested. (NRS 107.90)

 4.            Under Nevada law, it is immaterial whether the notice is actually received by the trustor. Turner v. Dewco Services, Inc., 87 Nev 14. 479 P.2d 462 (1971).

 5.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (trustor or interested persons) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. NRS 107.080(3). If the trustor or other interested person “make good” the deficiency in payment or performance within 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRs 107.80(2)(a), (3). The 35-day period in the statue exists independently of any notice or cure periods contained in the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment. NRS 107.080(3).

 6.            Nevada Revised Statutes Chapter 107 governs Deeds of Trusts. The transfer of real property may be made in trust to secure loans and other obligations. See NRs 107.020. In the event a transfer is made in trust to secure payment, the Trustee is granted a power of sale which may be exercised if an event of default has occurred. See generally NRS 107.080.

 How a Foreclosure Process in Nevada is Commenced?

1.            The lender must first determine that an event of default has taken place.

2.            The lender employs the Trustee or a successor.

3.            The Trustee will prepare and record in the Office of the County of Records of the County in which the property is located a Notice of Default and Election To Sell. (NRS 107.080).

 4.            The Notice of Default and Election to Sell must be mailed by registered or certified mail, return receipt requested Election to Sell must be mailed by registered or certified mail, return receipt requested and postage prepaid, to the grantor of the Deed of Trust, the person who holds title of record on the date of the Notice of Default and Election to Sell, each guarantor or surety of the debt, NRS 107.095(1), and any person who recorded a request for a Notice of Default and Election to Sell. (NRS 107.090.

 5.            On the first day after the Notice of Default and Election to Sell is recorded and sent by mail to all interested parties, the borrower and the other obligors are then given 35 days to make good the deficiency in payment or performance. NRs 107.080(2)(a)(2). This essentially allows the borrower or other obligors to de-accelerate the default under the Deed of Trust and terminate the foreclosure proceedings.

 6.            In the event the borrower or other party in interest fails to cure the deficiency in payment or performance, the Trustee must wait until the expiration of three months following the recording of the Notice of Default and Election to Sell (55 days after the 35 day reinstatement period expires) before giving notice of the time and the place for the sale of the real property (NRS 107.080). The notice of the time and place for the sale of the real property must be published in accordance with Nevada’s execution statutes.

 Requirements of Publication for the Notice Under Nevada Laws

 Nevada statute requires the following publication of the notice of the date, time and place of the sale:

 (1) Personal service or service by registered mail to the last known address of each person entitled to Notice of Default and Election to Sell;

  (2) The posting of a similar notice particularly describing the property , for twenty days successively, in three public places of the township or city where the property is situated in or where the property is to be sold; and

  (3) Publishing a copy of the Notice three times, once each week for three successive weeks, in a newspaper, if there is one the county. (NRS 21.130(c).

  (4) In addition to the notice required by Nevada’s execution statutes, the Trustee is required to, at least twenty days before the date of the sale, deposit in the United States mail and envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the Notice of time and place of sale, addressed to each person who has recorded a Request for Notice of Default and Sale. See NRS 107.090(4).

  (5) If the Trustee fails to give any person liable to the beneficiary or any other person who has requested a Notice of Default and Sale the required notices, that person may be released of its obligation to the lender. NRs 107.095.

  (6) NRs 107.080(4) allows the Trustee to conduct the sale at the Trustee’s office.

  (7) At the foreclosure sale, the Trustee may sell the real property by public auction. Generally, the lender will provide the trustee with a minimum credit bid before the foreclosure sale. The amount of the credit bid may be for the full amount of the debt owed to the beneficiary or only a portion of what is owed to the beneficiary. Any person or entity may attend the foreclosure sale and bid for the real property.

 What is Nevada’s “One Action Rule”?

 Nevada has adopted a one-action rule. It provides that there may be only one action to collect a debt secured by a mortgage or other lien. The Nevada One Action rules provides: (NRs 40.430(1)-(3).

             1.            There may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provision of this section and NRS 40.433 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale or the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRs 40.462.

                 2.            This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred.

                 3.            A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

 Conclusion: The Foreclosure–The End of the Dream:

        The foreclosure is the final and definitive step and the end of the whole nightmare process. There is no right of redemption for a non judicial foreclosure in Nevada. The acceptance of the winning bid concludes the bidding process. The execution sale is final and deprives the debtor of any entitlement to the rights of ownership in the property. It is final elimination of any liens on the property along with the junior encumbrances.

What is right of Redemption?

         Few words on redemption: The foreclosure process may not be final unless a final remedy can be exercise in Nevada, and that is called right of redemption. There is no redemption in non judicial foreclosures. However, there is one year period of redemption in a judicial foreclosure sale in Nevada. Right of redemption is paying off all the existing monetary obligations up to and before the final fall of the hammer. The full amount may consist of all delinquent amounts, plus interest and attorney fees and other publication costs. Under Nevada law, there are no rights of redemption in connection with a properly conducted non-judicial foreclosure sale. NRS 107.080(5). There is one year right of redemption in a judicial foreclosure sale (NRS 21.210)

 What is Deficiency Judgment, and Where This Money Will Come From?

                 As it is happening quite often these days, the Trustee will sell property at a foreclosure sale for less than the amount which is owed to the creditor or beneficiary under the Deed of Trust. Deficiency judgments are governed by NRs 40.451 to 40.459. The beneficiary must file the deficiency action within six (6) months after the date of the foreclosure sale or the deficiency action will be time barred. Specifically, NRs 40.455(1) provides:

 Upon application of the judgment creditor or the beneficiary of the deed of trust within six months after the date of the foreclosure sale or the Trustee’s sale held pursuant to NRs 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or beneficiary of the deed of trust if it appears from the sheriff’s return or the recital of consideration and the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively. NRS 40.455(1)

 Nevada law places stringent limitations on the amount of a money judgment, which may be recovered against the debtor, guarantor or surety who is personally liable for the deficiency. The court shall not render a deficiency judgment for more than:

 1.     The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the  sale; or

 2.      The amount which is the difference between the amounts for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lessor amount.

 3.       The court may also consider expert appraisal testimony to evaluate the fair value of the property.

 4.      The junior lien holder if their rights are not properly extinguished can also sue for deficiency judgment.

 5.     Nevada law provides that the anti deficiency legislation protects a guarantor and any other entity that is personally liable for the debt. See generally NRS 40.459.

 

Malik Ahmad Attorney at law
http://www.articlesbase.com/bankruptcy-articles/foreclosure-in-nevada-myths-mysteries-740739.html

Foreclosure in Nevada?

How, Whys, and Defense?

By

Malik W. Ahmad Attorney at Law

WWW.fastbankruptcynevada.com

 [Malik Ahmad is a licensed attorney and admitted to practice to the Supreme Court of Nevada. Malik Ahmad is a solo practitioner and has his own law office in Las Vegas Nevada. Malik Ahmad is admitted to practice in all the courts in State of Nevada. His areas of practice includes bankruptcy, civil and business litigation as well as foreclosure defenses in Nevada.]

All loans in real estate property are considered secured loans. Whenever there is collateral attached to a loan, it is called secured loan.  Unsecured loans are mostly credit cards loans and has no collateral attached with them. Here, in Nevada, and in the real estate context, all loans are secured because they are attached with property. When a loan secured by your lender goes into default, the secured creditor has a right to initiate foreclosure proceedings to take over this collateral. The lender has two choices: one is judicial foreclosure, and the other is non judicial or statutory foreclosure.  Also, these days lenders are using other tactics like workout package, surrender deed in lieu of foreclosure, short sale, and of course the much touted loan modifications.

A foreclosure happens much after all these remedies or solutions are exhausted. Lenders does not like to lose money and like the homeowners wants to pursue all of the options at all the times. A workout package may or may not work because the lender is exploring all the choices where the homeowners can be made current. In a workout package, the lender sees your financial situation, the nature and value of your collateral and whether there are instant advantages which can be accomplished through the workout package. In almost all cases, sooner you talk to your lenders; they would suggest a workout package. The lender may send a workout package to you right away. There is a glimmer of hope for them to see their delinquent loan cured by your through this workout package. Also, it may follow a forbearance period. Just like borrowers, lenders are in a hurry to see a quick solution to this delinquency. Again, there is no uniform method of conducting such negotiation, each lender has their different guidelines and of course very skilled negotiator for this purpose.

A deed in lieu of foreclosure:

The borrower executes a deed where he conveys the property to the secured creditor in lieu of conducting the foreclosure sale. This way the lender becomes the owner of the property without going through the hassle of foreclosing and avoiding extra expenditure of publication. It is a voluntary matter from the borrower where no money in return can be expected. Sometime the borrower offers some money in exchange of clean returning the keys and up keeping the property during the transition times. This paper, however, only discusses situation after the workout package is exhausted or not discussed. There are some advantages of deed in lieu of foreclosure:

                1.            Quick negotiation process.

                2.            Borrower avoids negative publicity.

                3.            Less expensive for the lenders, does not pay for publication of notices.

                4.            No recordation of documents with the county or recorders office.

                5.            There is no public record of any kind created.

                6.            Borrower may obtain some legal as well financial concession from the lender.

               7.            May stay in the property for sometime without paying any mortgage payments.

                8.            The foreclosure process is lengthy and parties can avoid for some mutual benefits.

                 9.            Lenders can do to avoid potential bankruptcy problems.

                10.  The borrower can negotiate the reporting of foreclosure to the credit reporting agencies. A foreclosure on a credit agency is extremely damaging, and the creditors may be approached to report such foreclosure in a more human and decent way.

11.  The lenders can have an immediate possession of the property.

 12.   A deed in lieu of foreclosure does not eliminate junior encumbrances. The lender that takes a deed in lieu of foreclosure takes the title subject to those junior encumbrances. The lender takes over these encumbrances and therefore the rights of secondary lien holders.

13.          The lenders who accepts this deed in lieu of foreclosure also loses the right to pursue a deficiency judgment against the borrowers or guarantors either as a matter of law or as a matter of contract. See Maloney v. Boston five Cents Savings Bank FSB, 422 Mass. 431, 436, 663 N.E. 2d 811, 815 (1996). Both parties should pay particular notice to the doctrine of merger.

14.    Doctrine of Merger: When one party holds both a fee interest in property and lien on the same property, the lesser interest will merge into the greater interest. See Alladin Heating Corp. v. Trustee of the Central States Pension Plan, 93, Nev. 257 (1977) (holding that whether merger occurs is dependent upon the intent of the parties). If a merger occurs, junior liens increase in priority as a result of removal the senior lien held by the lender. If there are junior liens of the property, therefore, the lender may prefer that its higher priority lien remain of record after the conveyance by the deed in lieu.

 15.          Another pitfall is that if the borrower files a bankruptcy, this can be considered a collusive transaction. The bankruptcy code and state law allow a bankruptcy trustee to avoid certain transfers of property that are made prior to a bankruptcy filing known as “fraudulent transfers” 11 U.S.C. Section 548(a)(1)(B); NRS 112.180,., 190. A transfer of property through a deed in lieu of foreclosure is a voluntary transfer that is not subject to the “protections” of the foreclosure process. See Main v. Brim, 75 B.R. 322, 327 (Bankr. D.Az. 1987)

Foreclosure Process in General in Nevada:

                Most of the loans are premised upon continuous payments to the lenders. If these payments are not timely paid, or not continuously paid, the borrowers can start the foreclosure process. The lender reviews the loan documents and determines about the occurrence of a default. Failure to make loan payments triggers this default process. Also, it is contingent upon events which have not been corrected by payments or failure of a workout package.

                A trustee under a deed of trust may exercise its statutory power of sale without the judicial intervention. In Nevada, the foreclosure is mostly a statutory foreclosure. (NRS 107.080(1)). Judicial foreclosures are also permitted under Nevada law (NRS 40.430-40.450) but judicial foreclosures are not the preferred choice in Nevada for most of the lenders because of the looming danger of the right of redemption. Upon default, the initial step is for either the beneficiary or the trustee to execute a notice of breach and election to sell, which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b)). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to see must be recorded in the county in which the property encumbered by the trust deed is situated. This notice must also be mailed (notice of breach and election to sell) by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3)

Notice of Default and Election to Sell?

                1.   Must describe the property

                2.   Must describe the deficiency in performance of payment.

3.            May contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligations so permit (NRS 107.080(3).

 4.            Within 10 days of recording and mailing the notice of default to the trustor, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who has either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by register3ed or certified mail, return receipt requested. (NRS 107.090.)

 5.            Nevada laws make it immaterial whether the notice is actually received by the trustor. The notice is effective nonetheless. (Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P. Wd 462 (1971)

 6.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (referred to below as “trustor or interested person”) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. (NRS 108.080(3). If the trustor other interested persons “make good” the deficiency in payment or performance within the 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRS 107.080(2)(a), (3). The 35-day period in the statute exists independently of any notice or cure periods contained the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incidents to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment (NRS 107.080(3).

What is the Procedure for Trustee’s Sale?

                 When three months have elapsed from the date of the recordation of the notice of breach and election to sell, the trustee may give notice of the time and place of the trustee’s sale, which notice must be given in accordance with the statutory provisions for execution sales of real property – posted notice in three public places for 20 successive days and published once a week for three consecutive weeks. (NRS 107.080(4);231.130(1)©. The trustee’s sale may be held at the office of the trustee anywhere in Nevada, even if it is not in the county where the property being sold is located. (NRS 107.080(4).

                 If the power of sale is exercised in compliance with the Nevada statute, the purchaser is vested with the title of the trustor, without equity or right of redemption NRS 107.080(5).

What are the Guarantor’s Rights to Notice and Subrogation?

         The notice of breach and election to sell must be mailed by certified mail, postage prepaid, to each guarantor or surety of the debt at the address of each if known, or at the address of the trust property. The notice must also be mailed to any other obligor who has filed a request for a copy of the notice under NRS107.090. Failure to provide such notice would release that guarantor, surety or obligor from liability on the obligation. (NRS 107.095(1).

           Under NRs 107.095(3) a guaranty, surety or other obligor is not released if the required notice is give at least fifteen (15) days before the later of the expiration of the 35-day period described in NRs 107.080 or any extension of that period by the beneficiary, or if the notice of default is rescinded before the sale id advertised.

           Upon full satisfaction by the guarantor, surety or other obligor, other than the trustor, of the indebtedness secured by a mortgage or lien, the paying guarantor or obligor is entitled to enforce every remedy which the beneficiary has against the trustor, and is entitled to an assignment from the beneficiary of all of the rights the beneficiary then has by way of security for the payment or performance of the trustor. NRS 40-475 (1989). Such an obligor is also entitled to subrogation, junior only to the secured lender’s rights, in the case of partial satisfaction of the indebtedness. (NRS 40.485 (1989). These rights may only be waived by the guarantor, surety or other obligor after default. NRs 40.495(1)(1989).

What are the rights under One Action Rule?

In Nevada, a deficiency judgment can be filed under non statutory foreclosure provisions without having filed a judicial foreclosure.

                             What is a deed of Trust in Nevada?

         The most common type of security interest in real property in Nevada is a Deed of Trust. A DOT has three parties.

    Lender: It is the first party who is referred to as “Beneficiary.”

     Borrower: It is the second party who is referred to as the “Maker”, or “Grantor”, or  ”Trustor” who conveys legal title to the property to the Trustee.

      Trustee: This is the third party who holds legal title to the property.

     Process: A DOT can be foreclosed in a simple process and cheaper as well. A Trustee sells the property encumbered by the DOT. All the lender needs to do in order to foreclose on a DOT is to determine that an even of default has occurred under the DOT and have the trustee conduct non-judicial foreclosure proceedings. Here, in Nevada, the trustee sale does not entail redemption. The borrower, in Nevada, does not have the statutory rights of redemption unlike the judicial foreclosure where the right of redemption lasts one year. Compare NRs 107.080(5) (no right of redemption in a foreclosure on a DOT ) with NRs 21.210 (one year period of redemption).

Determination of Default.

 Your default notice also consists of a determination of default. It can be monetary or non monetary.  Monetary is when it is linked to borrowers failure to pay, failure to pay property taxes, failure to pay homeowners association assessments and failure to pay special improvements and other assessments against the property.  The non monetary events of default are spelled out in the notice of default and Deed of Trust as well as related loan documents. They can be failure to insure property, the failure to maintain debt service coverage ratios and waste.

Acceleration of Obligation:

 A trustee under a deed of trust may exercise its statutory power of sale (commencement of foreclosure process) without judicial intervention in Nevada. NRs 107.080(1). Judicial foreclosure is also permitted under Nevada laws though seldom exercised. (NRs 40.430-40-450). They carry with them a one year right of redemption which lenders does not like it as they like to close this chapter once for all.

Steps in Foreclosure In Nevada:

1.            The beneficiary or the trustee to execute a notice of breach and election to sell which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to sell must be recorded in the county in which the property encumbered by the trust deed is situated. The notice of breach and election to sell must also be mailed by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3).

 2.            The notice and election must describe the deficiency in performance or payment, and may contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligation so permit. (NRS 107.080(3).

 3.            Within ten days of recording and mailing to the trustor the notice of default, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who had either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by registered or certified mail, return receipt requested. (NRS 107.90)

 4.            Under Nevada law, it is immaterial whether the notice is actually received by the trustor. Turner v. Dewco Services, Inc., 87 Nev 14. 479 P.2d 462 (1971).

 5.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (trustor or interested persons) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. NRS 107.080(3). If the trustor or other interested person “make good” the deficiency in payment or performance within 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRs 107.80(2)(a), (3). The 35-day period in the statue exists independently of any notice or cure periods contained in the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment. NRS 107.080(3).

 6.            Nevada Revised Statutes Chapter 107 governs Deeds of Trusts. The transfer of real property may be made in trust to secure loans and other obligations. See NRs 107.020. In the event a transfer is made in trust to secure payment, the Trustee is granted a power of sale which may be exercised if an event of default has occurred. See generally NRS 107.080.

 How a Foreclosure Process in Nevada is Commenced?

1.            The lender must first determine that an event of default has taken place.

2.            The lender employs the Trustee or a successor.

3.            The Trustee will prepare and record in the Office of the County of Records of the County in which the property is located a Notice of Default and Election To Sell. (NRS 107.080).

 4.            The Notice of Default and Election to Sell must be mailed by registered or certified mail, return receipt requested Election to Sell must be mailed by registered or certified mail, return receipt requested and postage prepaid, to the grantor of the Deed of Trust, the person who holds title of record on the date of the Notice of Default and Election to Sell, each guarantor or surety of the debt, NRS 107.095(1), and any person who recorded a request for a Notice of Default and Election to Sell. (NRS 107.090.

 5.            On the first day after the Notice of Default and Election to Sell is recorded and sent by mail to all interested parties, the borrower and the other obligors are then given 35 days to make good the deficiency in payment or performance. NRs 107.080(2)(a)(2). This essentially allows the borrower or other obligors to de-accelerate the default under the Deed of Trust and terminate the foreclosure proceedings.

 6.            In the event the borrower or other party in interest fails to cure the deficiency in payment or performance, the Trustee must wait until the expiration of three months following the recording of the Notice of Default and Election to Sell (55 days after the 35 day reinstatement period expires) before giving notice of the time and the place for the sale of the real property (NRS 107.080). The notice of the time and place for the sale of the real property must be published in accordance with Nevada’s execution statutes.

 Requirements of Publication for the Notice Under Nevada Laws

 Nevada statute requires the following publication of the notice of the date, time and place of the sale:

 (1) Personal service or service by registered mail to the last known address of each person entitled to Notice of Default and Election to Sell;

  (2) The posting of a similar notice particularly describing the property , for twenty days successively, in three public places of the township or city where the property is situated in or where the property is to be sold; and

  (3) Publishing a copy of the Notice three times, once each week for three successive weeks, in a newspaper, if there is one the county. (NRS 21.130(c).

  (4) In addition to the notice required by Nevada’s execution statutes, the Trustee is required to, at least twenty days before the date of the sale, deposit in the United States mail and envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the Notice of time and place of sale, addressed to each person who has recorded a Request for Notice of Default and Sale. See NRS 107.090(4).

  (5) If the Trustee fails to give any person liable to the beneficiary or any other person who has requested a Notice of Default and Sale the required notices, that person may be released of its obligation to the lender. NRs 107.095.

  (6) NRs 107.080(4) allows the Trustee to conduct the sale at the Trustee’s office.

  (7) At the foreclosure sale, the Trustee may sell the real property by public auction. Generally, the lender will provide the trustee with a minimum credit bid before the foreclosure sale. The amount of the credit bid may be for the full amount of the debt owed to the beneficiary or only a portion of what is owed to the beneficiary. Any person or entity may attend the foreclosure sale and bid for the real property.

 What is Nevada’s “One Action Rule”?

 Nevada has adopted a one-action rule. It provides that there may be only one action to collect a debt secured by a mortgage or other lien. The Nevada One Action rules provides: (NRs 40.430(1)-(3).

             1.            There may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provision of this section and NRS 40.433 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale or the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRs 40.462.

                 2.            This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred.

                 3.            A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

 Conclusion: The Foreclosure–The End of the Dream:

        The foreclosure is the final and definitive step and the end of the whole nightmare process. There is no right of redemption for a non judicial foreclosure in Nevada. The acceptance of the winning bid concludes the bidding process. The execution sale is final and deprives the debtor of any entitlement to the rights of ownership in the property. It is final elimination of any liens on the property along with the junior encumbrances.

What is right of Redemption?

         Few words on redemption: The foreclosure process may not be final unless a final remedy can be exercise in Nevada, and that is called right of redemption. There is no redemption in non judicial foreclosures. However, there is one year period of redemption in a judicial foreclosure sale in Nevada. Right of redemption is paying off all the existing monetary obligations up to and before the final fall of the hammer. The full amount may consist of all delinquent amounts, plus interest and attorney fees and other publication costs. Under Nevada law, there are no rights of redemption in connection with a properly conducted non-judicial foreclosure sale. NRS 107.080(5). There is one year right of redemption in a judicial foreclosure sale (NRS 21.210)

 What is Deficiency Judgment, and Where This Money Will Come From?

                 As it is happening quite often these days, the Trustee will sell property at a foreclosure sale for less than the amount which is owed to the creditor or beneficiary under the Deed of Trust. Deficiency judgments are governed by NRs 40.451 to 40.459. The beneficiary must file the deficiency action within six (6) months after the date of the foreclosure sale or the deficiency action will be time barred. Specifically, NRs 40.455(1) provides:

 Upon application of the judgment creditor or the beneficiary of the deed of trust within six months after the date of the foreclosure sale or the Trustee’s sale held pursuant to NRs 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or beneficiary of the deed of trust if it appears from the sheriff’s return or the recital of consideration and the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively. NRS 40.455(1)

 Nevada law places stringent limitations on the amount of a money judgment, which may be recovered against the debtor, guarantor or surety who is personally liable for the deficiency. The court shall not render a deficiency judgment for more than:

 1.     The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the  sale; or

 2.      The amount which is the difference between the amounts for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lessor amount.

 3.       The court may also consider expert appraisal testimony to evaluate the fair value of the property.

 4.      The junior lien holder if their rights are not properly extinguished can also sue for deficiency judgment.

 5.     Nevada law provides that the anti deficiency legislation protects a guarantor and any other entity that is personally liable for the debt. See generally NRS 40.459.

 

Malik Ahmad Attorney at law
http://www.articlesbase.com/bankruptcy-articles/foreclosure-in-nevada-myths-mysteries-740739.html

If you are behind on your monthly mortgage payment, because of a possible increasing adjustable rate loan or any additional financial problems, there are some ways for you to stop the foreclosure process and keep your home. It is crucial to ask your lender for assistance once you realize your mortgage payment is going to be late. Unfortunately, most home owners don’t request assistance until they are literally escorted from their home by the police.

By asking your lender for assistance once you know that there will be a payment problem. Most lenders will give you a loan modification before there is something negative on your credit report. It is very simple to request assistance before you are just days from having your home sold from underneath you.

If you do not have the time and persistence to ask your lender or various departments for a loan modification, there are loan modification companies that do this for a fee. The fees and range of services can vary from one company to another so it is suggested you contact a few until you are comfortable about the charges and what is included in the services. If you choose to hire a loan modification company it is recommended to get the services they offered to you in writing. As a client, you want to be certain that they finish each service that you are to receive for your loan modification program.

Even if you have waited until very late in the default or foreclosure process, you can make a final push to save your home by asking for a loan modification. Your current lender may accept and add any delinquent payments to the principal balance of your loan permitting you to be current with your mortgage payment. When requesting a loan modification directly from your lender ask for a fixed rate mortgage payment so it won’t swing up periodically.

Due to the current mortgage crisis from sub-prime loans, stated income loans, ridiculous option ARM loans and adjustable rate resets in the upcoming 18 months, an increasing number of mortgage payments, will become delinquent and begin the foreclosure process. Overall, borrowers prefer to stay borrowers and keep their homes should the lender accept you as a candidate. The earlier you begin requesting a loan modification, the easier it will be to receive the assistance you need from your lender. So, you have nothing to lose but your house if you take too long.

Frank Collins
http://www.articlesbase.com/mortgage-articles/prevent-a-foreclosure-with-a-loan-modification-738775.html

Is this what the people of America want, more spending and more debt?
Why does Obama keep doing what the people don’t want?

Hopefully Obama’s embrace of Harry Reid
will be his kiss of death

If you are behind on your monthly mortgage payment, because of a possible increasing adjustable rate loan or any additional financial problems, there are some ways for you to stop the foreclosure process and keep your home. It is crucial to ask your lender for assistance once you realize your mortgage payment is going to be late. Unfortunately, most home owners don’t request assistance until they are literally escorted from their home by the police.

By asking your lender for assistance once you know that there will be a payment problem. Most lenders will give you a loan modification before there is something negative on your credit report. It is very simple to request assistance before you are just days from having your home sold from underneath you.

If you do not have the time and persistence to ask your lender or various departments for a loan modification, there are loan modification companies that do this for a fee. The fees and range of services can vary from one company to another so it is suggested you contact a few until you are comfortable about the charges and what is included in the services. If you choose to hire a loan modification company it is recommended to get the services they offered to you in writing. As a client, you want to be certain that they finish each service that you are to receive for your loan modification program.

Even if you have waited until very late in the default or foreclosure process, you can make a final push to save your home by asking for a loan modification. Your current lender may accept and add any delinquent payments to the principal balance of your loan permitting you to be current with your mortgage payment. When requesting a loan modification directly from your lender ask for a fixed rate mortgage payment so it won’t swing up periodically.

Due to the current mortgage crisis from sub-prime loans, stated income loans, ridiculous option ARM loans and adjustable rate resets in the upcoming 18 months, an increasing number of mortgage payments, will become delinquent and begin the foreclosure process. Overall, borrowers prefer to stay borrowers and keep their homes should the lender accept you as a candidate. The earlier you begin requesting a loan modification, the easier it will be to receive the assistance you need from your lender. So, you have nothing to lose but your house if you take too long.

Frank Collins
http://www.articlesbase.com/mortgage-articles/prevent-a-foreclosure-with-a-loan-modification-738775.html

For most of us in the middle class, building a home is a lifetime project. Most of us plough the major part of our savings into making the dream home where we can hope to be safe, and comfortable. But what if those very dreams are threatened by foreclosure? We can stop foreclosure in many cases. With some foreclosure help, you’ll know what to do in the situation to Prevent Foreclosure from snatching your home.

One important thing you need to remember is that to stop foreclosure, you are going to have to repay back that loan. All the measures that you can take will only help to delay, or reschedule the repayments. They will not give you a free ticket to keep your home. So seek foreclosure help only if your intent is to ultimate repay the loan.

Here’s another reason why you will want to avoid foreclosure. Foreclosure not only takes away your property it also lowers your credit ranking. Once you’ve gone through foreclosure, it will be harder for you to get loans. That’s why it is even more important for you to seek foreclosure help and stop foreclosure to save your credit rating.

The first thing that you should do to stop foreclosure is talk to your lender. Most lenders don’t want to go for foreclosure because it’s a tedious process and often results in a loss for them. They’d rather have you repay the loan. If you explain your financial predicament to the lender, and also give them a reasonable time period in which you can start repaying your loan, you won’t even need foreclosure help as the lender might agree to reschedule your payments.

The second thing you need to do is to continue living in the home that threatened by foreclosure. If you live in the house, the lender will find it harder to foreclose. So to stop foreclosure, and to force the lender to be more generous with the deal they give you, live in the house. That’s what you’ll hear when you seek professional foreclosure help.

One of the most viable options to re-work your debt is to ask for special forbearance. If you can show conclusive evidence to your lender that there’s a negative change in your financial position, or your living expenses have gone up, the lender might give you this options and you’ll be able to stop foreclosure. Under this system the lender will temporarily reduce your repayments or even suspend them for a while. You’ll also have to show the lender that you’ll be able stick to the new plan.

The second option is to modify your mortgage and increase the loan’s term. Stretched over a longer term, the monthly installments will go down. You’ll have to convince the lender that you’ll stick to the new payment plan to stop foreclosure. So if you think you can repay your loan over a longer period of time, contact your lender for foreclosure help.

The third option is to seek a little help from FHA insurance fund. The lender can ask the insurance fund to pay some amount on your behalf to bring your mortgage to current levels. You’ll have to sign an promissory note and pay back FHA later. The amount that FHA gives you is interest free. Seeking foreclosure help this way is viable if you really wan to stop foreclosure.

For more resources about stop foreclosure or even about foreclosure help please review this page http://www.delaybankforeclosure.com

Groshan Fabiola
http://www.articlesbase.com/finance-articles/prevent-foreclosure-from-snatching-your-home-726097.html

My parents are facing a foreclosure. They were notified that the process will be starting this month. My mother does not work and is on disability for medical problems. My father is a self employed truck driver who owns his own big truck. He has always made enough for them to be comfortable and to pay their $2200 monthly mortgage payment, along with other monthly bills and business expenses. This year has slowed down quite considerably and he is working about 50% of the time. He is having to take more out of state jobs versus the local ones that he was getting previously. Out of state jobs have more expenses such as fuel, food, etc. When my mother called to discuss possible loan modification, the bank told her they have too much income to qualify. My father is working his butt off and sometimes after his truck maintenance and repair expenses, is coming out in the negative! They have completely gone through their nice-sized savings accounts trying to make ends meet. Do banks consider business expenses when looking at income, or is income all that is considered? I hate to see them lose their home. They saved money my whole childhood to buy it and finally 14 years ago were able to buy it, and they wanted to live there until their old age…Thanks for any suggestions anyone can give!

Your parents need to talk to some professionals. They have options but they need to start now! Most attorneys and loan modification companies will give them a free consultation. There are also plenty of government and non-profits that will help. They just need to reach out.

The Federal Government has set up a website to educate homeowners about the loan modification process. See http://www.makinghomesaffordable.gov.

You don’t need to pay a company to obtain a loan modification. However, sometimes it can be better to have someone, such as a lawyer or credit counselor, negotiate on your behalf. If you qualify, talk to as many experts as you can prior to contacting your bank. Many of these services will give you a free consultation. A good site I used was www.credit-hub.net/loan-modification where I entered some details about my current mortgage and the company got back to me multiple loan modification proposals.

If you are finding you are needing your 1st mortgage modification, you are not alone. Take a look at this informative article about the 1st mortgage modification, and find out how this program can affect you.

A 1st mortgage modification will no doubt be a whirlwind of new information for you. Nevertheless, if it allows you to Prevent Foreclosure and to keep your house and possessions, it may well be worth it. Some of the things involved in 1st mortgage modification are; Capitalization & Re-amortization, a lowering of interest rates, extended amortization, a partial forebearance of the principal, and a test called an “NPV”.  The NPV is ” Net Present Value Comparison “, and has to do with the overall value of the loan modifications.

The 1st mortgage modification is determined by preset conditions outlined in the above attributes of this mortgage loan modification program. Such things as delinquent interest, taxes, lawyer fees, and other things are factored in. It is very possible that unpaid late charges can be waived, which is good news. The 1st mortgage modification will hopefully start a decrease in the interest rate to as low as three percent. This decrease is accomplished in increments, but will go up again after five years.

The 1st mortgage modification has the effect of delaying the payment of the principal when the loan itself is paid in full. This option is not currently available for those who have had a Freddie Mac or Fannie Mae loan. This year as the option arm loans start to balloon in their payments the 1st mortgage modification will more than likely need to be presented to many homeowners in the USA. Look at this as an option to avoid foreclosure and bankruptcy. Creditors are decreasing their desire to foreclose anyway because of the way the price of housing has fallen. This is good news and if you truly need a 1st mortgage modification, it will more than likely be a welcome option.

Chad Fisher
http://www.articlesbase.com/mortgage-articles/1st-mortage-modification-746584.html

If you are finding you are needing your 1st mortgage modification, you are not alone. Take a look at this informative article about the 1st mortgage modification, and find out how this program can affect you.

A 1st mortgage modification will no doubt be a whirlwind of new information for you. Nevertheless, if it allows you to Prevent Foreclosure and to keep your house and possessions, it may well be worth it. Some of the things involved in 1st mortgage modification are; Capitalization & Re-amortization, a lowering of interest rates, extended amortization, a partial forebearance of the principal, and a test called an “NPV”.  The NPV is ” Net Present Value Comparison “, and has to do with the overall value of the loan modifications.

The 1st mortgage modification is determined by preset conditions outlined in the above attributes of this mortgage loan modification program. Such things as delinquent interest, taxes, lawyer fees, and other things are factored in. It is very possible that unpaid late charges can be waived, which is good news. The 1st mortgage modification will hopefully start a decrease in the interest rate to as low as three percent. This decrease is accomplished in increments, but will go up again after five years.

The 1st mortgage modification has the effect of delaying the payment of the principal when the loan itself is paid in full. This option is not currently available for those who have had a Freddie Mac or Fannie Mae loan. This year as the option arm loans start to balloon in their payments the 1st mortgage modification will more than likely need to be presented to many homeowners in the USA. Look at this as an option to avoid foreclosure and bankruptcy. Creditors are decreasing their desire to foreclose anyway because of the way the price of housing has fallen. This is good news and if you truly need a 1st mortgage modification, it will more than likely be a welcome option.

Chad Fisher
http://www.articlesbase.com/mortgage-articles/1st-mortage-modification-746584.html