About CASE Files
The USFN CASE Files virtual four-part series continues with Series 3: Post-sale. Series 3 features four modules offering real-world applications and practical examples you can implement right away. Each 30-minute pre-recorded session is led by experienced USFN members providing a range of different, but balanced perspectives on the series topics. All modules can be viewed on-demand anytime and asynchronously. Find detailed information about each module below. Register today to access all four modules in the Post-sale series online and watch each session at your convenience.
Who Should Sign Up
CASE Files is developed especially for servicers and USFN members with mid-level industry experience (5-10 years) who are looking to dig into the nuances of their work. If you're cross-training from another team or department with less than 10 years of experience, you'll find value in CASE Files based on your interest areas and training needs.
Register Now for Access to All Four CASE Files Series!
SERIES 3 MODULE FEATURES
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Module 1: Just When You Thought It Was Over – Post-Sale Administration
Speakers
Adam Diaz, Diaz Anselmo & Associates, P.A.
Sally Garrison, The Mortgage Law Firm
Adam Diaz, Diaz Anselmo & Associates, P.A.
Sally Garrison, The Mortgage Law Firm
Session Description
Although you might think that the foreclosure action concludes with the public sale of the property, you still must navigate through the post-sale process once the foreclosure sale occurs. There are a myriad of twists and turns in this process, including sale issues, remaining rights the borrower may still retain, and confirming or ratifying the sale itself. This session will discuss these issues and how to overcome the challenges they present to maintain a smooth transition from foreclosure sale to REO.
Although you might think that the foreclosure action concludes with the public sale of the property, you still must navigate through the post-sale process once the foreclosure sale occurs. There are a myriad of twists and turns in this process, including sale issues, remaining rights the borrower may still retain, and confirming or ratifying the sale itself. This session will discuss these issues and how to overcome the challenges they present to maintain a smooth transition from foreclosure sale to REO.
SESSION OUTLINE
- Redemptions
- What is a Redemption?
- Who Has the Right to Redeem a Property?
- Borrower
- Current Owners
- Lien Holders
- Time Limits on Redemption
- Steps to Follow
- Is a Surety Bond Required?
- Determining the Amount Needed to Redeem
- Are Additional Costs Allowed?
- Are Additional Attorney Fees Allowed?
- Notice Requirements
- Ratification of the Sale
- What is the Process?
- Is Ratification Automatic?
- Is a Hearing Required?
- Who Ratifies the Sale – Trustee or Court official?
- Notice Requirements
- Borrower Rights?
- Lien Holder Rights
- What is the Process?
- The Deed Process
- Who Issues the Deed?
- Proof of Sale Compliance
- Assignments of the Sale Bid
- Surplus Funds
- Reconveyances
- Investor Reconveyances Due to Foreclosure Issues
- Appeals of Decisions to Reconvey
- Time Limits to Cure Deficiencies
- Reconveyances by Trustees in Non-Judicial States
- Investor Reconveyances Due to Foreclosure Issues
SPEAKER PROFILES
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Adam Diaz Partner Diaz Anselmo & Associates, P.A. Adam Diaz is AV Rated by Martindale-Hubbell which is the highest peer rating for Ethical Standards and Legal Ability. Diaz has concentrated his practice in the areas of mortgage foreclosure and real estate, bankruptcy, consumer protection actions, and commercial litigation. He is admitted in all Federal Courts in Florida as well as the United States Court of Appeals for the Eleventh Circuit. Diaz has been instrumental in advancing the law in the Bankruptcy Courts for Creditors and obtained one of the first opinions providing that a debtor is barred from defending property after surrender, as well as providing that a Debtor cannot cram down multiuse residential property. |
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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. |
Module 2: REO Pitfalls & How to Resolve Them
Speakers
Lois Vitti, Vitti Law Group, Inc.
Robert Wichowski, Brock & Scott, PLLC
Session Description
This session will address some of the most common title defects arising post-foreclosure and how best to resolve them. You will learn about the mobile home affixation process, the conundrum of HOA/COA lien priority, municipal and UCC liens, as well as encroachment and overlap boundary issues. This session will provide a concise summary of how each of these issues can be efficiently addressed to minimize post-sale delays.
Lois Vitti, Vitti Law Group, Inc.
Robert Wichowski, Brock & Scott, PLLC
Session Description
This session will address some of the most common title defects arising post-foreclosure and how best to resolve them. You will learn about the mobile home affixation process, the conundrum of HOA/COA lien priority, municipal and UCC liens, as well as encroachment and overlap boundary issues. This session will provide a concise summary of how each of these issues can be efficiently addressed to minimize post-sale delays.
SESSION OUTLINE
- Mobile Homes
- Often discovered prior to foreclosure but very often cannot be cured until title to the land is acquired through the foreclosure sale.
- Sometimes not known until post-sale when broker raises the issue.
- When does personal property become real property?
- Unity of title
- Affixation
- Severance
- Conversion
- Locating make/model/VIN/year/HUD tag numbers
- Loan origination file – appraisal
- Certificate of title
- Mobile home rider to mortgage
- Physical inspection
- Liens on certificate of title?
- Release required.
- Is the unit affixed?
- Factual inquiry, inspection required.
- Research
- Department of Revenue records search
- Institute of Building Technology and Safety search
- UCC lien search
- Statutory Affixation Requirements
- Vary by state but will generally set out the process through which the certificate of title is retired, converting the mobile home to real property.
- When is replevin or other litigation necessary to resolve a mobile home issue?
- Owners prior to foreclosed borrower still show on certificate of title to the mobile home
- Lien release could not be secured
- ALTA-7 endorsements are required for FHA and VA conveyances.
- Homeowner and Condominium Owner Association Liens
- Priority rules vary greatly by state.
- Superpriority v. limited priority v. no priority
- Uniform Condominium Act
- Where there is no statute in place, refer to the individual recorded HOA declaration for language relating to priority over mortgages.
- Municipal Liens
- Sewer
- Water
- Weed/grass cutting
- Nuisance/dangerous building
- Demolition
- Encroachments and Overlaps
- Typically a survey is not conducted as part of the foreclosure process therefore encroachments and overlaps are frequently not identified until REO.
- Obtaining a survey
- Reviewing a survey
- Negotiating an easement to cure an easement/overlap
- Negotiating a purchase to cure an easement/overlap
- Adverse possession/easement by prescription
- UCC Liens
- UCC liens retain first priority against the fixture they secure.
- Typically identified pre-sale but may be address post-sale, if the property is acquired.
- Issuing a demand for removal of fixture is an option, depending on what it is.
- Payoff
- Negotiating a short payoff
- Settlement Opportunities
- When facing imminent conveyance deadlines, it is important to consider alternative resolution and settlement options for all of the above issues.
SPEAKER PROFILES
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Lois Vitti Owner Vitti Law Group, Inc. Lois M. Vitti, of the Pittsburgh-based Vitti Law Group, Inc., has over 25 years of experience in regulatory and litigation matters arising out of bankruptcy, commercial, real estate, securities and subrogation matters at all stages including mediation, conciliation, trials, and appeals. Vitti also advises corporations, drafts corporate documents, litigates disputes, and protects intellectual property rights. She speaks often at conferences, universities, and seminars in the areas of business leadership, foreclosure, bankruptcy, and litigation. She currently handles matters in Pennsylvania, New York, and New Jersey. |
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Robert Wichowski Managing Partner of Litigation Brock & Scott, PLLC Robert Wichowski is a Principal of Brock & Scott, PLLC and the Managing Attorney of the firm’s Litigation Department, representing lenders in contested foreclosures, defensive, and affirmative litigation. He speaks at local, regional, and national seminars and round tables across the country in addition to conducting individual on-site training for clients. Rob has also authored many default servicing-related articles and co-authored several publications. |
Module 3: Audits/Objections – We Messed Up. What Now?
Speakers
Laura O'Sullivan, McCabe, Weisberg & Conway, LLC
Alex Schulz, The Mortgage Law Firm
Session Description
After a foreclosure sale takes place, instances exist where a rescission of the sale is necessary due to information that was unavailable prior to the sale. However, rescission depends on several factors. If the property sold third-party, the question becomes whether a lender can unilaterally rescind a sale or if cooperation from the Third-Party Purchaser is needed. Where a Third-Party Purchaser is unwilling to rescind a sale, then the lenders/servicers, with the help of counsel, must weigh the risks of potential litigation with the borrower or the third-party purchaser.
Laura O'Sullivan, McCabe, Weisberg & Conway, LLC
Alex Schulz, The Mortgage Law Firm
Session Description
After a foreclosure sale takes place, instances exist where a rescission of the sale is necessary due to information that was unavailable prior to the sale. However, rescission depends on several factors. If the property sold third-party, the question becomes whether a lender can unilaterally rescind a sale or if cooperation from the Third-Party Purchaser is needed. Where a Third-Party Purchaser is unwilling to rescind a sale, then the lenders/servicers, with the help of counsel, must weigh the risks of potential litigation with the borrower or the third-party purchaser.
SESSION OUTLINE
- Quality controls in Foreclosure
- Pre-sale QC
- Identification of errors requiring correction
- Additional steps to ensure proper pre-sale measures
- Post-Sale QC
- Identification of errors or unknowns and whether rescission is required
- Time is of the essence (on both front and back) to minimize loss, risk, and potential litigation
- Pre-sale QC
- Communication
- Client
- Borrower
- Third-Party Purchaser (“TPP”)
- Rescinding a Foreclosure Sale
- Non-Judicial Foreclosure vs. Judicial Foreclosure
- Rescission reasons:
- Bankruptcy
- Loan Reinstatement/Payoff
- Court Order / TRO
- Significant title issues
- Other
- Property sold to a Third-Party Purchaser
- Return of sale funds
- TPP demand for interest, costs, or some other amount to agree to rescind the sale
- Property reverted to beneficiary
- Notice of Rescission/process
- Trustee rescission
- Court order
- Affidavit
- No action (depending on deed delivery/recording and/or jurisdiction requirements)
- Payments & Funds Issues and Process
- Timing requirements
- Coordinating with client and purchaser
- Objections
- Third-Party Purchaser
- Risks associated with litigation
- Borrower
- Risks
- Third-Party Purchaser
SPEAKER PROFILES
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Laura O'Sullivan President McCabe, Weisberg & Conway, LLC Laura O'Sullivan, President of McCabe, Weisberg & Conway, LLC, has practiced in the area of creditors’ rights for over 25 years. She currently focuses her practice in the area of creditors' rights through managing a law firm that represents creditors in bankruptcy, foreclosure, eviction, loss mitigation, receivership, lender liability litigation, and REO settlements. |
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Alex Schulz Attorney The Mortgage Law Firm Alex Schulz has represented creditors in many roles since 2009, after completing a clerkship with the CO Court of Appeals. Before working as in-house counsel for two different banks, he joined the Mortgage Law Firm with an emphasis on bankruptcy, title issues, and litigation. For the past 8 years, he has represented mortgage servicers. Schulz works extensively on Hawaii and Arizona cases. His primary focus is bankruptcy and bankruptcy litigation. But he spends a considerable amount of time working on title issues, litigation title disputes, and judicial foreclosures. |
Module 4: Financial Audits – Where the Tires Truly Meet the Road!
Speakers
Andrew Brenner, BWW Law Group, LLC
Kelly Cosentino, Gross Polowy, LLC
Session Description
In the post-mortgage crisis environment, client oversight has evolved to a level where each step in the “cradle to grave” processing of a defaulted loan is verifiable and confirmable. The financial component is among the most important to both clients and firms. The fact that charges associated with a foreclosure matter impact the borrowers creates a high level of expectation for accuracy and compliance with client process.
Andrew Brenner, BWW Law Group, LLC
Kelly Cosentino, Gross Polowy, LLC
Session Description
In the post-mortgage crisis environment, client oversight has evolved to a level where each step in the “cradle to grave” processing of a defaulted loan is verifiable and confirmable. The financial component is among the most important to both clients and firms. The fact that charges associated with a foreclosure matter impact the borrowers creates a high level of expectation for accuracy and compliance with client process.
SESSION OUTLINE
- Reconciling:
- Firm reconciliation
- Balance Sheets
- Income Statements
- Case reconciliation
- Attorney fees: Supporting documentation reflecting time and work
- Court costs: Supporting documents supporting the costs incurred in a matter
- Fee approval – system reflects approved fees/costs
- Proof of completion – an example would be hearing results establishing attendance
- Firm reconciliation
- Non-recoverable
- Loan Documents: Control what is allowed as a charge
- State by State Statutes: Payoff vs. Reinstatement
- Subject to Court rulings
- Reasonableness of amounts
- Approval process compliance
- Disgorging
- Non-approved amounts – failure to follow procedure
- Lack of supporting documents for the fees/expenses
- Overcharges
SPEAKER PROFILES
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Andrew Brenner Partner BWW Law Group, LLC Andrew Brenner has several years of experience primarily representing institutional banks, title insurance companies, and mortgage servicers. He has successfully argued cases in each of the Maryland Trial and Appellate Courts. Brenner has conducted several on-site training presentations for clients relating to a variety of real estate-related matters. He is a frequent panelist at real estate industry conferences and seminars. He is licensed to practice law in Maryland and the District of Columbia. Brenner is a Partner and the Director of Firm Operations of the BWW Law Group, LLC. |
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Kelly Cosentino Compliance Attorney Gross Polowy, LLC Kelly Cosentino has been practicing in the consumer finance industry for over 13 years and has a demonstrated expertise in residential mortgage servicing and default, including in the areas of litigation, regulatory and legal compliance. Her industry experience and knowledge include time spent as internal counsel at a mortgage servicer as well as law firm experience in the state of New York. |
Learn more about CASE Files Virtual Workshop Series
Click on the links below to learn more about each series, including session outlines and speaker bios.
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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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