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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
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Experience:  Began practicing law in 1992
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Are you aware of the Judge Panel Foreclosures in Multnomah

Customer Question

Are you aware of the Judge Panel for Judicial Foreclosures in Multnomah County requiring the lender to honor the terms of mediation that allowed them to receive a Certificate of Compliance for the state's Foreclosure Avoidance Program? In my case, they were to complete a Deed in lieu, with cash-for-keys, but it required negotiating with the 2nd, who is Chase. However, NationStar failed to work out the deal, while Chase was willing. If this failed for any reason, then I agreed to do a short-sale, but they refused that opportunity, and they just refuse to speak to me or my housing counselor. So planning to do the Ex Parte hearing option to plead for a motion to delay the process to allow me to try a short-sale. I qualify for pro-bono rep. with the Oregon Bar, but they are short on available lawyers, and none will offer time on demanding the mediation agreement is honored, by charging NationStar with Bad Faith. They can only help homeowners save their homes, but I am at least $120K underwater, and not working full-time (in grad school), so makes no sense to save. Thanks for your help.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

I noticed no one had picked up on your question. I am about to sign off for the evening but can assist tomorrow.

However, I don't see a specific question, just what seems to be a rhetorical one and so I need to know with what specific question you need assistance? Please be as specific as possible.

Customer: replied 1 year ago.
Hello, I am wanting to know if there is any evidence of judges in Multnomah Co. or any county in Oregon requiring that the lender follow the terms laid out during a mediation hearing to earn a Certificate of Compliance, which is required by state law to proceed with a judicial foreclosure? Which helps me to be prepared for my Ex Parte (required for civil cased in Multnomah County) hearing this Friday. My lender has provided no details as to why they will not be able to proceed with a deed in lieu of foreclosure or a pre-approved short sale, as was agreed to. They just refuse to communicate with me or my housing counselor, so without a lawyer and not knowing how to properly present a case, I will be asking the presiding judge for a 90 extension of time with my motion to try stop their plans to file a default, which will happen after 11/27, since I was served with their 10-day notice of "Intent" to proceed. However, they can only take that next step, with a valid Certificate of Compliance, and mine expires on 12/8/15 (Chapter 88.010). So I am assuming, that if I can get past that date, then this will force them to back into the state required mediation program for a new Certificate, and then maybe this next time, they will act in good faith, so I can exercise the rights offered to me with Oregon's Foreclosure Avoidance Program, and HAFA.I just don't know if I have a good chance, and I don't really know how write up the Proposed Order correctly, so the Judge will sign it on Friday? The attorney I was assigned to by the Oregon Bar for a free 30 min. consult, could offer no specific details on if the Judges will work with people not trying to save their home from foreclosure with a modification for example, but with those that want to avoid that final step with the other alternatives that are allowed by law? The desire to stay in a home takes a priority, for the three that do pro-bono work, so they have never taken on the latter, and the Oregon Atty. General's office is overwhelmed with an array of compliance issues, but they only focus on those that want to stay in their homes, so in essence the law designed to help others, has been a bust!We didn't try a pre-approved short-sale first, although I offered that route of the deed in lieu failed, since they have to negotiate a buy-out on my 2nd lien with Chase, who in the past have given verbal agreements to the terms acceptable to Fannie Mae. So I want Nationstar to be required to grant me the short-sale option, if there is a clear reason as to why the deed in lieu won't work to their benefit, but they originally picked that option.It is super stressful going through the Foreclosure process (a moving target on move-out date), and no guarantee there will be a cash-for-keys option. And under Oregon law, I cannot vacate before the sale date has passed, or I can be sued for a deficiency judgment, and I am still responsible for my condo dues, which are $400/month. Since there is a 6 month waiting period for a Right of Redemption, it may not sell to a new party, and just be taken back by the lender, and then sometimes they are canceled at the last minute, but by law I am supposed to vacate by the sale date. But I don't trust Nationstar (they have lied so many times), so I believe they will be difficult to deal with and will not keep any promises they make on a possible cash-for-keys in that case, if I stay for short-time afterwards, so they can avoid eviction. While the other two options take a smaller hit on my credit rating, and help me to have some control over how and when I leave my property, which also helps with dealing with the added stress of grad school as I plan my move, and try to find a new job to cover higher cost of rent.I hope this all makes sense? Judicial Foreclosures are somewhat new in Oregon, so it has been hard to get good direction or find any clear answers for what has been published, and my housing counselor just seems to be fighting a losing battle going on these past 2 years with Nationstar. I have read that there can be some value in selling the Right of Redemption. This might turn into a positive benefit, if I allow them to proceed, since Chase is part of the Judicial Foreclosure for that 2nd lien. So with that debt gone, along with the likelihood that Condo prices in my location might go up in the next 6 months (the value may depend on the outcome of the April trial for the lawsuit that our association has against the plumbing contractor/supplier-reason they picked the deed in lieu Dec. 2014), then I might gain a higher return, than the cash-for-keys settlement. But even with that unpredictable option, I would still need an attorney to help with that process, if there is a cash buyer ready to go?Thanks for looking this over and I look forward to gaining some valuable knowledge, to have more confidence in presenting my case on Friday afternoon. Have a nice Thanksgiving, Linda
Expert:  Dwayne B. replied 1 year ago.

I'm a little confused by your question and facts and maybe you can help clear it up.

Anytime there is a settlement agreement reached at mediation then it would be enforceable by a judge as a contract. If there was no agreement reached at mediation then there is nothing for the judge to enforce.

There really is no way to answer as to how to write the order since it depends on exactly what the agreement was that was reached. As to the hearing on Friday, if you reached a settlement at mediation then I'm not sure what your hearing would be about. Normally, an ex parte hearing wouldn't be conducted if you have already been in a mediation in which another party appeared.

I need you to explain the issue regarding the mediation, whether or not a settlement was reached and, if so, what is the purpose of the hearing coming up and why is it an ex parte?

Customer: replied 1 year ago.
Hello, I have to leave in a few minutes for Thanksgiving dinner with my family. I have to go to an Ex Parte hearing to have my motion heard and then hopefully accepted for a 90-day extension to try and work out the original terms of mediation, that's how the system works. So far there is no proof that anyone is using these Certificate of Compliance to stop or delay a pending foreclosure. If they file their Default before 12/8, and I don't challenge it, with a possible issue of 'bad faith," then they can proceed without much delay, and the sheriff's sale would probably be about 6-8 weeks from that Default being applied. The required mediation in Oregon was about agreeing on a plan to avoid foreclosure, whether loan mod, short-sale or deed in lieu. I was never allowed the opportunity to technically get through the process due to unexplained failures of Nationstar. It was supposed to be a deed in lieu, with short-sale as a fall back option, if Chase changed their minds and would not cooperate, but I have nothing from them to prove that this happened, just silence. It actually took Nationstar 7 months to even submit their first offer, which was about 2 1/2 months after they had filed the Judicial Foreclosure, but there was no evidence of any follow-up done after that. The judge may enforce this or may not, but I have no idea if I will be presenting the case correctly, and I have to arrive with an already prepared Proposed Order. The attorney I worked work with gave me no clue as to any expectation, and said just give it at try and see what happens? But if I screw up the paperwork, then I could make things worse and not better. I also don't know if their attorney will show up the day after the holiday, to explain why they feel they have the right to not comply with the mediation agreement, and if that will help or not? Thanks again, Linda
Expert:  Dwayne B. replied 1 year ago.

I'm still not following, you state that your hearing is to ask for an extension to try and work out an agreement and then later you state they are not complying with the mediation agreement.

Did you actually go to a mediation where there was a mediator and the other party?

If so, did you reach an agreement at that mediation?

If so, did the mediator write up the basics of the agreement and have both of you sign off on it?

Customer: replied 1 year ago.
Hello, Below are the terms of Oregon's law on Judicial Foreclosures:
88.010 Foreclosure of lien by suit; judgment for amount of debt; other remedies; requirements
for complaint in proceeding to foreclose residential trust deed; stay. (1) Except as otherwise provided
by law, a lien upon real or personal property, other than that of a judgment, whether created by mortgage
or otherwise, must be foreclosed, and the property adjudged to be sold to satisfy the debt the lien secures,
by bringing suit. Except as provided in ORS 88.103, in addition to the judgment of foreclosure and sale,
if the lien debtor or another person, as principal or otherwise, has given a promissory note or other
personal obligation for the payment of the debt, the court also shall enter a judgment for the amount of
the debt against the lien debtor or other person. The provisions of this chapter as to liens upon personal
property do not exclude a person that has a lien from any other remedy or right that the person otherwise
has with respect to the property.
(2)(a) A complaint in a suit to foreclose a residential trust deed under this section must include as an
attachment a true copy of:
(A) A valid and unexpired certificate of compliance that a service provider issued to a beneficiary
under ORS 86.736; [THIS IS PART OF MY DEFENSE, AS I WILL USE IT TO DEMONSTRATE BAD FAITH ON THE PART OF NATIONSTAR.]The above "Certificate of Compliance" was issued on 12/8/2014, and per the agreement the lender was to follow the Fannie Mae guidelines for a "deed in lieu" of foreclosure, and there is no evidence that they complied, as there is no evidence of there being any active negotiations with Chase to clear the 2nd lien, other than me faxing Nationstar's offer to Chase last June to start the negotiations, and my authorization to Chase to discuss my loan with Nationstar. Chase completes these payoffs with Nationstar and with other 1st lien holders on a regular basis, so a "deed in lieu" can be processed, which then allows for the next options of cash-for-keys and a negotiated move-out time.Nationstar never did anything else after June, and they filed Judicial Foreclosure papers on 4/14/2015, without even presenting an offer to Chase. Their one and only offer to Chase submitted back in June, came after my housing counselor complained about their Foreclosure actions, but then they no longer communicated with him after than or with me as to the status. If lenders are allowed to avoid applying any due diligence to match their medication agreements, then the Foreclosure Avoidance Program for Oregon Laws 2013, Chapter 304, sections 2,3 and 4, would be of no value.If I don't stop them before 12/8/15, then I will be forced out with the Judicial Foreclosure, and they can get away with not complying with the terms discussed in mediation. If I stop them, then they are required to go back into mediation to get a new Certificate of Compliance (this takes 6 months to a year, so a huge help to me financially as I finish grad school). Maybe the next time around, they will act in good faith, and I can make sure other safety-nets are put in place to make sure it will happen, as the mediator was too lenient in her approval of their plan, by stating to me that I have to trust they will comply, and she was wrong.I have no idea how to sway the judge, since I don't know of similar cases like mine, where the intent that was attached to the Certificate is used to get an extension motion accepted, which will also terminate the Foreclosure process at the same time in my case, since we are so close to the deadline. If I don't respond at all, then they will win by default, and I lose all chances of controlling the outcome and gaining at least $3000 for moving expenses, and a 30 day move out time.I really don't know what else to say, but not having a lawyer from Oregon might be making this too hard, as we have these new laws that were added in 2013 to try and slow down the Foreclosure stampede to stabilize the real estate market, and to give home owners some viable options for exit strategies, if that becomes the best alternative. Prior to then, all lenders did non-judicial Foreclosures for several decades.Thanks so much, Linda
Expert:  Dwayne B. replied 1 year ago.

I'm familiar with both judicial and non-judicial foreclosures. The Oregon laws are really not that much different than other states and is an attempt by Oregon to get more in line with what most states do and, in addition, achieve the other goals you mention.

I'm also somewhat familiar with the mediation issues in Oregon. However, what I'm not understanding is what happened in your specific case because you appear to be using terms and concepts that contradict each other.

You state "they can get away with not complying with the terms discussed in mediation".

Just discussing something in mediation doesn't do anything at all. If you reached a specific agreement in mediation then it would be enforceable and you would enforce it by way of a Motion to Enforce Mediated Agreement, asking the court to order them to abide by the agreed upon terms. However, if you didn't actually reach an agreement then the mediation can't be enforced because there is nothing to enforce.

Also, I'm not sure why this is an ex parte proceeding and I need you to explain why it is ex parte. An "ex parte proceeding" is one in which only one party is involved. Normally this (an ex parte proceeding) is only done in emergency situations and not when there is sufficient time to notify the other side of the hearing and allow them to take part. If an order is granted ex parte and without a good reason such as an emergency situation then a court of appeals is likely to reverse it because it is a denial of due process.

Can you explain these particular issues?

I am just about to go offline but will be back on in the morning and we can discuss it further.

Customer: replied 1 year ago.
Hello,Per the clerk, in order for a judge to consider my Motion for an extension of time to try and work through the original mediation terms, I have to go to an Ex Parte hearing, as they will not put my Motion request into a hearing schedule for anyone on the Judicial Foreclosure panel to hear my arguments, nor will they even give it to a judge to review. I am only required to give no less than 24 hours notice of my plans to go to the hearing, and they were served that notice on Tues. afternoon. However, even if it is just me, I must take a Proposed Order to that hearing, outlining what I want the judge to accept for the terms of my motion. I don't know if they will sign it at the time, or schedule an actual hearing to do an more in-depth review, or if he will just deny my request, by not giving much weight to the terms of agreement that match to the Certificate of Compliance agreement. However, if I don't try to stop them by tomorrow, then they have the right to file their Default, as the 10 days notice will have then passed. And if they do, and they will, since the Certificate is about to expire, then at that point, I can no longer challenge the lawsuit. The other issue that I can't anticipate, would be the subjectivity that a judge might assign to what is an act of "good faith" to show there was due diligence on Nationstar's part, as there is nothing in writing that stipulates the exact steps that a lender must take to do all they can to complete a Deed in Lieu, as the mediator just wrote "per Fannie Mae guidelines." Those guidelines aren't of public knowledge, and we don't know how or when they change, or if Fannie Mae even got involved in the process? All I have to offer is the recent email from my HUD approved housing counselor that explains my hard efforts and Nationstar not providing any explanation as to why they failed to complete the Deed in Lieu.Well I hope that might help some, but I am out of time and I must prepare all of my documents, without any experience or any idea what to put into the Proposed Order, and then try and figure out what kind of evidence the judge will want to see in the short time I will be given? The goal is to stop their default filing to make sure we get passed the 12/8/15 deadline, which forces them to go back into mediation, as they will have to get a new Certificate of Compliance. Thanks, Linda
Expert:  Dwayne B. replied 1 year ago.

I'm sorry, I'm going to have to opt out and open this back up to the other experts. I understand the process that you have to go through in Oregon and Multnomah County for people in your situation but your facts aren't matching what I understand happens. Maybe someone else can resolve the inconsistencies.

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