Banking & Creditors’ Rights
Commercial and Residential Foreclosures
Highlight of services offered:
- Judicial and Non-judicial foreclosures
- Compliance with Fannie Mae, Freddie Mac, HUD and VA standards
- Stringent document retention and document verification procedures
- Timely escalation of non-routine matters
- Compliance with Servicemembers Civil Relief Act
- Timeline management and robust reporting
- Expedited transition to loss mitigation solutions if warranted
Holder of Note May Enforce Deed of Trust
Definition of negotiable instrument includes promissory note. Promissory note and deed of trust securing it may be separate documents, but deed of trust can never transfer without promissory note. Transfer of note is inferred in transfer of deed of trust. Holder of note may enforce note, and deed of trust securing it, even if holder is not owner of either note or deed. Chain of succession’s integrity remained genuinely in dispute, so summary judgment for either party must be denied and all related claims are remanded to circuit court.
Federal National Mortgage Association and Nationstar Mortgage, LLC vs. Jeffrey A. Conover, et al
Missouri Court of Appeals, Western District – WD76276 and WD76347
Beware of the second mortgage on residential loans. Example: The first mortgage has a balance of $300,000. The second mortgage has a balance of $75,000. Let’s assume that the value of your house is now only $235,000. Since the value of the house is less than the balance of the first mortgage, there is no equity in the house securing or holding the second mortgage. A lawsuit within the Bankruptcy Court will be filed to declare the second mortgage unsecured. If successful, a person filing bankruptcy can exit a completed Chapter 13 without the second mortgage attached to their home. Depending on the payout of the Chapter 13, that entire mortgage could be discharged and if so, the second mortgage will no longer be attached to the property and there will be NO FORECLOSURE.
Leases: it is settled law that a lease is automatically extinguished by foreclosure unless it predates the lien of the foreclosed deed of trust. City Bank and Trust Co. of Moberly v. Thomas, 735 S.W.2d 121, 122 (Mo. App. E.D. 1987).
Commercial and Residential Evictions
We strive to provide the most effective services in all aspects of the eviction procedure. We know the ins and outs of removing occupants from a home.
Highlight of services offered:
- Compliance with Protecting Tenants at Foreclosure Act (PTFA)
- Notice terminating period tenancy
- Forcible Entry and Forcible Detainer Complaint
- Rent and Possession Complaint
- Hearing attendance
- Schedule lockout and boarding/securing of property
WHEN IS ABANDONED PERSONAL PROPERTY REALLY ABANDONED?
Mo. Rev. Stat. section 441.065 states: Any property of a tenant remaining in or at the premises, after the tenant abandons the premises, may be removed or disposed of by the landlord without liability to the tenant for such removal or disposition. The premises shall be deemed abandoned if:
(1) The landlord has a reasonable belief that the tenant has vacated the premises and intends not to return; (2) The rent is due and has been unpaid for thirty days; and (3) The landlord posts written notice on the premises and mails to the last known address of the tenant by both first class mail and certified mail, return receipt requested, a notice of the landlord’s belief of abandonment. The notice shall include the following, where appropriate:
“The rent on this property has been due and unpaid for thirty consecutive days and the landlord believes that you have moved out and abandoned the property. The landlord may declare this property abandoned and remove your possessions from this unit and dispose of them unless you write to the landlord stating that you have not abandoned this unit within ten days of the landlord having both posted this notice on your door and mailing this notice to you. You should mail your statement by regular first class mail and, if you so choose, by certified mail, return receipt requested, to this address . . . . . . . . . . . (here insert landlord’s name and street address)”; and
(4) The tenant fails to either pay rent or respond in writing to the landlord’s notice within ten days after both the date of the posting and deposit of such notice by either first class mail or certified mail, return receipt requested, stating the tenant’s intention not to abandon the premises
If a personal property notice is required, is there specific verbiage required within the notice and/or specific instructions for delivery or service?
Yes. As stated above, the notice should include the following where appropriate: “The rent on this property has been due and unpaid for thirty consecutive days and the landlord believes that you have moved out and abandoned the property. The landlord may declare this property abandoned and remove your possessions from this unit and dispose of them unless you write to the landlord stating that you have not abandoned this unit within ten days of the landlord having both posted this notice on your door and mailing this notice to you. You should mail your statement by regular first class mail and, if you so choose, by certified mail, return receipt requested, to this address . . . . . . . . . . . (here insert landlord’s name and street address)”;
The notice can be revised to state: “The above Premises has been foreclosed for failure to make payments under the terms of the Note and Deed of Trust. [Insert purchaser/owner’s name], purchaser of the Premises at the foreclosure sale (“Purchaser”), believes that you have moved out and abandoned the Premises, leaving behind various items of personal property. The Purchaser may declare this personal property abandoned and remove and dispose of this personal property unless you write to the Purchaser, within ten (10) days of the Purchaser having both posted this letter on your door and mailing this letter to you, stating that you have not abandoned this personal property.
Additionally, the notice should be sent via certified mail, regular mail, and posting as mentioned above in the statute, section 3.
Common practices for the disposition of abandoned personal property
Occupancy checks should be performed to verify personal property is left behind. We recommend creating a list of items remaining in the property and taking photos to further document items in the property. This should be done prior to trashing out the property but after the notice has expired. The personal property should be well documented in some fashion to avoid any future claims. Additionally, however the items are disposed of or stored should be documented.
To avoid any claims for conversion, it is imperative to comply with the notice statute and provide proper notice. Also, documenting the personal property is important should any litigation occur. It is important to not dispose of the property prior to providing notice. It is important to note the saying that “one man’s trash is another man’s treasure.” This means that what you consider trash, might very well be the occupant’s personal property. This is why complying with the notice and documenting the personal property is very important.
Notice after a foreclosure: A foreclosed borrower is not a tenant of her own property and thus was not entitled to notice to vacate after the foreclosure. Federal National Mortgage Association v. Wilson, Case No. 65267, Court of Appeals, Eastern District of Missouri, (2013).
Fair Market Rental Value: Where a renter who failed to vacate the property for the new buyer challenged the damages award, the trial court should have pro-rated the damages for the portion of the months the renter was present. Colt Investments v. Boyd, Case No 99280 Court of Appeals, Eastern District of Missouri, (2013).
Commercial and Consumer Collections
We have extensive experience in consumer and commercial debt collections. In the consumer setting this allows us to quickly and efficiently process collection referrals with practical solution-based remedies to meet client needs all within the laws of the Fair Debt Collection Practices Act.
The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors. Importantly, the question of whether the consumer actually owes the alleged debt has no bearing on FDCPA claims. The FDCPA is a strict liability statute; proof of one violation is sufficient to support judgment for the consumer. Statements contained in pleadings and other court filings are actionable under the FDCPA. Actions of a debt collector are evaluated through the lens of an “unsophisticated consumer,” meaning consumers of “below average sophistication or intelligence.”