ASLegalAid.orgAmerican Samoa Legal Aid: Justice for All

ASLA LEGAL WORKSHOP ON HOME FORECLOSURE DEFENSE

Authored By: American Samoa Legal Aid
Read this in:
Samoan / Gagana Samoa

From a meeting conducted 4/26/17 @2pm, ASLA Office

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  1. ASLA received Bank of America settlement funds since September 2016 for home foreclosure prevention legal assistance and community redevelopment legal assistance. An ASLA priority is preserving the Home.
  2. Home Mortage Loan is a home loan usually secured by land and/or improvements on the land such as the home itself. Land security in American Samoa used for home mortgage loans usually are individual land or communal land leases. This type of loan is different from a home loan without a mortgage or a commercial loan or an installment/personal loan.
  3. Home Foreclosure Sale is the process by which a lender forecloses an interest in the security for the home loan by taking possession of the mortgaged property and selling the security to the highest bidder.
  4. Tips to Prevent or Defend Against Home Foreclosure Sale:
    1. Comply with your home mortgage loan terms, especially the terms of the promissory note and mortgage/security document.
    2. While paying your home mortgage loan, if there is a significant reduction in your family's monthly income or significant increase in your family's monthly expenses or both, contact your lender immediately to verify your loan interest, payments and balances, ask to modify your promissory note or rewrite your loan through lowering monthly payments, extending loan maturity date, lowering interest rate, consolidating your debts etc.
    3. Try not to have your delinquent loan referred by the lender to the lender's attorney, because lawyer fees will be added to your loan payments.
    4. If you receive a demand letter from the lender's attorney regarding your delinquent home mortgage loan, immediately contact your attorney or come to ASLA to ask if you are eligible for legal assitance. What are ASLA's eligibility criteria? What is ASLA's intake process? What is ASLA's Private Attorney Involvement reduced-fee program?
    5. If you are seeking legal assistance from ASLA to prevent home foreclosure, ASLA will ask you to provide the following documents at the earliest opportunity:
      • home mortgage loan promissory note
      • TRO registered copy of mortage or security instrument
      • TRO registered copy of deed for individual land
      • TRO registered copy of land lease
      • TRO registered copy of lessor's consent to mortgage
      • TRO registered surveys of mortgaged land
      • other loan documents including modification of promissory note and mortgage
      • workout agreement
      • complete history of loan payments
    6. Determine what is the lender's basis for wanting to foreclose on its home loan mortgage. Is it because of delinquent loan payments or non-compliance with other terms of the mortage? Is the borrower able to cure the default within the time provided by the mortgage document?
    7. Possible Challenges Against Home Loan Mortage Foreclosure Action:
      1. Mortgage document was not registered at the TRO.
      2. Lender/mortgagee did not follow requirements in the mortgage document before foreclosure.
      3. Land being mortgaged not accurately described in the mortgage.
      4. Land being mortgaged not sufficiently described in the mortgage.
      5. Another creditor has a priority lien on the same land and home.
      6. Deed of individual land being mortgaged and accompanying accurate survey not registered.
      7. Communal land lease being mortgaged and accompanying accurate survey not registered.
      8. Lessor of the land lease being mortgaged did not consent to the mortgage.
      9. Monetary judgment against borrower is sufficient remedy especially if foreclosure will result in a family being homeless.
      10. Minimum bid listed in Notice of Foreclosure Sale is much less than fair market value of land and home.