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Nuts and Bolts of a Foreclosure Action

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Nuts and Bolts of a Foreclosure Action NUTS AND BOLTS OF A FORECLOSURE ACTION Sponsor: Young Lawyers Division CLE Credit: 1.0 Wednesday, June 17, 2015 2:25 p.m. - 3:25 p.m. Elkhorn A-D Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Nuts and Bolts of a Foreclosure Action ........................................................................... 1 Foreward ............................................................................................................. 1 Introduction .......................................................................................................... 2 Foreclosure Process ............................................................................................ 3 THE PRESENTER Bill L. Purtell Lerner Sampson & Rothfuss LPA 120 East Fourth Street, Suite 800 Cincinnati, Ohio 45202 (513) 619-6522 [email protected] BILL L. PURTELL is an attorney with Lerner Sampson & Rothfuss LPA in Cincinnati and practices in the areas of foreclosure, real estate and collections. He received his B.A. from Thomas More College and his J.D. from the University of Cincinnati College of Law. Mr. Purtell is a member of the Kentucky, Ohio and Sixth Circuit – Federal Bar Associations. He is also a member of the Legal Aid Society of Cincinnati – Volunteer Lawyers Project, Mortgage Bankers Association and USFN Attorney Network. i ii NUTS AND BOLTS OF A FORECLOSURE ACTION Bill L. Purtell I. FOREWARD A Kentucky lawyer sought to foreclose a loan for a client who had a mortgage on a parcel split from an old family farm. The Master Commissioner's report stated that the foreclosure would be recommended if the lawyer could prove satisfactory title to the parcel of property split from the master deed. The title to the original farm dated back to 1792, which took the lawyer three months to track down. After sending the information to the Master Commissioner, the lawyer received the following report: Upon review of the memorandum adjoining your client's motion for judgment, I note that the request is supported by an Abstract of Title. While I compliment the able manner in which you have prepared and presented the application, I must point out that you have only cleared title to the original deed back to 1792. Before judgment can be recommended to the Court, it will be necessary to clear the title back to its origin. Annoyed, the lawyer filed an objection to the report as follows: Your report regarding title in Case No. 15-CI-01234 has been received. I note that you wish to have title extended further than the 213 years covered by the present Abstract of Title. I was unaware that any educated person in this Commonwealth would not know that Kentucky seceded from Virginia in 1792, the year of origin identified in our motion for judgment. For the edification of the Commissioner's office, the title to the land prior to Virginia's statehood was obtained from England, which had acquired it by Right of Conquest from Spain. The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Isabella. The good queen Isabella secured the blessing of the Catholic Church, through its pontiff the Pope. The Pope is the emissary of Jesus Christ, the Son of God. God is credited with being the creator of the world, including, one presumes, Kentucky and Virginia. God, therefore, would be the owner of origin and His origins date back to before the beginning of time, the world as we know it, and the public records available to the plaintiff. I hope you find God's original claim to be satisfactory. Now, may we have our judgment? The order of sale was granted. 1 II. INTRODUCTION Foreclosure is…Forbidden? "Foreclosure of a mortgage is forbidden" – KRS 426.525 (2012). This seemingly straightforward statement does not actually mean that foreclosures do not occur in the Commonwealth of Kentucky. It bans the use of "strict foreclosure," which is a non-judicial method of recovering the mortgaged property by self-help.1 These non-judicial methods are actually the more prevalent type of foreclosure nationwide.2 An aggrieved creditor in Kentucky may bring an action in equity to enforce the mortgage and request a sale of the secured property. This is a judicial action that requests a finding that the covenants of the mortgage have been breached and asks that the property be sold to pay all lienholders in their order of priority. As a judicial action, creditors are free to bring as many other claims as they possess against the defendants, including money damages under a contract or promissory note, marshalling of liens against other creditors, as well as claims to reform scriveners errors in the loan documents. A foreclosure is real litigation which follows all the rules of civil procedure applicable to other civil actions. The main difference is that the rendering of a final, appealable order is merely the half-way point of the action. The true goal is the sale of the property, the disbursal of proceeds to the various creditors, and the issuance of a foreclosure deed. The most common type of foreclosure arises from a traditional lender-borrower relationship. A homeowner seeks a loan from a bank, secured by a mortgage, in order to purchase or refinance a piece of real estate. However, foreclosures also exist for mechanics lien holders, condominium associations, and judgment lien creditors. The foreclosure process is the same, but attention in this presentation will be given to foreclosure of consensual mortgages. For more detailed information about Kentucky foreclosure law, please see the monograph Foreclosure Actions in Kentucky by Gregory D. Pavey and Lea Pauley Goff (UK/CLE 2005, 1st ed.). 1 See Sebastian v. Floyd, 585 S.W.2d 381 (Ky. 1979), Watkins v. Eads, 2014 WL 2154901 (Ky. App. May 23, 2014). 2 Twenty-eight of fifty states use a non-judicial method. Source: Mortgage Bankers Association, http://www.mbaa.org/files/resourcecenter/foreclosureprocess/judicialversusnon- judicialforeclosure.pdf . 2 III. FORECLOSURE PROCESS A. Loan Documents 1. Promissory Note. Most mortgages secure the payment of negotiable instruments under KRS 355.3-104. The Note is the primary loan document which determines who is authorized to bring the foreclosure. The mortgage is simply a secondary document which accrues to the benefit of the noteholder.3 2. Mortgage. Most residential mortgages are drafted using the Fannie Mae/Freddie Mac uniform mortgage template,4 which contains the standard clauses used in the mortgage industry, including the rights and remedies upon default. Mortgage Electronic Registration Systems, Inc. (MERS) is the most common mortgage holder in the Commonwealth of Kentucky, being nominated as the holder of record by the borrower on behalf of the lender, its successors and assigns.5 3. Assignments. While the noteholder has equitable rights to enforce the mortgage,6 the better practice is to record an assignment of mortgage under KRS 382.365. This is generally when MERS will assign its title interests to the foreclosing noteholder. B. Pre-Foreclosure Compliance To accelerate a loan is to call all the payments due immediately, eliminating any further monthly payments. The entire balance becomes payable at once, which allows the foreclosure sale to fully satisfy the mortgage debt. Acceleration is not automatic, and may be governed by a host of different rules and requirements, all of which should be met before filing a foreclosure. 1. Contractual acceleration. Kentucky law does not require any specialized notice or warning before a foreclosure may be filed. Therefore, the terms of the note 3 Stevenson v. Bank of America, 359 S.W.3d 466 (Ky. App. 2011). 4 https://www.fanniemae.com/singlefamily/legal-documents. 5 http://www.mersinc.org/. 6 See Stevenson v. Bank of America, 359 S.W.3d 466 (Ky. App. 2011). 3 and mortgage generally dictate any pre-foreclosure compliance. The standard Fannie Mae/Freddie Mac uniform loan documents grant a thirty-day period in which the borrower must be notified in writing of the default on the loan and given a chance to pay the arrearage in full. However, if some other mortgage template is used by the lender, there is no requirement to include any prerequisites to acceleration of the loan once a default occurs. 2. CFPB regulations. In 2014, the Consumer
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