What are the wrongful foreclosure elements that a mortgage company must prove in court to foreclose a home? Well, they need to prove that you are a risky risk, and that the balance of your mortgage payment will not cover any possible repairs to the property. In NY, the bank is also going to prove that the sale of your home would not result in any financial loss to them. This could include things like reducing the property taxes or increasing the homeowner's insurance. It could also mean that there is a conflict between the property taxes and the mortgage.
The first thing to do is contact an experienced foreclosure attorney. These attorneys will be able to tell the courts and the lender whether or not a loan note is an authentic negotiable instrument. A loan note must contain certain features, such as a clear title, a signed document that is dated and an interest in the property being purchased. Additionally, it should include a copy of the original note.
Another legal duty of the lender is to provide you with the proper legal forms required for the foreclosure process. These forms are called "Agency Instructions". If these instructions are not provided to you, and you try to use them in the foreclosure process, then you are being given a "service" instead of a legal duty. And, because you are not legally owed any money by Wells Fargo, there is no legal duty to pay them.
A further legal duty that you have when you buy a home is to promptly notify the lender of your intent to foreclose on the home. You are required to give them fourteen days notice. And fourteen days is not a small time! Your lender will want you to be very specific in your notification, so make sure you understand what is expected of you. Failure to notify the lender promptly results in your home going into foreclosure.
The final element of the legal responsibility of a mortgage lender in a Wells Fargo foreclosure is emotional distress. You are owed this emotional distress, and if you fail to notify the lender, then you are in breach of contract. This also goes for failure to correct poor information on your mortgage application.
There are two types of damages, a lender can be sued for when a homeowner is a victim of wrongful foreclosure. Actual damages are the money recovered by the bank after it sells the property at auction. These are sometimes called "reductions" because the bank is trying to recoup as much of the deficit as possible. Recovery of actual damages can take many months and even years.
It occurs if the foreclosure was deliberate. They refer to special damages that occur in lawsuits for foreclosure when a homeowner sues for money owed on the property after the foreclosure sale. These special damages may include punitive damages, for example, or they may be an award of compensation for loss of benefits and past due compensation for the remaining period of the mortgage. In the case of deliberate foreclosure, the bank has a legal obligation to bring the suit to an end. Once the foreclosure has been formally terminated, the bank cannot sue the homeowner for damages.
In addition to actual damages, special damages may also be awarded. They are only awarded in state court. If the foreclosure was deliberately done by the bank, these damages will likely be awarded by the court. If the homeowner hired a lawyer to represent her, these damages might also be awarded by the court. However, the actual amount of the damages will be different depending on the state and the jurisdiction.
When you need to get more information sources used to create this example on wrongful foreclosure elements, visit justia.
[Name of plaintiff] claims that [name of defendant] wrongly foreclosed on
[name of plaintiff]’s [home/specify other real property]. In order to
establish a wrongful foreclosure, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] caused a foreclosure sale of [name of
plaintiff]’s [home/specify other real property] under a power of sale
in a [mortgage/deed of trust];
2. That this sale was wrongful because [specify reason(s) supporting
illegality, fraud, or willful oppression];
3. That [name of plaintiff] tendered all amounts that were due under
the loan secured by the [mortgage/deed of trust], but [name of
defendant] [refused the tender]/[was excused from tendering all
amounts that were due under loan secured by the [mortgage/deed
of trust]];
4. [That [name of plaintiff] was not materially in breach of any other
condition and had not failed to perform any other material
requirement of the loan agreement that would otherwise justify
the foreclosure;]
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s actions were a substantial factor in
causing [name of plaintiff]’s harm.