About CASE Files
The USFN CASE Files virtual four-part series continues with Series 2: Administrative/Procedural Issues. Releasing weekly in October, Series 2 features four modules offering real-world applications and practical examples you can implement right now. Each pre-recorded 30-minute session is led by experienced USFN members providing a range of different, but balanced perspectives on the series topics.
Once released, each module can be viewed anytime on-demand and asynchronously. Find detailed information about each module below. Register today to access all four modules in the Administrative/Procedural Issues series and watch each session at your convenience.
Once released, each module can be viewed anytime on-demand and asynchronously. Find detailed information about each module below. Register today to access all four modules in the Administrative/Procedural Issues series and watch each session at your convenience.
SERIES 2 MODULE FEATURES
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Module 1: GSE Timelines – Nouveau “Statutes” of Limitation
Release Date
Week of October 2
Speakers
Sally Garrison, The Mortgage Law Firm
Jim Timberlake, Baer & Timberlake, P.C.
Week of October 2
Speakers
Sally Garrison, The Mortgage Law Firm
Jim Timberlake, Baer & Timberlake, P.C.
Session Description
Your organization knows the specific statutory limitations as to when a foreclosure action must be filed, served, and processed in your respective jurisdictions. However, those are not the only deadlines to which you must be mindful in order to facilitate the ‘perfect foreclosure.’ Most GSEs have implemented their own timelines and/or processes covering anything from when to file an action to how to complete a foreclosure; and, if not met, violating these non-statutory limitations could create significant financial losses.
Your organization knows the specific statutory limitations as to when a foreclosure action must be filed, served, and processed in your respective jurisdictions. However, those are not the only deadlines to which you must be mindful in order to facilitate the ‘perfect foreclosure.’ Most GSEs have implemented their own timelines and/or processes covering anything from when to file an action to how to complete a foreclosure; and, if not met, violating these non-statutory limitations could create significant financial losses.
SESSION OUTLINE
- First-Legal Deadlines
- State specific definitions
- Judicial vs. Nonjudicial Foreclosure (Quasi-judicial Foreclosure)
- Did the referral give the Firm enough time to meet Deadline?
- Requesting Extensions
- Servicer delay vs. Firm delay
- Escalating requests
- State specific definitions
- Timely Conveying Marketable Title
- State-specific issues?
- Clearing Title issues: front-end vs. back-end
- Requesting extensions
- Investor Timeline Requirements:
- FHA/HUD First Legal Filing Deadlines calculated from Last Paid Installment
- Federal Register Doc. 2015-30592
- Missed Deadline:
- Accrued interest (plus a penalty) may be demanded
- Rebuttals from Firm?
- VA Conveyance Requirements
- Must complete recordation of deed and marketable title within deadline
- Reconveyance fees, plus interest, from date of default through conveyance
- Federal Register Doc. 2015-30592
- Fannie Mae and Freddie Mac Expected Performance Completion Deadlines
- FHA/HUD First Legal Filing Deadlines calculated from Last Paid Installment
- Never be nouveau - “SOL”:
- Building timelines into your processes
- Defining referral deadlines with between servicer and Firm
SPEAKER PROFILES
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Sally Garrison Managing Member The Mortgage Law Firm Sally E. Garrison received a B.A. in Economics, Environmental Science, and Political Science, from Claremont McKenna College in 1995. She received her J.D. from the University of Oklahoma, College of Law, in 2000. During her studies at the University of Oklahoma, she also attended the Oxford Summer Program at Queen’s College, focusing on the European Union and Intellectual Property. Before beginning her work in real estate litigation, Garrison taught as an adjunct professor at the University of Oklahoma, (OU) College of Law, in the areas of Intellectual Property, Copyright, Contracts, and Law in Cyberspace. She assisted in the research and editing of Copyright in a Global Information Economy, ISBN 0-7355-2430-0; Toward an International Fair Use Doctrine, Columbia Journal of Transnational Law, 2000, Volume 39, No. 1; and Givers, Takers and Other Kinds of Users: A Fair Use Doctrine for Cyberspace, Florida Law Review, January 2001, Volume 53, No. 1. From 2001 to 2008, Garrison worked as in-house counsel for OU, representing various departments and organizations including Student Affairs, OU Police Department, Sam Nobel Museum, Alumni Affairs, Development, Housing and Food Services, and the University Outreach, among numerous others. She is currently the managing member of The Mortgage Law Firm, PLLC, in Oklahoma, and is licensed in Oklahoma, Texas, Arizona, and Hawaii. Her work includes motion practice, non-jury and jury trial work, and appellate practice. She is also the Firm’s Client Relations and Marketing Liaison, working closely with clients to ensure excellent service and communication. In addition to firm work, she has consulted with local law firms to provide system efficiency and managerial advice. She is a graduate of the Stagen Leadership Academy Integral Leadership Program and was awarded Black Belt recognition for her work in communication, influence, and motivation. She was a finalist for the Women in Housing 2019 Keystone Award for Cultural Leadership. She won the USFN’s Member of the Year Award in 2020, along with being named one of OKC’s Top Attorneys by 405 Magazine in the area of real estate in 2020 and 2021. Garrison currently serves on the Board of Directors for the USFN. |
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Jim Timberlake CEO Baer & Timberlake, P.C. Donald James (Jim) Timberlake Jr., Jim, has been a member of the Oklahoma Bar Association since 1993 and is the CEO of Baer & Timberlake, P.C., a creditor’s rights firm specializing in the representation of the mortgage servicing industry. Throughout his career, Timberlake's practice has been focused on the representation of the mortgage industry in all aspects of default servicing. He regularly speaks at various trade organization meetings, CLE sessions, and seminars throughout the country on topics relevant to mortgage default servicing. |
Module 2: Sign On The Dotted Line - Document Execution
Release Date
Week of October 9
Speakers
Lisa Lee, KML Law Group, P.C.
Richard Nielson, Reimer Law Co.
Session Description
Signing a document may seem like a simple process however document execution continues to be one of the biggest areas for delay and risk. This session will review how to ensure the staff preparing and executing documents are trained on key elements of the process, understand the potential pitfalls of veering from procedure, and the organizational guardrails needed to reduce the risk of your documents being challenged in court.
Week of October 9
Speakers
Lisa Lee, KML Law Group, P.C.
Richard Nielson, Reimer Law Co.
Session Description
Signing a document may seem like a simple process however document execution continues to be one of the biggest areas for delay and risk. This session will review how to ensure the staff preparing and executing documents are trained on key elements of the process, understand the potential pitfalls of veering from procedure, and the organizational guardrails needed to reduce the risk of your documents being challenged in court.
SESSION OUTLINE
- Explanation of document execution
- Importance of following best practices
- Written procedures
- Understanding what goes into the Business Records Exception for Affidavits
- Purpose of affidavit in a case file
- What is the Business Records Exception
- Importance of following best practices
- Document Templates – Pros and Cons
- Client provided templates – P - consistency for servicer Doc Ex Staff; C – managing the maintenance and update process.
- Firm provided templates – P – Streamlined for Firms; C- service staff must understand different templates.
- Preparing for Execution
- Reviewing the document
- Reviewing business records
- Identifying signatories and witnesses
- Confirming the validity of signatures and witnesses
- Reject or Correct
- When is it ok to make a revision?
- Consistency in communicating need for revision and understanding compliance with applicable law.
- When should a document be rejected back to the attorney?
- Executing the Document
- Choosing the appropriate signature method
- Signing with power of attorney
- Signing in the correct location
- Avoiding alterations or corrections to the document
- Executing the document before a Notary
- Witnessing/Notarizing the Document
- Identifying the appropriate witnesses
- Ensuring witnesses understand their role
- Confirming witnesses/notary is present during signing
- Post-Execution
- Keeping the original document in a safe location
- Do you need the original?
- Document retention rules
- Distributing copies of the executed document to relevant parties
- Image, original, or both back to Attorney
- Updating records and databases to reflect the executed document
- Keeping the original document in a safe location
- Training
- Written Procedures
- Business Records Exception and the potential to testify
- Conclusion
- Recap of best practices for document execution
- Importance of adherence to best practices for legal validity
SPEAKER PROFILES
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Lisa Lee Shareholder KML Law Group, P.C. Lisa Lee is a shareholder with KML Law Group, P.C., and is the firm’s CMO and Compliance Counsel. Lee attended Villanova University and Villanova University School of Law and has been practicing in the creditor’s rights field since 1996. Prior to attending law school, Lee was employed by Dominion Bancshares Mortgage Corp. (which became First Union Mortgage Corp. during her employment) first as a Foreclosure and Bankruptcy Processor, then as Foreclosure Workflow Coordinator. Lee is licensed in Pennsylvania and New Jersey, and she is a frequent speaker at industry events and a contributor to industry publications. She also does pro bono work for Habitat for Humanity Philadelphia and serves as the President of the Board of Directors of the USFN. |
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Richard Nielson Managing Shareholder - KY & WV Reimer Law Co. Richard M. Nielson is a shareholder in Reimer Law Co. where he manages compliance, IT and Kentucky operations for the firm. He has over 30 years of legal experience in the fields of real estate law, bankruptcy, and creditors' rights. Nielson is licensed to practice law in Kentucky, Ohio, West Virginia, and Tennessee and has achieved the highest rating of “AV Preeminent” from Martindale Hubble peer reviews. Nielson is a resident of Louisville, Kentucky with his wife and three children. He is a current USFN Board member, is a member of the USFN Finance and Membership Committees, and is a frequent lecturer on mortgage banking, manufactured home, real estate title, foreclosure, technology, firm operations, and compliance topics. |
Module 3: Till Death Do Us Part – The Probate Process
Release Date
Week of October 16
Speakers
Alexandria Kaminski, Gross Polowy, LLC
John Kay, Hutchens Law Firm
Session Description
Probate is the formal, court-supervised process where a deceased person’s wishes are carried out through their Last Will and Testament and the assets of the deceased are distributed to his or her rightful heirs. When a borrower passes away, it is a difficult time for the borrower’s family and the correct steps must be taken to protect the status of the mortgage loan while keeping in mind the difficulties the family is facing. This session will discuss the effects of the probate process on mortgage loan servicing and the necessary steps a servicer must take to avoid jeopardizing the mortgage priority status and how to properly deal with the borrower’s successors in interest.
Week of October 16
Speakers
Alexandria Kaminski, Gross Polowy, LLC
John Kay, Hutchens Law Firm
Session Description
Probate is the formal, court-supervised process where a deceased person’s wishes are carried out through their Last Will and Testament and the assets of the deceased are distributed to his or her rightful heirs. When a borrower passes away, it is a difficult time for the borrower’s family and the correct steps must be taken to protect the status of the mortgage loan while keeping in mind the difficulties the family is facing. This session will discuss the effects of the probate process on mortgage loan servicing and the necessary steps a servicer must take to avoid jeopardizing the mortgage priority status and how to properly deal with the borrower’s successors in interest.
SESSION OUTLINE
- What is Probate?
- Discovering the death of a borrower
- Methods of confirming a deceased borrower
- Confirming death through documentation
- Discovering the death of a borrower
- Dealing with the Next of Kin
- Can any family member claim the property?
- Rights of the family members
- Can we send payoff and reinstatement figures to family members?
- Can periodic statements and notices be sent to family members?
- The Probate Estate
- Who can open a probate estate?
- Can a lender or servicer initiate an estate filing?
- Initial documents filed in the estate
- Testacy or Intestacy
- Does the Will contain a power of sale clause?
- Is an Order from the Court necessary to transfer title?
- Can we deal with family members if there is no Will?
- Gathering the assets of the decedent
- What if the real property is located in another state?
- Ancillary estates
- The Role of the Executor or Personal Representative
- Protection of real property
- Determining heirs
- Intestate succession rules
- Distributing real property to the heirs
- Protecting the mortgage in an estate
- Filing a claim for the mortgage debt
- Hazard insurance
- Paying the real property taxes
- Does the probate process extinguish the mortgage?
- Can the probate court sell the property?
- Ancillary Estates
- Property located in another state than the state where the probate is filed
- Common Issues in Probate
- Creditor claims
- Problems with Deeds of Distribution
- Can they convey title?
- Common defects
- Sales from Open Estates
- Estates that are Never Opened
- Private Agreements or Disclaimers
- Liens against Heirs Attaching to Property
SPEAKER PROFILES
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Alexandria Kaminski Senior Associate Gross Polowy, LLC Alexandria Kaminski is a Senior Associate at Gross Polowy, LLC, and one of the firm's litigators. She represents clients in New York in the state and federal courts. Kaminiski practices in the areas of real estate, mortgage default servicing, foreclosure trial court litigation, and Wills and Estates. She is admitted to practice in New York, New Jersey, and California. |
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John Kay Managing Attorney - South Carolina Office Hutchens Law Firm John Kay is the Managing Attorney for the South Carolina office of the Hutchens Law Firm. He focuses his practice in the areas of mortgage default servicing, real estate, and bankruptcy and throughout the year is a frequent speaker at continuing legal education seminars on issues related to these areas. Kay has over 30 years of experience in representing mortgage lenders and servicers. He has been an active member of USFN for over two decades and is a member of the USFN Education Committee and has served as its Chair. Kay has also served on the Advisory Committee for the United States Bankruptcy Court for the District of South Carolina. |
Module 4: Exploring Deed in Lieu
Release Date
Week of October 23
Speakers
Graham Arceneaux, Graham, Arceneaux & Allen, LLC
Benjamin Paden, Doyle & Foutty, P.C.
Jim Sassano, Carlisle Law
Session Description
This session will explore the loss mitigation alternative, deed in lieu of foreclosure. It will focus on some potential pitfalls as well as timeline and cost-benefit analysis.
Week of October 23
Speakers
Graham Arceneaux, Graham, Arceneaux & Allen, LLC
Benjamin Paden, Doyle & Foutty, P.C.
Jim Sassano, Carlisle Law
Session Description
This session will explore the loss mitigation alternative, deed in lieu of foreclosure. It will focus on some potential pitfalls as well as timeline and cost-benefit analysis.
SESSION OUTLINE
- What is a deed in lieu of foreclosure?
- Loss mitigation option to circumvent the foreclosure process
- Process
- Title exam
- Title clearance
- Document drafting
- Document execution
- Gap title search
- Record documents
- Release deed of trust/mortgage
- Obtain title policy, if applicable
- Property condition
- Servicer generally requires collateral to be left in broom swept condition
- Personal property release
- Timeline – is the state a judicial or non-judicial foreclosure state?
- If judicial, DIL will likely be a much faster and cost effective alternative to foreclosure
- In a non-judicial state, DIL can sometimes take longer than foreclosure depending on what issues must be resolved on title to clear the way for DIL
- Title issues
- In foreclosure, generally must liens recorded in a junior position are extinguished by foreclosure if property served or noticed of the sale.
- In a DIL, liens in junior position survive and will need to be paid or a short payoff will need to be negotiated which can extend the timeline and cost.
- Deceased borrowers
- Joint tenants with right of survivorship
- Tenancy by the entirety
- Tenants in common
- Probate
- Court authorization
- Determination of heirship
- Trust vested in title – deceased trustee
- Successor Trustees
- Trust Certification
- Cancellation of promissory note/extinguishment of debt including any deficiency
- Not required for a DIL but generally is part of a consumer DIL transaction
SPEAKER PROFILES
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Graham Arceneaux Managing Attorney Graham, Arceneaux & Allen, LLC Appointed by the Louisiana Supreme Court to serve as a Member on the Committee for Bar Admissions and authored the Bar Examination questions for Business Entities and Negotiable Instruments, Graham Arceneaux was appointed to serve as a Judge-Ad-Hoc in First Parish Court for the Parish of Jefferson. He is currently a Committee Member serving on the Louisiana Attorney Disciplinary Board. He is a member of the Louisiana State Bar Association, The New Orleans Bar Association, USFN, Legal League 100, ALFN, The Mortgage Bankers Association, American Bankruptcy Institute, and Louisiana Banker’s Association. Arceneaux has taught continuing legal education courses regarding foreclosures as well as SCRA-related issues. He is licensed to practice in all Federal Courts in Louisiana as well as the U.S. Fifth Circuit Court of Appeals. He is the owner of Graham, Arceneaux & Allen, LLC, serves as President of Standard Title Agency, Inc., and is a retired U.S. Army Officer who served on active duty as well as in the Louisiana Army National Guard. While in the Louisiana Army National Guard, Arceneaux mobilized in support of Operation Iraqi Freedom as well as Operation Enduring Freedom (Afghanistan). Mr. Arceneaux’s practice areas include foreclosure, bankruptcy law, and real estate transactions. Mr. Arceneaux is a licensed fixed-wing and rotor-wing pilot and is a competitive long-distance runner. |
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All content, presentations, handouts, emails, website content, mobile app content, etc. provided by USFN in its publications, in connection with USFN events and otherwise (“Content”) is for educational purposes only, and should not be considered legal advice or a legal opinion. Every matter is different and poses a unique set of facts and circumstances. Legal advice can only be provided after analysis of all the facts and circumstances of a particular matter. In addition, all Content is current only through the date it is provided, and may change after that date due to changes in the law, custom, industry standards or best practices. We suggest that you consult with your USFN local counsel if you wish to retain a firm to provide legal advice on a particular issue or matter. Please do not hesitate to contact USFN for contact information for our firms for that purpose.
All content, presentations, handouts, emails, website content, mobile app content, etc. provided by USFN in its publications, in connection with USFN events and otherwise (“Content”) is for educational purposes only, and should not be considered legal advice or a legal opinion. Every matter is different and poses a unique set of facts and circumstances. Legal advice can only be provided after analysis of all the facts and circumstances of a particular matter. In addition, all Content is current only through the date it is provided, and may change after that date due to changes in the law, custom, industry standards or best practices. We suggest that you consult with your USFN local counsel if you wish to retain a firm to provide legal advice on a particular issue or matter. Please do not hesitate to contact USFN for contact information for our firms for that purpose.
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