Fight Your Foreclosure Case

A New Jersey couple fought a bank foreclosure lawsuit and ended up keeping their home.  George and Mona Elghossain successfully defended against a mortgage loan servicer that tried to foreclose on their NJ home.  The April 4, 2011 court decision set a precedent for other homeowners in the state who can now cite this case as precedent for other foreclosure cases.

Mr. Elghossain, a real estate broker, used his industry knowledge to fight the case in court after he noticed that the servicer of the loan was not the lender that owned his loan.

According to New Jersey state law, the homeowner is supposed to be notified of various items, including the name of the lender that owns the loan and its contact information.

In its paperwork, the loan servicer, Bank of America, failed to include the names of the lender and the lender's representative in its notice of intent to foreclose, therefore violating New Jersey's Fair Foreclosure Act, which was enacted in 1995 and has been updated several times.

"The Fair Foreclosure Act is clear, unambiguous, and readily comprehensibly (especially to a sophisticated lender)," according to the opinion written by Judge Glenn Berman of Middlesex County.

Bank of America wanted the judge to expand the meaning of who is a lender so that it would include any "mortgage lender, mortgage investor or mortgage loan servicer that owns ... or is authorized to negotiate the terms of the homeowner's mortgage." Berman said the bank's argument "is misplaced."

The Elghossain’s purchased the home in 1985 and refinanced in 2004 with a local bank named New Millenium Bank for $260,000 at a 6.25 percent interest rate for 30 years.  About a month after the refinancing, New Millenium sold the loan to Countrywide Document Custody Services, which shortly transferred it to Countrywide Home Loans, Inc.  Countrywide sold it to the Bank of New York, but maintained a servicing agreement, which was recorded on December 7, 2006.  When Countrywide was purchased by Bank of America, they became the servicer, but Bank of New York remained the holder of the mortgage.

Bank of New York was one of 24 lenders to file 200 or more foreclosure actions in New Jersey in 2010, reported the New Jersey Law Journal.

"Homeowners in New Jersey don't contest their foreclosures, and they should," said Mr. Elghossain. "With all the forgery and fraud, people should contest their foreclosures. That's my advice. If they can't do it themselves, they should consult an attorney to make sure the lenders have complied with the rules."
 
"Before Bank of America filed its lawsuit, I wrote them a certified letter saying I'd like to start making my payments again. Instead of taking that with open arms, they never responded and they filed for foreclosure."

Although the family is holding on to the property, Bank of America does have the right to come back and serve the Elghossain’s with a proper notice of intent to foreclose.

For others facing similarly situations, Elghossain repeats, "Fight your foreclosures.”

The point being- do not allow lender’s to foreclose on your home without a legal fight.