Law Office of Glenn F. Russell, Jr .
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Suite # 12
Fall River, Massachusetts  02720 
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Massachusetts Foreclosure Information

You suffer some type of setback (divorce, etc.) or your adjustable rate mortgage has just increased to the point that you will have great difficulty making future payments on time, what do you do?

• Take massive action Immediately !! (In the words of Anthony Robbins)
  This crucial step is the one thing many homeowners fail to do, they feel overwhelmed and resigned to their fate, when in some cases there were other options available if they only had acted IMMEDIATELY.
  
• Contact your lender at once, and explain the situation.
  If you foresee your "setback" as being somewhat short term, lenders will generally work with you as they really do not want to go through the expense of selling your home at a loss, and then have to hire a Realtor to sell it for them.
  
• Consumer Claims and Defenses
  
  • Massachusetts Procedural Damages
    • Authority for Foreclosure by Power of Sale
    • Proceeding for permission to foreclose under the Soldiers' and Sailors'
      Civil Relief Act
    • Injunction may be brought to prevent foreclosure sale
    • Defenses to competed foreclosure sale
      • Adequacy of Price
      • Foreclosure Sale no completed under State law.
      • Mortgage Obligations in conducting foreclosure sale
      • Other Defenses
    • When foreclosure has already occurred and mortgagor is being evicted by summary process (MGL ch. 239)
      • Bond required when foreclosed mortgagor appeals summary process judgment (MGL ch. 239 § 6)
        
  • Bankruptcy - Chapter 13
    
  • Truth in Lending Act (TILA)
    TILA is primarily a disclosure statute
    
    • What must be disclosed to a consumer?
      Rules vary depending on whether transaction is "open-end" (no fixed terms)or
      "closed-end" (fixed terms). First Home Mortgages and Home Improvement loaned                 are generally "closed-end".
      
    • Required Closed end disclosures
      required disclosures for closed end credit are set forth in :
      15 U.S.C. § 1638, Regulation Z § § 226.17 and 226.18( Bottom right on page 1 of PDF)
      Some of these include: Total Finance Charge, Amount Financed, Annual Percentage Rate
      Payment Schedule, Total Payments, Security Interests.
      
      These disclosures also must be "timely". That is they must be made in as such  way so that a consumer may review them before completing the transaction.
      
      These disclosures must also meet special formatting rules
      
      • Must be clear and conspicuous and reflect the legal obligations of the parties.
      • Separate from any other information.
      • In a form that the consumer may keep for their records.
        
    • Exceptions set forth in 15 U.S.C. § 1638, Regulation Z  226.4 
      
    • Remedies under TILA
      • Right of Rescission
        In mortgage loan cases, the impact of a successful TILA rescission can be quite dramatic because it:
        • Voids the security agreement
        • Can be a complete defense to foreclosure
        • Voids all finance charges and closing costs associated with the loan.
        • Allows the court to award statutory damages of $2,000 to $4,000, in the case of closed end real estate secured loans if the creditor fails to respond to a proper rescission notice.
      • The value of rescission to save homeowners from foreclosure by predatory lenders cannot be overstated. The lender (and assignee) literally must undo the deal if it violated certain requirements.
        
  • HomeOwnership and Equity Protection Act  (HOEPA) (15 U.S.C.§ 1602 ((aa))
    
    
    ** Information on this page taken from National Consumer Law Center Inc Materials and authors