Tuesday, October 18, 2011

Faulty Foreclosures Can Strip Property Rights From New Owners

The Massachusetts Supreme Judicial Court ruled today that if an original foreclosure was faulty, people who buy foreclosed property might not own what they think they do.

The case, Bevilacqua vs. Rodriguez, involved a Haverhill property which had been owned by Pablo Rodriguez, who took a mortgage on it in 2005 through a lender named Finance America. The mortgage was assigned to the Mortgage Electronic Registration System (MERS), and the note was subsequently sold into a securitized trust.

In 2006, U.S. Bank, acting as trustee, foreclosed on the property. But the mortgage, which had been entered into the land records as assigned to MERS had never been transferred over to U.S. Bank. This transfer occurred only after the foreclosure sale had already been completed.

Last year, the SJC ruled in its influential Ibanez decision that such post-foreclosure transfers were illegal - banks must be assigned the mortgage prior to foreclosure in order to foreclose.

In 2006, U.S. Bank sold the property to Francis J. Bevilacqua, granting him a "quitclaim deed" affirming U.S. Bank no longer had an interest in the property. But, given the court's Ibanez ruling, in 2010 Bevilacqua elected to file a "try title" action in order to clear up any potential problems with the title.

A "try title" action is a legal method of clearing disputes over who owns a piece of property by forcing the parties with a claim on the land to appear in court and present evidence. If a party with such a claim fails to appear and defend it, or loses the case on the evidence, their claim is wiped out, making it easier for the current owner to sell.

Judge Keith Long of the Land Court, however, ruled that Bevilacqua didn't have the right to attempt to "try title." Since U.S. Bank's original foreclosure was illegal, they didn't have the right to sell the property to Bevilacqua in the first place, and he was not its legal owner.

The SJC today affirmed that decision, saying that the fact that U.S. Bank had granted a deed to Bevilacqua wasn't enough to establish his ownership.

"Recording may be necessary to place the world on notice of certain transactions. Recording is not sufficient in and of itself, however, to render an invalid document legally significant," said the court. "In light of its defective title, the intention of U.S. Bank to transfer the property to Bevilacqua is irrelevant and he cannot have become the owner of the property pursuant to the quitclaim deed."

The court does state that it might be possible for property owners in Bevilacqua's position to establish ownership by, in effect, re-foreclosing on the property.

Bevilacqua might argue that the record shows that U.S. Bank intended to transfer its interest in the property to him, and that therefore he is entitled to foreclose on the property under the terms of the original mortgage, just as U.S. Bank would have been.

However, the court says that a try title action isn't the proper legal proceeding in which to attempt such a maneuver. But they explictly leave the door open for Bevilacqua to make another attempt to establish his ownership.

By Coleen Sullivan

Tuesday, October 4, 2011

North Shore Massachusetts Flood

Dealing with the Aftermath


If you have experienced a flood, you can file your flood insurance claim by following these three steps:

STEP ONE:

After experiencing a flood, contact your agent or insurance company to file a claim. An adjuster should contact you within a few days of filing your claim. If you do not hear from an adjuster, you can contact your insurance agent or company again. Make sure you have the following information handy:

•The name of your insurance company

•Your policy number

•A telephone and/or email address where you can be reached at all times

STEP TWO:

Separate damaged from undamaged property. Your adjuster will need evidence of the damage to your home and possessions to prepare your repair estimate.

•Take photographs of all of the damaged property, including discarded objects, structural damage, and standing floodwater levels.

•Make a list of damaged or lost items and include their date of purchase, value, and receipts, if possible.
•Officials may require disposal of damaged items so, if possible, place flooded items outside of the home.

STEP THREE:

Your adjuster will provide you a Proof of Loss form for your official claim for damages. You'll need to file this claim with your insurance company within 60 days of the flood. This document substantiates the insurance claim and is required before the National Flood Insurance Program (NFIP) or insurance company can make payment.

You'll receive your claim payment after you and the insurer agree on the amount of damages and the insurer has your complete, accurate, and signed Proof of Loss form. If major catastrophic flooding occurs, it may take longer to process claims and make payments because of the sheer number of claims submitted.

Disaster Assistance: (800) 621-FEMA, TTY (800) 462-7585


http://www.floodsmart.gov/floodsmart/

Thursday, September 29, 2011

August Bay State Foreclosure Deeds Reach Highest Level In 2011

Over the past year, foreclosures have fluctated, reaching new highs and lows. What's next for Massachusetts? Banker & Tradesman Managing Editor Cory S. Hopkins gives his take in this podcast. More than 900 foreclosures were completed in Massachusetts in August - the highest monthly level recorded so far this year, according to The Warren Group, publisher of Banker & Tradesman.


A total of 937 foreclosure deeds were recorded in August, marking the largest amount in any month in 2011. June recorded the second highest amount at 931. Year-over-year foreclosure deeds dropped more than 22 percent from 1,207 in August 2010. A total of 5,465 foreclosure deeds have been filed so far this year, a near 45 percent decrease compared to 9,887 deeds recorded during the same period last year.

"We're seeing completed foreclosures hover around the 1,000 mark - a sign that lenders are beginning to work through the backlog and finalize the foreclosure process," said Banker & Tradesman Managing Editor Cory S. Hopkins. "Foreclosures have been delayed by robo-signing and other documentation problems. This could certainly mean a glut of foreclosed homes will be pushed through the pipeline in coming months and years."

Year-over-year petitions were down in August, dropping to 1,397 - a near 53 percent decline from 2,961 in August 2010. This is the second consecutive month petitions have exceeded 1,000 - and the fourth month so far this year. A total of 8,253 foreclosure petitions have been initiated so far this year, down 56 percent from 18,606 petitions filed the same period last year.

The number of auction announcements tracked by The Warren Group also decreased in August. Auction announcements declined 36 percent to 1,266 from 1,988 in August 2010. From January through August, 11,373 auctions have been announced, a 44 percent decline from 20,456 auctions during the same period in 2010.

Saturday, September 17, 2011

US Foreclosure risk on rise, analysts say

Top News

Wednesday, 24 August 2011 05:52

The Mortgage Bankers Association said yesterday that 8.4 percent of homeowners missed at least one mortgage payment in the April-June quarter.

That figure rose 0.12 percentage point from the January-March period.

In a normal market, the percentage of delinquent borrowers is about 1.1 percent, according to the trade group.

Delinquent mortgages have plummeted from a record high of more than 10 percent of residential mortgages a year ago.

But the decline is due partly to delays in foreclosure filings that are backlogged in state courts, including in Florida, New Jersey, Illinois, and New York.

The end of a state and federal investigation into faulty foreclosure paperwork will probably lead to more foreclosures later this year.

Analysts say the increase is especially worrisome because it is due mainly to high unemployment, which tends to raise the number of missed payments and foreclosures over time.

Once delayed foreclosures are restarted, the economy could suffer a hit.

“The current processing delays mean this will not happen quickly, underlining our view that both the housing market and the economy will remain weak for a few years,’’ said Paul Dales, senior US economist at Capital Economics.

Monday, September 5, 2011

Last Week in the News



Pending home sales, a forward-looking indicator based on signed contracts, fell 1.3% in July after a 2.4% increase in June. On a year-over-year basis, pending sales are up 14.4%.

The Standard & Poor's/Case-Shiller 20-city housing price index — on a non-seasonally adjusted basis — rose 1.1% in June after a 1% increase in May. On a year-over-year basis, prices fell 4.5% compared with June 2010.

The consumer confidence index fell to 44.5 in August from 59.5 in July. The index was benchmarked at 100 in 1985, a year chosen because it was neither a peak nor a trough in consumer confidence.

The Mortgage Bankers Association said its seasonally adjusted composite index of mortgage applications for the week ending August 26 fell 9.6%. Refinancing applications decreased 12.2%. Purchase volume rose 0.9%.

Factory orders rose 2.4% in July to a seasonally adjusted $453.2 billion, following a revised 0.4% decrease in June. Excluding the volatile transportation sector, orders rose 0.9% in July.

The Institute for Supply Management reported that the monthly composite index of manufacturing activity fell to 50.6 in August after a reading of 50.9 in July. A reading above 50 signals expansion. It was the 25th straight month of expansion.

Total construction spending fell 1.3% to $789.5 billion in July, following an upwardly revised 1.6% gain in June. Economists had anticipated an increase of 0.1% in July.

Initial claims for unemployment benefits fell by 12,000 to 409,000 for the week ending August 27. Continuing claims for the week ending August 20 fell by 18,000 to 3.7 million. The monthly unemployment rate remained unchanged at 9.1% in August.

Upcoming on the economic calendar are reports on international trade on September 8 and wholesale trade on September 9.

Mario Grosser
Prospect Mortgage

Thursday, September 1, 2011

New Oil Heating System Upgrade, Insurance Law and Asbestos Removal

8/26/2011


Homeowner Oil Heating System Upgrade and Insurance Law

Introduction

This fact sheet contains important information for those who heat their homes with oil. By September 30, 2011, you must upgrade your home heating system equipment to prevent leaks from tanks and pipes that connect to your furnace. By making a relatively small expenditure now, you can prevent a much greater expense in the future.

Massachusetts has a new law to address oil leaks from home heating systems (Chapter 453 of the Acts of 2008, as most recently amended in 2010). This law has two major provisions that require:


•the installation of either an oil safety valve or an oil supply line with protective sleeve on systems that do not currently have these devices; and

•insurance companies that write homeowner policies to offer coverage for leaks from heating systems that use oil.

Most homeowner policies do not currently include such coverage, leaving many to pay for costly cleanups out of their own pocket. Although it is mandatory that insurance companies make this coverage available by July 1, 2010 to homeowners whose systems are upgraded, the insurance is an optional purchase.

Who must take action?

Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve, as shown in the diagram above. Installation of these devices must be performed by a licensed oil burner technician. Technicians are employed by companies that deliver home heating oil or are self-employed. It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time.

Who is exempt?

Homeowners are exempt from taking these leak prevention steps if:

•the oil burner is located above the oil storage tank and the entire oil supply line is connected to and above the top of the tank OR

•an oil safety valve or oil supply line with protective sleeve was installed on or after January 1, 1990, AND
•those changes are in compliance with the oil burning equipment regulations; a copy of the oil burner permit from the local fire department may be used to demonstrate compliance.

Why comply?

Not only is complying with the new law required, it makes good financial and environmental sense. Homeowners who take these preventive measures can avoid the disruption and expense that can be caused by heating oil leaks. A leak may result in exposure to petroleum vapors in your home. If the leak reaches the soil or groundwater beneath your house, then a cleanup must be performed to restore your property to state environmental standards. Leaks that affect another property or impact drinking water supply wells can complicate the cleanup and increase the expense. Each year, several hundred Massachusetts families experience some kind of leak.

What will an upgrade cost?

The typical cost of installing either an oil safety valve or oil supply line with a protective sleeve ranges from $150 - $350 (including labor, parts, and local permit fees).

What could it cost to cleanup a leak?

The cleanup cost for a "simple" leak can be as much as $15,000. In cases where the leak impacts the groundwater or is more extensive, the cleanup costs can reach $250,000 or more.

What kind of insurance is available?

To be eligible for the new insurance coverage, homeowners must ensure that their oil heating systems are in compliance with the new law. Homeowners who have been certified to be in compliance with (or exempt from) the leak prevention measures qualify to purchase insurance that:

•provides "first party coverage" of at least $50,000 for the cost of cleaning up a leak to soil, indoor air, or other environmental media from a home heating system at the residence itself and reimbursement for personal property damage, AND

•provides "third party coverage" of at least $200,000 for the cost of dealing with conditions on and off the insured's property because the leak from this system has or is likely to impact groundwater or someone else's property. The coverage also includes costs incurred for legal defense, subject to a deductible not to exceed $1,000 per claim.

What should I do next?

•Determine whether you have had an oil safety valve or new oil supply line with protective sleeve installed since January 1, 1990. If you have, your permit from the fire department for the installation can be used to document your compliance. You can request a copy from the fire department if the permit is on file, or a licensed oil burner technician can certify that status on a form.

•If you do not have an oil safety valve or oil supply line with protective sleeve in place, have one or the other installed and certified. Either contact your oil delivery company to ask if they employ a licensed oil burner technician or find a service person in your area. (A list of licensed technicians can be viewed at http://db.state.ma.us/dps/licenseelist.asp. Click on the "individuals" tab, scroll down to and then select "Oil Burner - Technical Certificate" in the "select a license type" box, type in your city or zip code, and click "select").
•Consider buying insurance coverage for the cleanup of a leak.

◦Determine whether your existing policy provides oil leak coverage.

◦If it does not, consider calling your homeowner insurance agent to amend the policy to include this coverage.

Department of Fire Services Forms

MA Department of Fire Services Forms for use by Licensed Oil Burner Technicians to document compliance of oil heating system upgrades may be found at:

OSFM Forms Web site


Asbestos

Q. I have a listing that has pipes in the basement that appear to be insulated in asbestos. The seller said he heard that his house would sell faster if it were removed, so he said he was “going to take care of it.” I’m afraid he’s going to try to remove it himself. What can I do to protect him, as well as myself?

A. Explain to your client that the worst thing he can do is try to remove it himself. Removal may very well be unnecessary and it is definitely dangerous to his family'S health, as well as his own. In fact, the state’s DEP explicitly states that if asbestos is in good condition, no state or federal law requires its removal.

There are a lot of jobs around your home where being a do-it-yourselfer can be fun and safe. Asbestos removal is most certainly not one of them. Asbestos is a potentially fatal disease that is caused by the inhalation of asbestos fibers. Disturbance of asbestos insulation by attempting its removal can cause the release of these fibers into the air in the home. You should provide your client with information about asbestos to help him understand why following your advice on this issue is essential. DEP’s information and FAQ sheet is located at the following web address: www.mass. gov/dep/air/asbguid.htm.

Massachusetts Department of Environmental Protection

























Friday, August 26, 2011

Hurricane Safety Checklist

Be Red Cross Ready


Hurricanes are strong storms that cause life- and property- threatening hazards such as flooding, storm surge, high winds and tornadoes.
Preparation is the best protection against the dangers of a hurricane.

Know the Difference

Hurricane Watch—Hurricane conditions are a threat within 48 hours. Review your hurricane plans, keep informed and be ready to act if a warning is issued.

Hurricane Warning—Hurricane conditions are expected within 36 hours. Complete your storm preparations and leave the area if directed to do so by authorities.


What should I do? What supplies do I need? What do I do after a hurricane?

❏ Listen to a NOAA Weather Radio for critical information from the National Weather Service (NWS).

❏ Check your disaster supplies and replace or restock as needed.

❏ Bring in anything that can be picked up by the wind (bicycles, lawn furniture).

❏ Close windows, doors and hurricane shutters. If you do not have hurricane shutters, close and board up all windows and doors with plywood.

❏ Turn the refrigerator and freezer to the coldest setting and keep them closed as much as possible so that food will last longer if the power goes out.

❏ Turn off propane tanks and unplug small appliances.

❏ Fill your car’s gas tank.

❏ Talk with members of your household and create an evacuation plan. Planning and practicing your evacuation plan minimizes confusion and fear during the event.

❏ Learn about your community’s hurricane response plan. Plan routes to local shelters, register family members with special medical needs as required and make plans for your pets to be cared for.

❏ Evacuate if advised by authorities. Be careful to avoid flooded roads and washed out bridges.

❏ Because standard homeowners insurance doesn’t cover flooding, it’s important to have protection from the floods associated with hurricanes, tropical storms, heavy rains and other conditions that impact the U.S. For more information on flood insurance, please visit the National Flood Insurance Program Web site at www.FloodSmart.gov.



❏ Water—at least a 3-day supply; one gallon per person per day

❏ Food—at least a 3-day supply of

non-perishable, easy-to-prepare food

❏ Flashlight

❏ Battery-powered or hand-crank radio

(NOAA Weather Radio, if possible)

❏ Extra batteries

❏ First aid kit

❏ Medications (7-day supply) and medical items (hearing aids with extra batteries, glasses, contact lenses, syringes, cane)

❏ Multi-purpose tool

❏ Sanitation and personal hygiene items

❏ Copies of personal documents (medication list and pertinent medical information, proof of address, deed/lease to home, passports, birth certificates, insurance policies)

❏ Cell phone with chargers

❏ Family and emergency contact information

❏ Extra cash

❏ Emergency blanket

❏ Map(s) of the area

❏ Baby supplies (bottles, formula, baby food, diapers)

❏ Pet supplies (collar, leash, ID, food, carrier, bowl)

❏ Tools/supplies for securing your home

❏ Extra set of car keys and house keys

❏ Extra clothing, hat and sturdy shoes

❏ Rain gear

❏ Insect repellent and sunscreen

❏ Camera for photos of damage



❏ Continue listening to a NOAA Weather Radio or the local news for the latest updates.

❏ Stay alert for extended rainfall and subsequent flooding even after the hurricane or tropical storm has ended.

❏ If you evacuated, return home only when officials say it is safe.

❏ Drive only if necessary and avoid flooded roads and washed-out bridges.

❏ Keep away from loose or dangling power lines and report them immediately to the power company.

❏ Stay out of any building that has water around it.

❏ Inspect your home for damage. Take pictures of damage, both of the building and its contents, for insurance

purposes.

❏ Use flashlights in the dark. Do NOT

use candles.

❏ Avoid drinking or preparing food with tap water until you are sure it’s not contaminated.

❏ Check refrigerated food for spoilage. If in doubt, throw it out.

❏ Wear protective clothing and be cautious when cleaning up to avoid injury.

❏ Watch animals closely and keep them under your direct control.

❏ Use the telephone only for emergency calls.





Let Your Family Know You’re Safe

If your community has experienced a hurricane, or any disaster, register on the American Red Cross Safe and Well Web site available through RedCross.org/SafeandWell to let your family and friends know about your welfare. If you don’t have Internet access, call

1-866-GET-INFO to register yourself and your family.







How to sell your home