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Law Helps Responsible Owners Get New Mortgage

Banks Need Original Loan Notes For Foreclosure, Advocate Says

POSTED: 9:20 pm PST November 5, 2008
UPDATED: 9:49 pm PST November 5, 2008

For those people who have purchased a home in Las Vegas over the last few years, many of them have seen their home's value depreciate so much they now owe more than their home is worth.

But consumer advocates say there is one law on the Nevada books that can help homeowners who are facing foreclosure but are current on their mortgages get the help they need.

"(Banks) are not trying to help those people who are trying to stay current," homeowner Stacy Hurston said.

Hurston and husband, Michael, were making their mortgage payments on time, but were facing foreclosure thanks to market instability.

"They were all saying 'Just skip a month -- skip a month and we'll work with you," Michael Hurston said. "'Yeah it'll hurt your credit, but we can get you in this great plan.'"

The Hurstons had read that some lenders were writing down the mortgages to the home's current market value, but their lender declined their application. In response to this trend, consumer advocate Jack Ferm started the U.S. Justice foundation.

"We're not seeing any meaningful modification where your home is worth $250,000, the mortgage is $500,000, alright let's rewrite it at $250,000." Ferm said. "We're not seeing any of that on a voluntary basis."

Ferm and his bullpen of attorneys file lawsuits to try and block foreclosures, which he said forces banks to renegotiate mortgages.

"The banks have created the problem, the banks need to fix the problem," he said. "They need to take the mortgage amount and reduce it to the current value, and yes, we can litigate because it is the bank's fault."

When these banks began offering sub-prime mortgages, Ferm said that some of them knew their borrowers could never repay the loan, leading to the collapse of the housing market.

"The banks are foreclosing at such a velocity and volume and then dumping the property cheaply, which brings down the whole market," he said.

Because many of these mortgages have been sold from bank-to-bank, Ferm believes the original note has been lost. Having the original not is important because Ferm said that -- without the original copy -- the bank can't legally foreclose and may give them incentive to settle out of court.

"If attorneys show that the bank has either lost the note, made a deceptive loan under Nevada law or there's fraud involved -- which generally we do see -- not only to they not have a claim against the borrower, but the borrower has a monetary damage claim against the bank," Ferm said.

This is not just a Nevada trend. The New York Supreme Court halted foreclosures in two separate cases because the banks couldn't produce the original notes.

Using this original-note clause, Ferm said he has managed to get banks to rework about 20 mortgages. He still has about 200 lawsuits working their way through the system, including one filed on behalf of he man who was about 48 hours away from being evicted.

Alex Soria tried in vain for more than a year to buy his son-in-law's home, but he said no one at the bank would respond. Soria, a mortgage broker, sensed the bank was more interested in foreclosing so it could collect the mortgage default insurance.

He hired Ferm, who immediately filed a restraining order and is now suing for fraud.

"People really need to stop walking away from their homes," Ferm said. "They need to stand up and fight. The banks cannot finance 80,000 lawsuits -- that's what we have potentially in Las Vegas. So if people stop giving in, they'll keep their homes."

Ferm charges a flat $2,500 fee for his services, but he expects to be busy for the next two or three years.

The president of the Nevada Bankers Association was unavailable to comment on some of the allegations laid out by Fern, as did the head of the Mortgage Bankers Association of Nevada.


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