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497 Hooksett Rd. #105
 Manchester, NH 03104 
Phone: (603) 685 4301

In the News

QM and Nonjudicial Foreclosures - Credit Slips

The Dodd-Frank Act provides that failure to verify a borrower's ability to pay on a home mortgage entitles the borrower to a "asset a violation...as a matter of defense by recoupment or set off". 15 USC 1640(k). 

It's not clear me how this provision will play out in the context of nonjudicial foreclosures.  Does the ability to "assert a violation...as a matter of defense by recoupment or set off" enable borrowers to turn all nonjudicial foreclosures into judicial foreclosures? I don't know how one raises a defense or setoff to a nonjudicial foreclosure sale.  And if the foreclosure is nonjudicial, is the debtor's filing in court truly a defense?  Wouldn't it have to be a claim?  If so, would it create federal jurisdiction on federal question grounds?  Maybe the answer is to read 15 USC 1640(k) not as authorizing two types of defenses--recoupment and set off--but instead as authorizing either a defense (recoupment) and a claim (or counterclaim) for set off.

It's not clear to me exactly what was intended, but I have a lot of trouble seeing how 15 USC 1640(k) is going to work with nonjudicial foreclosure.  While I'm very skeptical about the strength of the remedy for violating the ability to pay requirement, I wonder 15 USC 1640(k) will herald greater judicialization (and possibly federalization) of foreclosures.

I'd love to hear thoughts on how 15 USC 1640(k) is likely to play out.

Read more http://www.creditslips.org/creditslips/2013/10/qm-and-nonjudicial-foreclosures.html

Company Contact

Stellionata Consulting, LLC

497 Hooksett Rd. #105

Manchester, NH 03104

Phone: (603) 685 4301

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Chain of Title

A few years ago, there was a lot of media hype about "producing the original note." There was almost equal response from the mortgage/foreclosure industry that the original note wasn't important and that reasonable facsimiles that were attested to as being "true and accurate copies of the original" were/are good enough to demonstrate that the current "bearer" of the copy is the rightful note holder and, therefore, has title and interest in the promissory note and has legal standing to foreclose.

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