Part of my practice is litigating foreclosure cases. Okay, I wouldn’t call it a focus of my practice, but I would say that I have a fair amount of involvement in such cases at any given time. Sometimes people hold my office for foreclosure early on, while others come to my office for their divorce matter or their estate matter or something similar and through that work we discover a foreclosure problem that is looming and needs to be addressed.

I am not going to write about the various arguments, tactics, and problems one may encounter during a foreclosure matter. Instead, I’d like to focus on one aspect in particular: the seemingly deceptive approach taken by mortgage companies with their borrowers. Sound outrageous? Well, for me it is.

Here’s what happens: Something significant happens in a mortgage borrower’s life that causes them to be unable to pay their mortgage payments for whatever reason. The mortgage company naturally approaches this borrower and informs him of his late payments. At some point, if no remedy is reached, the mortgage company will sue the borrower in court for foreclosure, and this is where duplicity rears its head.

I am basing my thoughts here on literally dozens of foreclosure cases that have crossed my desk during my more than ten years of practicing law. I have seen this scenario play out over and over again with many unsuspecting customers acting in good faith.

Here’s what happens: the borrower is sued in foreclosure. If the borrower was not attentive before to try to remedy the problem, having the local bailiff knock on your door and give you papers saying that you are being sued to take your home will almost always make you realize and seek a solution. The borrower then contacts the mortgage company and hires some kind of “loss mitigation” office. Once that contact is made, the borrower and the mortgage company discuss various possible options for resolving the foreclosure case, be it restructuring the loan, seeking a deed in lieu of foreclosure, a short sale, or a payment. or looking to put the house up for sale, or any number of other options. During this time, the representative of the mortgage company with which the borrower interacts assures that he will do his best to resolve this matter and explore all viable options, etc., and that he will need a little time to review the documents exchanged. when looking for these options.

This is where the duplicity lies: while all of the above is happening between the borrower and the mortgage company, the mortgage company (virtually?) Never informs the borrower that despite all the options explored and no matter how productive their discussions are and finding a remedy are and regardless of how positive your conversations appear to be, the foreclosure litigation that occurs in court never stops proceeding. Virtually every client I’ve had over the years regarding an issue like this says the same thing: “Since I was making a lot of progress in resolving the matter with the mortgage company, I thought the Court case would not go forward. “.

In my early years of practice, I attributed it to clients who were naive, negligent, not too bright, or just plain lazy; However, as my years of practice increased and the number of foreclosure cases I handled increased, the story I heard from all of my clients in this type of situation continued to be much the same (as described above), including those clients who are objectively conscientious and intelligent. Given this, I realized that perhaps the problem is not with the clients but with the mixed message that the mortgage companies send them.

So what happens? While the borrower believes he is approaching a resolution to save his home or get him out of the foreclosure mess with a reasonable remedy by dealing with the mortgage company, the mortgage company’s attorney litigates the foreclosure case, by At the same time and without the borrower, he obtains a default judgment against the borrower and then seeks to put the real property in question for sale by the bailiff pursuant to the judgment. The borrower, who thinks that he is negotiating in good faith with the mortgage company in good faith and is nearing a resolution, is suddenly left blind when the mortgage company refuses to speak further and is suddenly informed that his house is will sell at auction in a few minutes. weeks regardless of your efforts to negotiate with the mortgage company.

Now, of course, the borrower is much further behind the eight ball than ever, as they now have to try to open the default judgment (which is not always allowed), try to stay the sheriff’s sale, and then litigate the foreclosure at despite everything. of the advances and guarantees that the mortgage company has made you personally.

So if you are part of a mortgage and you are having trouble paying it, let the above be a warning: just because the representative of the mortgage company is “nice” or assured you that they will seek a resolution. with you, and no matter how much progress you have made in seeking that resolution, always remember that the foreclosure case will NOT stop and you will have to defend yourself in court WHILE negotiating with the company for a resolution at the same time.