In Alabama the foreclosure is a private matter without court intervention. Then if you don’t leave, you get sued. Its called an “Ejectment” suit because the mortgage company is trying to eject or evict you from your home.
Let’s look at this and see if this is smart or dumb for most mortgage companies to do and how getting sued (not normally a good thing!) for ejectment can actually be a blessing in disguise.
MORTGAGE COMPANY – YOU BETTER HAVE BEEN RIGHT WHEN YOU FORECLOSED
There are actions we can take in life that “magnify” or “multiply” the good or the bad of previous actions. Take foreclosure in Alabama. The mortgage company forecloses.
Let’s say it did not have the right to foreclose (a common occurrence in Alabama). This is bad enough, right? An improper and illegal foreclosure. This leads to damage to your credit report. Public ridicule as the false foreclosure is advertised to everyone in your county through 3 weeks of public newspaper articles.
But, if the foreclosure was wrong, and then the mortgage company has the audacity to sue you. The audacity to try and kick you and your family out on the street. The complete lack of shame and remorse for doing an illegal foreclosure.
Well, this makes a bad situation for the mortgage company much . . . much . . . worse. It amplifies or magnifies the damage to you. It exposes the mortgage company as being an arrogant . . . unrepentant . . . hypocrite as the mortgage company all the time screams in the media about consumers following the law and their obligations but this does not apply when the mortgage company wants to break the law and then sue to kick your family out on the street.
SO IS IT ALWAYS BAD FOR A MORTGAGE COMPANY TO SUE FOR EJECTMENT AFTER AN ILLEGAL FORECLOSURE?
Sound odd after what I just said above?
Well, let me explain. Most people who get an ejectment lawsuit . . . do . . . nothing. Except start to pack their bags and then leave. They give up on their home and they let the mortgage company win.
You see – when there has been an illegal foreclosure and then the mortgage company sues you (“adding insult to injury”) but you do nothing except give in . . . then the mortgage company does win. It does make money. It does profit from its evil conduct.
And since most people do this . . . it actually is good business for mortgage companies to act in this evil way.
Unless you actually stand up for your family, for your self respect, for your neighborhood . . . and say “I’m not going to take this from Bank of America or Wells Fargo or Deutsche Bank or whoever it is. I’m not going to let them get away with stealing my home. I’m not going to have my family life turned upside down. I’m not going to have my neighborhood start to fall apart with empty houses as a monument to the arrogance of these mortgage companies.”
YOU STAND UP BY TAKING ACTION AND FIGHTING BACK AGAINST ILLEGAL FORECLOSURES
First step. Find out if the mortgage company had the right to foreclose on your home. Here are some examples – but ultimately you will need to meet with a foreclosure litigation lawyer to know the answer to this question.
1. Were you really behind on your payments?
2. Did the mortgage company follow the terms of the note and mortgage in “accelerating” the amount due?
3. Were the advertisements and the mailed notices regarding the foreclosure sale date handled properly?
4. Was there any fraud or breach of contract as you discussed your situation with the mortgage company prior to the foreclosure?
5. Did the foreclosing company have the right – or the “standing” – to foreclose on you? Or did they not own or otherwise have the “capacity” to foreclose?
6. If your note was owned by a Wall Street Trust (as close to 80% of loans this past decade are) – or “supposedly” owned – was the note properly transferred to the Trust? Often it is not and that destroys the ability of the Trust or anyone acting on behalf of the Trust to foreclose on you.
Now, if everything was done properly in the foreclosure sale then you have nothing to do except to discuss with the mortgage company how and when you will move out.
If it looks like the foreclosure was improper – as so many Alabama consumers have faced – then you need to take the next step.
The next step is to fight back by counterclaiming against the mortgage company in the lawsuit it has filed against you. You will often want to add other defendants to your counterclaim – maybe the servicer – maybe the “asset preservation company” that tried to steal your property by breaking down your doors – maybe some other entities.
We can’t go over all of the possible counterclaim defendants but the point is . . . sue the responsible parties who acted so irresponsibly towards you.
Now you have a court looking at the actions of the mortgage companies. Judges who are not amused by fraud. Not amused by companies trying to steal homes without any basis to do so.
HAVE YOU REALLY TAKEN ACTION? HAVE YOU REALLY MADE A DECISION?
“A real decision is measured by the fact that you’ve taken new action. If there’s no action, you haven’t truly decided.” Anthony (Tony) Robbins.
This is the ultimate test. You can say “I’ve decided I’m going to stand up for my family. I’ve decided to not let these mortgage companies run over me.”
Have you really? The test is if you take action. If you do – wonderful! Congratulations! There are no guarantees you will be successful but since when do we test things by whether there is NO CHANCE of failure? Something about taxes and death are guaranteed. Nothing else.
But if you fight back, you give yourself and your family a chance to save your home. To save your dignity. To hold the bad guys responsible for how they have tried to run over you and steal your home.
OK I UNDERSTAND I NEED TO TAKE ACTION. BUT HOW CAN AN EJECTMENT LAWSUIT IN ALABAMA AGAINST ME BE A GOOD THING?
Part of what we do is figure out ways to turn a bad situation into a good one. Or to find the positive in a negative situation.
About 80 years ago one of the “fathers” of the “self help movement” named Napoleon Hill coined an expression that is very true – when you face adversity (and being illegally foreclosed on and then sued would qualify as “adversity”) . . . here’s what you should do – remind yourself that “within every adversity is the seed of an equal or greater benefit.”
Let’s be honest. Being sued is lousy. But if you have faced a wrongful foreclosure and you have been sued, there are advantages to being the defendant:
1. It means the mortgage company has to explain to the jury why it sued you after it had no right to foreclose.
2. You normally will stay in your home while the suit and countersuit are pending.
3. The plaintiff mortgage company has to bring its representative here for deposition instead of trying to make you go to its home office to take the deposition. This makes a big difference in the expense of taking the deposition. It also is a psychological factor to make some New York “suit” come down to Birmingham or where-ever your case is pending to raise his or her hand and testify.
4. The mortgage company normally cannot remove the case to federal court – it is stuck in state court which these mortgage companies like when suing to kick you out . . . but they hate it when they are being sued.
5. You have the moral high ground because not only was the foreclosure wrong, but then the mortgage company went to court to try and have a judge order you out of your house.
There are other advantages but the bottom line is from these difficult situations – foreclosure and being sued – there are times when you can turn this to your advantage to obtain justice from a mortgage company that has illegally foreclosed.
Being sued is a difficult situation but there are ways to take this tough break in life and turn it to your advantage. But the only way to do this . . . the only way to transform something bad into something good . . . is by taking smart and decisive action.
If you know all of your legal rights then this is wonderful. USE that knowledge and take action. You can be a law school professor or a judge and if you don’t take action, the knowledge is worthless.
If you don’t know all of your legal rights – start learning them. You can research all of this on your own or you can consult with a lawyer who does this type of work.
If you live in Alabama, feel free to contact us at 205-879-2447 or through our website. If you live out of state, contact a lawyer in your area – here is a good place to start.
I wish you the best of success in your difficult situation.
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
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