Can I sue my mortgage company AFTER an Alabama foreclosure?
Can you sue after an Alabama foreclosure sale has happened?
Here’s your situation: you have already been foreclosed. Now you are wondering if you have any options about suing your mortgage company for the foreclosure.
You may. Let’s look at some common situations where you can sue your mortgage company after the foreclosure in order to get money damages and/or get the foreclosure undone. You want the foreclosure undone to save your home.
If you have any questions about if any of these apply to you, call us at 205-879-2447 or fill out the form below.
- You received a defective “default letter” or “notice of default”
- RESPA was violated in the foreclosure
- The foreclosure itself was defective under Alabama law
Let’s look at each of these so you can see if one or more of these might apply to you.
Did you receive a defective notice of default (default letter) before the foreclosure?
We talk in depth about notice of default or default letters.
But here’s the shorter version.
Normally your mortgage gives you the right to file a lawsuit to have your defenses to a default, acceleration, and the foreclosure heard by a judge. (Learn more about your mortgage here where we talk about the typical paragraph 22).
But often your default letter (notice of default) says something different. It does not tell you that you have the right to bring a court action on your defenses to a foreclosure.
When this happens, the foreclosure is normally invalid. It is improper.
This means you can attack it to have it done away with.
The reason is that mortgage companies must “strictly comply” with the notice requirements. This includes default notices or default letters. When they do not strictly comply, everything that follows that (including the foreclosure) is no good.
So it is mission critical to make sure and check out your mortgage and any default letter or notice of default you received. We can help you do this quickly — call us at 205-879-2447.
Did your mortgage company violate RESPA before the foreclosure?
RESPA is a powerful federal law — it stands for Real Estate Settlement Procedures Act.
Two common situations where an Alabama foreclosure will be illegal under RESPA.
First, the foreclosure happens when you are less than 120 days late on your mortgage.
So the sale happens on November 1, and you are paid through August 1. Therefore, you are 30 days late in August, 30 days late in September and 30 days late in October. That’s about 90 days. But the foreclosure happened on November 1. That’s not 120 days.
And actually, the 120-day rule means the first notice in the newspaper cannot be published until you are 120 days late. Meaning the foreclosure happens 30 days later so really you are at 150 days late at the earliest.
Second, the foreclosure happens when you applied for loss mitigation more than 37 days away from the foreclosure.
Loss mitigation is when you ask for help in stopping the foreclosure — it could be a loan modification, a short sale, a deed in lieu of foreclosure, etc.
Here’s the way it normally works.
You request from your mortgage company loss mitigation and they will send you a loss mitigation package.
You fill it out and send it in. (Warning: make sure you keep a full and complete copy of everything you send in. Because your mortgage company will often lie about receiving the package and will lie about what you sent).
Then your mortgage company tells you if you need to send additional information. Once it is complete, they evaluate you for loss mitigation. You will receive a letter telling you what you qualify for if you qualify for any loss mitigation.
Assuming you apply and fill out the package more than 37 days before a foreclosure, then the mortgage company normally must stop any foreclosure. Otherwise, it is guilty of the illegal “dual-tracking” where it is talking to you about loss mitigation but then it also forecloses.
So if you have already been foreclosed, you need to carefully check your records to see if you applied for loss mitigation and the timing of your loss mitigation request.
If RESPA has been violated in either the loss mitigation rule or the 120 day rule, this can be a great lawsuit that you can file against your mortgage company. You do this to get them to pay you money damages and to consider undoing the foreclosure. The foreclosure that never should have happened.
Call us at 205-879-2447 to help you figure out if any RESPA violations.
Was the foreclosure done improperly under Alabama law?
What we mean here is some defect in the foreclosure that will violate Alabama law.
Here are some examples we have sued over in the past:
- Foreclosure was held in the wrong county
- Foreclosure did not occur during legal hours
- The foreclosure sale did not actually occur at the front entrance to the courthouse
- The foreclosure deed is not properly completed
Let’s look at each of these and you see if any of these apply to your foreclosure.
Was your foreclosure held in the wrong county?
The foreclosure must be held in the county where your property is located. But we see foreclosure sales occurring in a neighboring county.
That is defective.
It is legally no good.
Check your mortgage to see where your property is located — the paragraph (normally 22) that gives the right to foreclose will tell the county where the foreclosure is to happen.
Then look to see where was the foreclosure advertised to happen.
Read the foreclosure deed to see where the sale actually occurred.
If there is any defect in this, you can use this to sue your mortgage company. The objective is to undo the sale and/or get money damages against your mortgage company.
Did the foreclosure occur during legal hours (11 am to 4 pm)?
The sale must occur during legal hours. Alabama law defines this as between 11 am and 4 pm.
What if it happens at 10:58 am?
No good.
What about at 4:01?
No good — it is a defective sale.
This law must be strictly complied with or the sale is no good.
We can help you figure out when the sale occurred.
Here’s an example. We had a case where the foreclosure supposedly occurred during legal hours. Let’s say it was at the first possible moment of 11 am.
Then the auctioneer had to sign the deed.
But the deed was notarized. So it must be signed in front of a notary.
But the notary swore it was signed in a location two counties over. The time to drive each way was 90 minutes.
So now we are at least at 12:30 pm.
But the foreclosure deed was filed in probate court as of 11:40 am.
Impossible.
So either it never happened (see next point) or it happened before legal hours. Either way, it is a bogus sale and invalid.
Did the auctioneer actually conduct the foreclosure sale or did he lie about doing it?
Remember our example from above — the sale occurred outside legal hours or it never happened.
We have had cases where the mortgage company and auctioneer just skipped doing the actual auction — the actual sale. No one was going to bid on the property. It was bad weather.
So why do it? This is the thought of the mortgage company. The same companies that did the bogus robo signing of affidavits.
The same companies that lie.
So why should it surprise us they will do this?
But without the actual sale, the foreclosure is invalid and you can sue.
Was the foreclosure deed properly completed?
The sale means that you sold the property to the high bidder.
Now you were not there actually doing the sale — the auctioneer has the power to do this on your behalf per your mortgage.
But no sale occurs until the deed is completed.
We had a case where the deed swears the sale happened on September 15. And the auctioneer signed it on September 15.
But the notary swears the signature of the auctioneer happened on September 17.
Someone is lying.
Either it was not signed on the 15th or it was not notarized on the 17th. You must witness a signature to notarize a foreclosure deed.
Another example is what we mentioned above about the deed being signed in one county and then notarized in a county 90 minutes away.
It just did not happen.
This gives you the right to sue.
What if you want to know about your rights to sue for a foreclosure that has already happened?
You have limited time to act so do not delay. Instead, take immediate action.
Call us at 205-879-2447 and ask for Randi. Tell the receptionist when the foreclosure date happened. And then she’ll transfer you to Randi.
Or you can contact us by filling out the form on our contact page.
We look forward to helping you to see what your options are about saving your home from a defective foreclosure.