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		<title>Foreclosure Defense Strategies: Potential Grounds for Foreclosure Injunctions in Arizona</title>
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		<pubDate>Sun, 22 Nov 2009 07:05:37 +0000</pubDate>
		<dc:creator>Rescind My Loan by Foreclosure Defense Attorney Steve Vondran</dc:creator>
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		<description><![CDATA[A few ways (ideas) to try to seek an injunction against foreclosure in Arizona
The following is general legal information only and is not to be construed as legal advice or a substitute for legal advice.  These are a few things to look at when investigating whether or not you have a defense to foreclosure.
Steve Vondran, [...]]]></description>
			<content:encoded><![CDATA[<p><strong style="font-weight: bold;">A few ways (ideas) to try to seek an injunction against foreclosure in Arizona</strong></p>
<p>The following is general legal information only and is not to be construed as legal advice or a substitute for legal advice.  These are a few things to look at when investigating whether or not you have a defense to foreclosure.</p>
<p>Steve Vondran, Esq. is an attorney practicing Real Estate, Bankruptcy and Foreclosure Defense in Phoenix, Arizona and California.  He can be reached at (877) 276-5084 or emailed at <a href="mailto:Steve@VondranLaw.com">Steve@VondranLaw.com</a></p>
<p><strong style="font-weight: bold;">POTENTIAL STRATEGIES TO SEEK AN INJUNCTION AGAINST FORECLOSURE IN PHOENIX, SCOTTSDALE, AND SURROUNDING AREAS IN ARIZONA.</strong></p>
<p>(1) <strong style="font-weight: bold;">Tort of Wrongful Foreclosure</strong>: For example, one way to try to seek an injunction to stop a foreclosure sale would be to argue that you received a loan modification or loan workout, and performed the agreement and thus, cured the breach.  See the case of <em style="font-style: italic;">Herring v. Countrywide Home Loans</em>, 2007 WL 2051394 (D. Ariz. 2007).   This is a foreclosure defense grounds that definitely needs to be explored with the explosion of loan modifications in Phoenix, Arizona and elsewhere.   Under the Obama Making Home Affordable program (HAMP), and under some FHA HAMP modification programs, the lenders and loan servicers are giving out “three month trial plan” offers.</p>
<p>These agreements typically state that the borrower does, or may, qualify for a loan modification.  The borrower, induced into believing they qualify for a loan modification, typically makes the three payments, and may also submit financial documentation to be reviewed.   In at least some of these trial plan modification agreements we have reviewed,  the lender promises that if the three trial plan payments are made on time, and if the borrower’s financial condition (and some other “material representations” made by the borrower) do not change by the time the third payment is made, then the lender, in some of these agreements, agrees to provide the final and permanent loan modification which is supposed to be in line with the the trial plan payment was.   What we are seeing is lenders and loan servicers not honoring what appears to be a valid agreement, and instead either denying the modification, and in some cases, selling the house from underneath the borrower.  If you feel duped by a trial plan offer that was not honored, check out our website at <a href="http://www.TrialPlanFraud.com">www.TrialPlanFraud.com</a></p>
<p>The court may reach the conclusion that the lender / beneficiary is not exercising the power of sale in good faith in violation of its statutory duty.</p>
<p><strong style="font-weight: bold;">(2) </strong><strong style="font-weight: bold;">Failure to Comply with Arizona Foreclosure Statutes:</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>There can be no valid foreclosure in the State of Arizona without complying with the rules and regulations set forth in the Arizona foreclosure statutes.</p>
<p>For example, if there is a failure to follow the Notice of Sale Procedures this could provide proper grounds to enjoin the foreclosure sale in Phoenix, Scottsdale, and other surrounding Arizona cities.  Here are the statutory requirements under Arizona Revised Statutes Section 33-808.</p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>33-808. <span style="text-decoration: underline;">Notice of trustee&#8217;s sale</span></p>
<p>A. The trustee shall give written notice of the time and place of sale legally describing the trust property to be sold by each of the following methods:<br />
1. Recording a notice in the office of the recorder of each county where the trust property is situated.<br />
2. Giving notice as provided in section 33-809 to the extent applicable.<br />
3. Posting a copy of the notice of sale, at least twenty days before the date of sale in some conspicuous place on the trust property to be sold, if posting can be accomplished without a breach of the peace. If access to the trust property is denied because a common entrance to the property is restricted by a limited access gate or similar impediment, the property shall be posted by posting notice at that gate or impediment. Notice shall also be posted at one of the places provided for posting public notices at any building that serves as a location of the superior court in the county where the trust property is to be sold. Posting is deemed completed on the date the trust property is posted. The posting of notice at the superior court location is deemed a ministerial act.<br />
4. Publication of the notice of sale in a newspaper of general circulation in each county in which the trust property to be sold is situated. The notice of sale shall be published at least once a week for four consecutive weeks. The last date of publication shall not be less than ten days prior to the date of sale. Publication is deemed completed on the date of the first of the four publications of the notice of sale pursuant to this paragraph.<br />
B. The sale shall be held at the time and place designated in the notice of sale on a day other than a Saturday or legal holiday between 9:00 a.m. and 5:00 p.m. mountain standard time at a specified place on the trust property, at a specified place at any building that serves as a location of the superior court or at a specified place at a place of business of the trustee, in any county in which part of the trust property to be sold is situated.<br />
C. The notice of sale shall contain:<br />
1. The date, time and place of the sale. The date, time and place shall be set pursuant to section 33-807, subsection D. The date shall be no sooner than the ninety-first day after the date that the notice of sale was recorded.<br />
2. The street address, if any, or identifiable location as well as the legal description of the trust property.<br />
3. The county assessor&#8217;s tax parcel number for the trust property or the tax parcel number of a larger parcel of which the trust property is a part.<br />
4. The original principal balance as shown on the deed of trust. If the amount is not shown on the deed of trust, it shall be listed as &#8220;unspecified&#8221;.<br />
5. The names and addresses, as of the date the notice of sale is recorded, of the beneficiary and the trustee, the name and address of the original trustor as stated in the deed of trust, the signature of the trustee and the basis for the trustee&#8217;s qualification pursuant to section 33-803, subsection A, including an express statement of the paragraph under subsection A on which the qualification is based. The address of the beneficiary shall not be in care of the trustee.</p>
<p>6. The telephone number of the trustee.<br />
7. The name of the state or federal licensing or regulatory body or controlling agency of the trustee as prescribed by section 33-803, subsection A.<br />
D. The notice of sale shall be sufficient if made in substantially the following form:</p>
<p>Notice of Trustee&#8217;s Sale<br />
The following legally described trust property will be sold, pursuant to the power of sale under that certain trust deed recorded in docket or book _______________________ at page __________ records of ______________ county, Arizona, at public auction to the highest bidder at (specific place of sale as permitted by law) _______________, in _______________ county, in or near _______________, Arizona, on ________, ____, at ___________ o&#8217;clock ___m. of said day:</p>
<p>(street address, if any, or identifiable</p>
<p>location of trust property)</p>
<p>(legal description of trust property)</p>
<p>Tax parcel number _______________</p>
<p>Original principal balance $________________________</p>
<p>Name and address of beneficiary ______________________________</p>
<p>______________________________</p>
<p>______________________________</p>
<p>Name and address of original trustor _________________________</p>
<p>_________________________</p>
<p>_________________________</p>
<p>Name, address and telephone number of trustee ________________</p>
<p>__________________________________</p>
<p>__________________________________</p>
<p>Signature of trustee _____________________________</p>
<p>Manner of trustee qualification ___________________________</p>
<p>Name of trustee&#8217;s regulator _______________________________</p>
<p>Dated this _____________ day of ______________, ____.</p>
<p>(Acknowledgement)<br />
E. Any error or omission in the information required by subsection C or D of this section, other than an error in the legal description of the trust property or an error in the date, time or place of sale, shall not invalidate a trustee&#8217;s sale. Any error in the legal description of the trust property shall not invalidate a trustee&#8217;s sale if considered as a whole the information provided is sufficient to identify the trust property being sold. If there is an error or omission in the legal description so that the trust property cannot be identified, or if there is an error in the date, time or place of sale, the trustee shall record a cancellation of notice of sale. The trustee or any person furnishing information to the trustee shall not be subject to liability for any error or omission in the information required by subsection C of this section except for the wilful and intentional failure to provide such information. This subsection does not apply to claims made by an insured under any policy of title insurance.<br />
F. The notice of trustee sale may not be rerecorded for any reason. This subsection does not prohibit the recording of a new or subsequent notice of sale regarding the same property.<strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;">Also note, where the deed of trust or mortgage calls for a certain plan or procedure for foreclosure, that plan must be followed.  Therefore, you need to check the procedures set forth in the deed of trust or mortgage instrument and see if they complied with the procedures that may be called for therein.</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;">There are other sections relating to foreclosure that must also be reviewed.  For example, substitution of Trustees is covered in this section:</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>33-804. <span style="text-decoration: underline;">Appointment of successor trustee by beneficiary</span></p>
<p>A. If a person appointed as trustee fails to qualify, is unwilling or unable to serve or resigns as trustee or if a trustee was not designated in the deed of trust, the beneficiary may appoint a successor trustee, and such appointment shall constitute a substitution of trustee.<br />
B. The beneficiary may at any time remove a trustee for any reason or cause and appoint a successor trustee, and such appointment shall constitute a substitution of trustee.<br />
C. A notice of substitution of trustee shall be recorded in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the substitution. The beneficiary shall give written notice through registered or certified mail, with postage prepaid, to the trustor.<br />
D. A notice of substitution of trustee shall contain a description of the basis for the successor trustee&#8217;s qualification pursuant to section 33-803, subsection A. A notice of substitution of trustee shall be sufficient if acknowledged by all beneficiaries under the trust deed or their agents as authorized in writing and if prepared in substantially the following form:<br />
Notice of Substitution of Trustee</p>
<p>The undersigned beneficiary hereby appoints ___________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ successor trustee under the trust deed executed by ____________________ as trustor, in which _____________ is named beneficiary and _____________ as trustee, and recorded ________________, _____, in _________________ county in book or docket _________________, page ______________, and legally describing the trust property as:</p>
<p>(legal description of trust property)</p>
<p>The successor trustee appointed herein qualifies as a trustee of the trust deed in the trustee&#8217;s capacity as a ______________________ as required by Arizona Revised Statutes section 33-803, subsection A.</p>
<p>Dated this _______________ day of ________________, ____.</p>
<p>____________________</p>
<p>Signature</p>
<p>(Acknowledgement)<br />
E. A notice of substitution of trustee is effective immediately on execution as prescribed by subsection D of this section.<br />
F. A person appointed as a trustee under a deed of trust may resign as trustee at any time. Any such resignation shall be without liability, provided the person has not agreed in writing or by the person&#8217;s conduct to act in such capacity. If the trustee has agreed in writing or by the person&#8217;s conduct to act in such capacity, the person may only resign in accordance with the terms of the trust deed and this chapter. If a trustee fails to qualify or is unwilling or unable to serve or resigns, it does not affect the validity of the deed of trust, except that no action required to be performed by the trustee under this chapter or under the deed of trust may be taken until a successor trustee is appointed by the beneficiary or the beneficiary&#8217;s agent as authorized in writing pursuant to this section. Resignation by a trustee is made by recordation of a notice of resignation in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the resignation. Written notice shall be given through registered or certified mail, with postage prepaid, to the trustor and the beneficiary. A notice of resignation of trustee is sufficient if acknowledged by the trustee and prepared in substantially the following form:</p>
<p>Notice of Resignation of Trustee</p>
<p>The undersigned trustee hereby resigns as trustee under the deed of trust executed by ________________, as trustor, in which ________________ is named beneficiary, and recorded ________________, ____, in ________________ county, in book or docket __________, page __________, and legally describing the trust property as:</p>
<p>(legal description of trust property)</p>
<p>Dated this _______________ day of _______________, ____.</p>
<p>_________________</p>
<p>Signature</p>
<p>(Acknowledgement)</p>
<p><strong style="font-weight: bold;">Other Sections to look at (that may allow an Arizona homeowner to enjoin and/or set aside a foreclosure sale in Arizona) might relate to irregularities in the foreclosure sale/bidding process.</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>33-810. <span style="text-decoration: underline;">Sale by public auction; postponement of sale</span></p>
<p>A. On the date and at the time and place designated in the notice of sale, the trustee shall offer to sell the trust property at public auction for cash to the highest bidder. The trustee may schedule more than one sale for the same date, time and place. The attorney or agent for the trustee may conduct the sale and act at such sale as the auctioneer for the trustee. Any person, including the trustee or beneficiary, may bid at the sale. Only the beneficiary may make a credit bid in lieu of cash at sale. The trustee shall require every bidder except the beneficiary to provide a ten thousand dollar deposit in any form that is satisfactory to the trustee as a condition of entering a bid. The trustee or auctioneer may control the means and manner of the auction. Every bid shall be deemed an irrevocable offer until the sale is completed, except that a subsequent bid by the same bidder for a higher amount shall cancel that bidder&#8217;s lower bid. To determine the highest price bid, the trustor or beneficiary present at the sale may recommend the manner in which the known lots, parcels or divisions of the trust property described in the notice of sale be sold. The trustee shall conditionally sell the trust property under each recommendation, and, in addition, shall conditionally sell the trust property as a whole. The trustee shall determine which conditional sale or sales result in the highest total price bid for all of the trust property. The trustee shall return deposits to all but the bidder or bidders whose bid or bids result in the highest bid price. The sale shall be completed on payment by the purchaser of the price bid in a form satisfactory to the trustee. The subsequent execution, delivery and recordation of the trustee&#8217;s deed as prescribed by section 33-811 are ministerial acts. If the trustee&#8217;s deed is recorded in the county in which the trust property is located within fifteen business days after the date of the sale, the trustee&#8217;s sale is deemed perfected at the appointed date and time of the trustee&#8217;s sale. If the highest price bid at a completed sale is less than the amount of that bidder&#8217;s deposit, the amount of the deposit in excess of the bid price shall be refunded by the trustee at the time of delivery of the trustee&#8217;s deed.<br />
B. The person conducting the sale may postpone or continue the sale from time to time or change the place of the sale to any other location authorized pursuant to this chapter by giving notice of the new date, time and place by public declaration at the time and place last appointed for the sale. Any new sale date shall be a fixed date within ninety calendar days of the date of the declaration. After a sale has been postponed or continued, the trustee, on request, shall make available the date and time of the next scheduled sale and, if the location of the sale has been changed, the new location of the sale until the sale has been conducted or canceled and providing this information shall be without obligation or liability for the accuracy or completeness of the information. No other notice of the postponed, continued or relocated sale is required except as provided in subsection C of this section.<br />
C. A sale shall not be complete if the sale as held is contrary to or in violation of any federal statute in effect because of an unknown or undisclosed bankruptcy. A sale so held shall be deemed to be continued to a date, time and place announced by the trustee at the sale and shall comply with subsection B of this section or, if not announced, shall be continued to the same place and at the same time twenty-eight days later, unless the twenty-eighth day falls on a Saturday or legal holiday, in which event it shall be continued to the first business day thereafter. In the event a sale is continued because of an unknown or undisclosed bankruptcy, the trustee shall notify by registered or certified mail, with postage prepaid, all bidders who provide their names, addresses and telephone numbers in writing to the party conducting the sale of the continuation of the sale.<br />
D. A sale is postponed by operation of law to the next business day at the same scheduled time and place if an act of force majeure prevents access to the sale location for the conduct of the sale.</p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>NOTE: See also <em style="font-style: italic;">In re Kahn</em>, 203 Ariz. 205 (2002) where a Court held that gross inadequacy of sale price may be grounds to set aside a foreclosure sale.  In regard to the question of what constitutes “gross inadequacy” the court held:</p>
<p><strong style="font-weight: bold;">Determining gross inadequacy</strong></p>
<p><em style="font-style: italic;">“Gross inadequacy” cannot be precisely defined in terms of a specific percentage of fair market value. Generally, however, a court is warranted in invalidating a sale where the price is less than 20 percent of fair market value and, absent other foreclosure defects, is usually not warranted in invalidating a sale that yields in excess of that amount.  The Court also cited to the RESTATEMENT § 8.3 (emphasis added) and stated: In Fenton, our court of appeals noted, “even assuming that the price was inadequate, that fact standing alone would not justify setting aside the trustee&#8217;s sale…………..there must be in addition proof of some element of fraud, unfairness, or oppression as accounts for and brings about the inadequacy of price.”</em></p>
<p><em style="font-style: italic;"> </em></p>
<p><strong style="font-weight: bold;">THESE ARE JUST A FEW OF THE FORECLOSURE LAW SECTIONS THAT NEED TO BE LOOKED AT IN DETERMINING WHETHER THE FORECLOSURE PROCESS IN ARIZONA IS VALID.  CONTACT AN ARIZONA FORECLOSURE DEFENSE LAWYER TO REVIEW YOUR CASE.</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;">(3) </strong><strong style="font-weight: bold;">Oppressive and unconscionable conduct of beneficiary/mortgagee or their agents (ex. loan servicers) in regard to loan acceleration and/or foreclosure tactics:</strong></p>
<p>For example, pursuing the power of sale on trivial breaches, accepting late payments yet still foreclosing, etc.  Review the case of <em style="font-style: italic;">Vork v. Dunn</em>, 161 Ariz. 24, 775 (1989) for more information on possible challenges in this regard.</p>
<p><strong style="font-weight: bold;"> </strong></p>
<p><strong style="font-weight: bold;">(4) </strong><strong style="font-weight: bold;">TILA (truth in lending) Violations that trigger an extended three year right to rescind.  Some general principles illuminating portions of TILA can be found in the case of Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354, D.Ariz. 1989.  In this case the court outlined the following TILA principles:</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>“In the case of closed-end credit, the material disclosures required of the lender are as follows: annual percentage rate, the finance charge, the amount financed, total of payments, and the payment schedule. TILA Sec. 103(u), 15 U.S.C. Sec. 1602(u). “Payment schedule” is defined as the number, amounts, and timing of payments scheduled to repay the obligation. Reg. Z, 12 C.F.R. Sec. 226.18(g); TILA Sec. 128(a)(6). The payment amount (which was stated incorrectly) on the original disclosure form is considered a “material” disclosure.</p>
<p>The consumer may exercise the right to rescind until midnight of the third business day following the latest of the following events:</p>
<p>1) consummation of the transaction;</p>
<p>2) delivery of notice of the right to rescind, or</p>
<p>3) delivery of all material disclosures.</p>
<p>See TILA Sec. 125(a), 15 U.S.C. Sec. 1635(a)</p>
<p>The consumer has a continuing right to rescind until the creditor provides the rescission notice and also supplies a copy of the TIL disclosure statement with all material information correctly disclosed. National Consumer Law Center, Truth in Lending (1986), para. 6.3.2 at 137.</p>
<p>Technical or minor violations of TILA, or Regulation Z, as well as major violations impose liability on the creditor and entitle the borrower to rescind. Semar v. Platte Valley Fed. S &amp; L Assoc., 791 F.2d 699, 704 (9th Cir.1986) (notice to rescind was in error because it did not list the actual day *356 of expiration, but said “three business days after July 16”).</p>
<p>Congress made it clear that rescission suits are allowed after disclosure suits, and explicitly provided a statutory damages penalty for rescission violations. Aquino v. Public Finance Consumer Discount Co. 606 F.Supp 504, 511 (E.D.Pa.1985), based on S.Rep. No. 96-368, reprinted in 1980 U.S.Code Cong. &amp; Admin.News at 236, 267.</p>
<p>If a mathematical error occurs with regard to a material disclosure, the three day rescission period will not commence, and thus the right to rescind will not expire three days later. Indeed, it will not expire until three business days after the correct disclosure is finally provided or until the earlier of three years after consummation. Rohrer, The Law of Truth in Lending (1984) at 8-33.</p>
<p>The rescission form that Wells Fargo had the Smiths sign at closing was not sufficient because the correct date of rescission must be stated. Reg. Z Sec. 226.23(b); TILA Sec. 125(a, f). To comply with this regulation, Wells Fargo was required to provide new rescission forms with the correct expiration date when the corrected material disclosure was made. Rohrer at 8-43.</p>
<p>There is a continuing right to rescind the transaction when the creditor makes an error regarding a material disclosure on the disclosure statement. In re Underwood, 66 B.R. 656 (Bkrtcy.W.D.Va.1986). In the Underwood case, the plaintiffs never received rescission forms-not when they initially closed, nor when the new finance charge data arrived. The court said “they would have had a continuing right to rescind the transaction even if they had initially been given copies of the Notice of the Right to Cancel because the defendant failed to make what now appears an admittedly erroneous and material disclosure on the disclosure statement.” Id. at 662. The court further stated that the Underwoods were entitled to rescind the transaction at any time within three years of the consummation of the transaction unless provided a statement containing the correct finance charge along with rescission forms. Id.</p>
<p>It is apparent that the courts have interpreted the right to rescind as being a continuing one in situations such as this. Here, Wells Fargo stated an incorrect payment amount (a material disclosure), and when the corrected amount was disclosed, they should have provided new rescission forms in compliance with the Truth in Lending Act. Because the Smiths were not given the new forms, they have a continuing right to rescind, within the statute of limitations of three years. 15 U.S.C. Sec. 1635(f).</p>
<p>Several defenses against TILA actions are available to creditors. There are three types of defenses: the TILA itself, common law, and standard procedural and jurisdictional defenses. NCLC at 146. The interpretation of the TILA defenses lies exclusively with the courts; Regulation Z and the Commentary of the Federal Reserve Board do not interpret them. Id.</p>
<p>[2]  As to the right to rescind, Wells Fargo raises the defense of good faith conformity with the FRB rules, regulations, or interpretations. TILA Sec. 130(f), 15 U.S.C. Sec. 1640(f). Under the New Act, the creditor&#8217;s good-faith conformity is limited to the Regulations and the Commentary which supersede all previous formal and informal FRB staff interpretations, and the defense provides no protection for reliance on court decisions. Hamilton v. Southern Discount Co., 656 F.2d 150 (5th Cir.1981).</p>
<p>A creditor may not merely allege good faith conformity; it must point to the specific regulation, ruling, or interpretation with which it claims conformity. Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1287 (7th Cir.1980), rev&#8217;d on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). Wells Fargo relies on the lack of a requirement for a new rescission form in the regulations as its defense, but fails to cite any specific authority to support its position. In this situation, courts have concluded that if a creditor misreads or misconstrues the provision, it is not entitled to the defense, even if the mistake is a reasonable one. Id. at 1278 *357 (creditor&#8217;s mistaken interpretation of Regulation Z, even if honest and reasonable, is not a defense under Sec. 1640(f); see also Kessler v. Associates Fin. Services Co., 573 F.2d 577, 579 (9th Cir.1977).</p>
<p>However, where the provision is ambiguous and the creditor reasonably construes the provision as applying to its act or omission, it may be entitled to the conformity defense. Charles v. Krauss Co., 572 F.2d 544 (5th Cir.1978) (creditor&#8217;s good faith belief that its contract form complied with the literal language of Sec. 226.801 forms exception provided a good faith defense). A case by case interpretation is required. NCLC at 147.</p>
<p>TILA is not ambiguous with regard to the right to rescind in this instance, and courts have made clear the continuing right to rescind in situations such as these. A new rescission form should have been provided, and Wells Fargo&#8217;s mistaken interpretation of Regulation Z is not a defense.</p>
<p>This may give you a general idea of TILA law and how the Courts may look at these issues.  We have posted other Truth in Lending blogs that you can search for online.  There is a radio show we did which also discussed Truth in Lending, in general terms on one show.  You can visit that site at <a href="http://www.LoanModRadio.com">www.LoanModRadio.com</a></p>
<p>TILA extended rescission rights may prove a nice foreclosure defense strategy where the borrower can put together a “tender” plan.</p>
<p><strong style="font-weight: bold;">(5) </strong><strong style="font-weight: bold;">Certain second mortgages containing a “balloon” payment may not be foreclosed upon (generally junior mortgages less than $10,000).  Here is an Arizona statutory section that deals with that topic.</strong></p>
<p>6-114. <span style="text-decoration: underline;">Balloon payments prohibited; applicability; exemptions</span></p>
<p>A. A person engaged in the business of lending money or negotiating a loan between parties shall not make or arrange a loan in violation of this section.</p>
<p>B. On a loan in an amount of <strong style="font-weight: bold;">ten thousand dollars or less for a term up to three years</strong> which is secured by a lien on real property comprising an <strong style="font-weight: bold;">owner-occupied dwelling</strong>, an installment payment, whether providing for payment of principal, interest or principal and interest, <strong style="font-weight: bold;">shall not be greater than twice the amount of the smallest installment</strong>.</p>
<p>C. This section applies only to mortgages, trust deeds or other evidences of indebtedness secured by <strong style="font-weight: bold;">a lien other than a primary or first lien</strong> on real property.</p>
<p>D. This section does not apply to transactions involving the purchase or sale or the proposed purchase or sale of real property or to a financial institution licensed or chartered by this state or the federal government.</p>
<p>E. Pursuant to the provisions of 12 United States Code section 3804, this section shall not be superseded by the provisions of 12 United States Code section 3803.</p>
<p><strong style="font-weight: bold;">(6) </strong><strong style="font-weight: bold;">Failure of Consideration (question of fact for the jury)</strong></p>
<p><strong style="font-weight: bold;"> </strong></p>
<p>See the case of <em style="font-style: italic;">Sepo v. First National Bank of Arizona</em>, 21 Ariz. App. 606, (1974) where the Court held:</p>
<p><em style="font-style: italic;"> </em></p>
<p><em style="font-style: italic;">“Failure of consideration consists in failure to perform, or carry out, or make good a promise given as consideration for an instrument……whether or not a failure of consideration has occurred may be a question of fact for a jury to determine…..where several promises are made by one party the question whether breach of one such promise results in a complete or a partial failure of consideration, or no failure at all, is determined under the doctrine of substantial performance…..the parties raising the defense of failure of consideration with reference to a note have the burden of proving it.”</em></p>
<p>It is not entirely clear how far this holding can stretch.  For example, in the case of securitized loans, where MERS or a Trustee of a Trust claims it is the owner of the loan / loan beneficiary, but yet they gave no consideration to the transaction, can this be a grounds to raise to prevent foreclosure?  For more general information about issues raised by securitized loans, and the so-called “<em style="font-style: italic;">produce the note</em>” foreclosure defense strategy that has been successful in some states see our website at <a href="http://www.ProduceTheNoteAttorney.com">www.ProduceTheNoteAttorney.com</a> where we discuss some of these issues and potential legal challenges.  Note, many of these produce-the-note strategies are in the &#8220;test-phase.&#8221;</p>
<p>(7)  <strong style="font-weight: bold;">Filing Bankruptcy (may temporarily stay a foreclosure, and in some cases may prevent a foreclosure).</strong> See our website at <a href="http://www.BKAttorneyS.net">www.BKAttorneyS.net</a> (BK Attorney Steve)</p>
<p>The preceding are some of the grounds that can be reviewed by a foreclosure defense attorney in Phoenix, Scottsdale, and surrounding cities in Arizona to see of you may have a right to seek an injunction against foreclosure.  There maybe other grounds to review given the facts and circumstances of your case.  For example where qualified written requests are not responded to and legitimate questions as to whether payments were properly paid and applied may raise a defense warranting at least a temporary restraining order stopping the foreclosure sale.  <em style="font-style: italic;">Reverse Redlining – Financial Discrimination</em> may also be another ground worth pursuing.</p>
<p>In addition, if you have an option arm loan it may be possible to argue that the loan is unconscionable and therefore unenforceable (see more discussion on our website <a href="http://www.OptionArmLawyer.com">www.OptionArmLawyer.com</a>.  <em style="font-style: italic;">Again, certain facts have to be ferreted out to see if you truly have a valid good faith defense to assert that might stop your foreclosure.  The Courts will not likely treat you favorably where frivolous claims are filed (especially where loan payments are seriously delinquent), which tenuous claims are also prohibited from being filed by attorney ethics</em>.  Again, have your case reviewed by a real estate lawyer / foreclosure defense attorney.</p>
<p><em style="font-style: italic;">ABOUT US:</em></p>
<p>The Law Offices of Steve Vondran in licensed to practice law in California and Arizona.  Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.</p>
<p>He can be reached by email at <a href="mailto:steve@vondranlaw.com">steve@vondranlaw.com</a> or toll free (877) 276-5084</p>
<p><strong style="font-weight: bold;">Offices:</strong></p>
<p><em style="font-style: italic;"> </em></p>
<p><em style="font-style: italic;">Arizona Office</em> (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.</p>
<p><em style="font-style: italic;">California Office</em> (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660</p>
<p><strong style="font-weight: bold;"><em style="font-style: italic;">Our Real Estate Law Services</em></strong><strong style="font-weight: bold;">:</strong></p>
<p>Loan Modifications / Loan Workouts (World Savings / Wachovia Loans)</p>
<p>Commercial Lease Modifications</p>
<p>Broker Advance Fee Agreements (Residential and Commercial)</p>
<p>DRE audits, hearings and investigations</p>
<p>Real Estate Broker admissions cases</p>
<p>Foreclosure Defense</p>
<p>Predatory Lending</p>
<p>Mortgage Law</p>
<p>Phoenix Real Estate Zoning Attorney</p>
<p>Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207</p>
<p>Real Estate Arbitration, Litigation and Mediation</p>
<p>Foreclosure Consultant Contracts</p>
<p>Real Estate LLC’s</p>
<p>Real Estate Partnership Law</p>
<p>Quiet Title Actions</p>
<p>Forensic Loan Audits (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)</p>
<p>**ASK ABOUT ABOUT CHAPTER 7 BANKRUPTCY.</p>
<p><strong style="font-weight: bold;"><em style="font-style: italic;">KEYWORDS</em></strong>: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER /  TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION ATTORNEY / NEWPORT BEACH LOAN MODIFICATION LAWYER / NEWPORT BEACH LOAN MODIFICATION ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAW.</p>
<p><strong style="font-weight: bold;">NOTICE:</strong></p>
<p>The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice.  If you have specific legal questions about your foreclosure case, or loan modification case you should seek the advice of a real estate attorney.  In addition, the information posted above may not be 100% complete, accurate or up-to-date.  The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.  He can be reached by email at <a href="mailto:steve@vondranlaw.com">steve@vondranlaw.com</a> or toll free (877) 276-5084. This is an advertisement and communication pursuant to State Bar Rules.  Please do not send us private or confidential information through any of our above-listed websites.   Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this).</p>
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