Reversing (Voiding) Foreclosure Sales in Bankruptcy

  1. Foreclosures Can Not Be Reversed in Bankruptcy as a Fraudulent Conveyance
  2. The Growing Trend – Completed Foreclosure Sales Can Be Voided (Reversed) as an Unlawful Preference
  3. Requirements for Establishing an Avoidable Preference 

(a) Transfer of property

(b) Existing creditor

(c) Antecedent debt

(d) Homeowner must be insolvent

(e) Bankruptcy Filed within 90 Days After Foreclosure Sale

(f) Property Value Must Exceed Payoff Balance Owed to Foreclosing Creditor

(g) Bankruptcy Filed Before Lender Sells the Property to Bona Fide Purchaser

  1. Do you qualify for a voided foreclosure claim through bankruptcy?
  2. Foreclosures Can Not Be Reversed In Bankruptcy as a Fraudulent Conveyance

Until recently, most bankruptcy attorneys (including the author of this article) were of the opinion that a bankruptcy filing can not be used to reverse (or void) a completed foreclosure sale unless the foreclosing creditor failed to strictly follow the foreclosure process required by Texas state law. This rule applies regardless of the price paid by the foreclosing creditor or third party at the foreclosure sale. The rule was reinforced by the U.S. Supreme Court case of BFP v. Resolution Trust Corp. , 511 U.S. 531 (1994), which ruled that the amount paid by a foreclosing lender or third party purchaser at a foreclosure sale is per se “reasonably equivalent value” so long as state law foreclosure procedures were followed. As a result, a bankruptcy court can not reverse a foreclosure sale as a fraudulent conveyance under Bankruptcy Code § 548 so long as the sale was conducted in accordance with state law.

  1. The Growing Trend – Completed Foreclosure Sales Can Be Voided (Reversed) as an Unlawful Preference

A growing line of case authority supports the view that the bankruptcy preference rules contained in Bankruptcy Code § 547 may be an overlooked tool that will now permit the Bankruptcy Court to avoid (void, undo or reverse) a procedurally valid foreclosure sale under limited circumstances. Initially, this view not accepted. Court opinions issued in the following cases rejected the legal theory that a foreclosure sale could be reserved on the basis that it was a preference. Ehring, 900 F.2d 184 (9th Cir. 1990), 900 F.2d 184 (9th Cir. 1990); FIBSA Forwarding, Inc., 244 B.R. 94 (S.D. Tex. 1999); Chase Manhattan Bank v. Pulcini, 261 B.R. 836 (Bankr. W.D. Pa. 2001).

However, the legal theory that a properly conducted foreclosure sale can be avoided as an unlawful preference has gained acceptance in recent years. It is now the majority view in the published opinions. Court opinions issued in the following cases now support the theory that a foreclosure sale can be reversed as a preference in a bankruptcy case. Norwest Bank Minn., N.A. v. Andrews, 262 B.R. 299 (Bankr. M.D. Pa. 2001); Rambo v. Chase Manhattan Mortg. Corp., 297 B.R. 418 (Bankr. E.D. Pa. 2003); Villarreal v. Showalter, 413 B.R. 633 (Bankr. S.D. Tex. 2009) (Isgur); Whittle Dev., Inc. v. Branch Banking Trust Co., 463 B.R. 796 (Bankr. N.D. Tex. 2011) (Hale); Nguyen v. Wells Fargo Home Mortg., 2013 Bankr. LEXIS 1605 (Bankr. S.D. Tex. 2013) (Isgur); Berley Assocs. v. Eckert, 2013 Bankr. LEXIS 2025 (Bankr. N.J. 2013) (Kaplan). The view that a prepetition foreclosure sale can be voided as a preference has also been adopted by at least one of the five bankruptcy judges in the Houston Division of the Southern District of Texas.

  1. Requirements for Establishing an Avoidable Preference

A homeowner must establish the following elements of proof to reverse a foreclosure sale as a preference.

(a) Transfer of property

The first element of proof needed to establish a voidable preference is that a “transfer” of the homeowner’s property took place. In the Fifth Circuit (which includes all Houston bankruptcy courts), a non-judicial foreclosure sale constitutes a “transfer” of a homeowner’s interest in the property. Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980). Therefore, the issuance of a deed to the buyer at a foreclosure sale will automatically satisfy the first element of a preference – that a “transfer” took place.

Some early bankruptcy court opinions outside of the Fifth Circuit held that a foreclosure sale was not a transfer of a property interest of a homeowner. One such case was Madrid, 725 F.2d 1197 (9th Cir. 1984), where the court ruled that there was no transfer at the time of the foreclosure sale and that the only relevant transfer occurred when the creditor recorded the mortgage in the real property records (normally a few days after the homeowner originally buys the property). The Madrid opinion agreed with other preference cases which found that the enforcement of a mortgage within 90 days before a bankruptcy filing could not be struck down as a preference where the mortgage lien was recorded outside the 90 day look back period.

However, the bankruptcy code definition of the word “transfer” was amended in 1984 to define the “foreclosure of the debtor’s equity of redemption” as a transfer. Since this amendment, there has been no doubt in any bankruptcy court that a foreclosure sale constitutes a “transfer” of a homeowner’s property and will be considered a preference if the other legal elements of a preference are satisfied. Ehring, 900 F.2d 184 (9th Cir. 1990).

(b) Existing creditor

The second element of proof needed to establish a preference is that the property was transferred to an existing creditor of the property owner. In other words, the buyer at the foreclosure sale must be a creditor of the homeowner on the date the bankruptcy case is filed.

As a practical matter, this requirement limits the ability to avoid a foreclose sale as a preference to cases where the mortgage lender is the successful bidder at the sale. A foreclosure sale that results in the property being sold to a third party can not be reversed in bankruptcy as a preference because the third party is almost never a pre-existing creditor of the homeowner.

It is very common for the foreclosing lender to make a credit bid for some or all of the debt owed to it. The requirement that the foreclosure sale result in a transfer of the property back to the lender will be met in the overwhelming majority of Texas foreclosure sales. At least 90 percent of all houses sold at a Texas foreclosure sale are deeded back to the lender that conducted the sale rather than being sold to a third party.

(c) Antecedent debt

The third requirement to establish an unlawful preference is that the foreclosure sale must be motivated by an attempt to collect an “antecedent debt.” An antecedent debt is a debt owed by the property owner to the foreclosing creditor before the foreclosure sale was held.

This requirement will be automatically met in almost all residential home foreclosure sales. In most foreclosure situations, the home serves as collateral to secure repayment of a loan obtained to buy the house. A homeowner’s failure to pay the loan is the normal motive for a lender to foreclose. The antecedent debt requirement will almost always be met if a homeowner’s failure to pay a mortgage loan is the reason for the lender’s attempt to foreclose.

Although not common, a lender or other creditor can attempt to foreclose due to non-monetary defaults such as: (i) a failure to maintain insurance, (ii) a failure to pay property taxes, or (iii) deed restriction violations. Almost all mortgage loan documents require the property owner to pay taxes and keep the property insured and permit the lender to foreclose if the homeowner defaults on these non-monetary obligations. A foreclosure sale conducted due to these types of defaults cannot be reversed as a preference because the foreclosure sale was not based on a failure to pay an antecedent debt.

Example #1: Homeowner obtains a $100,000 mortgage loan to purchase a house which he uses as a personal residence. Payments of principal and interest are $800 per month. There is no escrow account to collect a monthly reserve for the insurance or property taxes. The loan documents contain a standard clause requiring Homeowner to pay property taxes when due and keep the house insured.

Homeowner fails to buy insurance or pay property taxes. Lender posts the house for a foreclosure sale solely because of Homeowner’s failure to pay taxes or obtain insurance. Homeowner was current on all mortgage payments on the foreclosure sale date. Lender buys the house at the sale.

Homeowner files for bankruptcy and attempts to void the foreclosure sale as a preference. Homeowner will lose because the foreclosure sale was motivated by Homeowner’s non-monetary default of failing to obtain insurance or pay taxes, not as a result of a failure to pay an antecedent debt.

(d) Insolvency

The fourth requirement to establish a voidable preference is that the homeowner was insolvent when the foreclosure sale was conducted. The test for insolvency is a balance sheet test – whether the homeowner’s debts exceeded the value of his non-exempt property on the foreclosure sale date. The property owner is presumed to be insolvent at all times within the 90 days before the bankruptcy is filed. The lender or other creditor will have the burden to prove that the homeowner is not insolvent.

The insolvency test will be easily satisfied in most situations unless the homeowner owns a business or other valuable non-exempt (legally sizable) assets. The bankruptcy code definition of insolvency specifically excludes all exempt assets (assets legally protected from seizure). However, the law does not exclude loans collateralized by exempt assets in calculating whether debts are greater than the value of the homeowner’s assets. It is very unusual for a property owner to have non-exempt assets that exceed the amount of his debts when the debts include loans collateralized by exempt assets such as houses and cars.

Example #2: Homeowner has the following debts and property on the date Lender forecloses on his house for failing to pay the mortgage debt:

Assets
Description Value Loan Amnt Equity Exempt Counted Amnt
House 200,000 180,000 20,000 yes 0
2 Cars 40,000 35,000 5,000 yes 0
Furniture 15,000 0 15,000 yes 0
Clothes 4,000 0 4,000 yes 0
Jewelry 7,500 0 7,500 yes 0
Stocks 200,000 0 200,000 no 200,000
Total Assets 200,000        
           
Liabilities Amnt Owed        
Home Mortgage 180,000        
Car Loans 35,000        
Credit Card Debt 5,000        
Medical Bills 5,000        
Total Liabilities 225,000        

Result: Homeowner is considered insolvent regardless of the fact that he owns $200,000 of non-exempt stock.

(e) Bankruptcy Must Be Filed within 90 Days After Foreclosure Sale

The fifth requirement to establish an unlawful preference is that the bankruptcy case must be filed within 90 days after foreclosure sale date. A homeowner will not be able to reverse the sale as a preference if he waits to file a bankruptcy case for more than 90 days after the foreclosure sale date.

(f) Property Value Must Exceed Payoff Balance Owed to Foreclosing Creditor

The sixth element of proof required to void a foreclosure sale as a preference is the most important. The homeowner must establish that the sale back to the creditor will enable the foreclosing creditor to receive more value for the house than it would receive if the property was sold by a trustee in a hypothetical Chapter 7 bankruptcy case.

A chapter 7 trustee is permitted to sell property in a relaxed, unforced sale, at fair market value. Therefore, this requirement essentially means that the foreclosure sale can be avoided as a preference if the payoff balance owed to the foreclosing creditor is less than the fair market value of the house on the foreclosure sale date. A foreclosing lender (except for a small private company or an individual) will never bid more at a foreclosure sale than the payoff balance due on the loan. Therefore, put another way, a foreclosure can be reversed as a preference only if the homeowner has some equity in the property – only if the market value of the house is more than the payoff balance due on the first mortgage loan.

(g) Bankruptcy Must Be Filed Before Lender Sells the Property to a Bona Fide Purchaser

This final consideration is whether the property has been sold to a bona fide purchaser. A foreclosure sale can not be voided a as a preference if the foreclosing lender sells the house to a bona fie purchaser after the foreclosure sale but before the bankruptcy case is filed. In this situation, a bona fide purchaser would be a third party, without knowledge that the transfer could be avoided as a preference who pays value for the home. In this context, the payment of “value” means a transfer of valuable property, or the satisfaction of an antecedent debt owed by the third party to the foreclosing creditor.

The preference claim is not completely defeated if the foreclosed property is sold to a bona fide purchaser. The homeowner can still recover damages from the foreclosing creditor measured by the difference between the payoff balance due on the loan owed to the foreclosing creditor and the fair market value of the foreclosed home. However, the original homeowner would not be able to recover the house from the bona fide purchaser (the third party that bought the house from the foreclosing creditor).

  1. Do you qualify for a voided foreclosure claim through bankruptcy?

Evaluate your claim if your real property has been foreclosed upon and you meet the following requirements:

(a) the foreclosing creditor was a mortgage lender, homeowner’s association or state taxing jurisdiction;

(b) less than 90 days have passed since the date of the foreclosure sale; and

(c) you had equity in the property on the foreclose date – the fair market value of the property on the foreclosure sale date was more than the payoff balance due on the loan or other debt owed to the foreclosing creditor.

Originally posted on WeberLaw.com

DVD Recording of CFLA STATE BAR APPROVED MCLE Bankruptcy Practice

ITEM #0011

March 31, 2012 | Las Vegas, NV

MCLE 6 hrs Nevada, California*

Course No. 5734A1-VR1

Presenters: Charles W. Christmas, Jr., Esq.

Arun Gupta, Esq. and Charles Powell, Esq

Being offered because of popular demand to those unable to travel/attend our March 31, 2012 event in Las Vegas, NV.

Seminar Testimonials

“If you are interested in knowing what is happening to your mortgage or in helping others, this is a course that will insure you know what you are talking about before and after viewing documents.” William K.

“I loved the knowledge I acquired and recommend the course to everyone. The more “we the people” get knowledge the better our odds of beating the banks at their game!” Dawn D.

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“This class will change the direction of your life as a professional. It offers a gateway into the world of securitization and inherently valuable navigation tools to uncover the lack of integrity being performed in secondary investor trusts. This class is for anyone, but highly benefits professionals of foreclosure proceedings. Thank you CFLA! Thank ” Michal V.

“My expectations were exceeded. I have been a Real Estate professional since 1993 and have simply followed guidelines established. This course has opened my eyes to all the reasons of ‘why’.” Michael B.

“CFLA is one of the only business entities offering a one-stop shop where an attorney can get education, pleadings, research and practice support in the field of foreclosure defense. The attorney networking opportunities provided by CFLA are very valuable.” Charles C.

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“Although I have prior experience of 20 years of Mortgage Banking and Real Estate, this class has given me a comprehensive edge over the average attorney and ultimate foreclosure defense! Thank you for taking me to the top.” Kartika K.

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Litigating attorneys who are interested in partnering with bankruptcy attorneys to assist in challenging mortgages on behalf of homeowners

Homeowners who are interested in becoming educated on more of the issues and strategies involved in successfully challenging mortgages

Friends of Homeowners and members of the general public who desire to have a better understanding of the mortgage meltdown that has occurred in our country and how it can be effectively resolved to accomplish justice within our legal system

Paralegals, secretaries, and legal assistants who work for any of the above listed attorneys or are otherwise independent

Anyone who is performing audits for any of the above listed attorneys

Course Outline

Introduction to the Seminar and the Current State of the Mortgage Crisis

Background on How the Mortgage Crisis Occurred to Understand the

Solutions

Difficulties with Past and Current Approaches to Civil Mortgage

Litigation

Why Bankruptcy is the Legal Forum of Choice for Mortgage Litigation

Practical Requirements for Bankruptcy Mortgage Litigation

Surviving and Defeating the Motion to Lift Stay of Foreclosure Sale

Finding the Evidence to Win in Bankruptcy

Preparing for the Adversarial Hearing in Bankruptcy

The Adversarial Hearing in Bankruptcy

Quiet Title and the Importance of Res Judicata post Bankruptcy

Course Schedule

Instruction times will be strictly enforced for CLE compliance.

8:30 – 9:00 am – Coffee, Mixer, Registration and Welcome

This is an important time to renew old acquaintances, make new acquaintances, and examine various educational materials that will be available. The contacts that you make during this time will be valuable to you for the purpose of referrals and questions to other colleagues in the future.

Remember, in the field of Foreclosure Defense and Mortgage Litigation, the usual rules of competition and market share do not apply. In this field of law practice the prevailing rules are cooperation and collaboration because of the huge need that continues to be driven by the large number of homeowners who are in need of legal assistance to solve their particular mortgage situation.

9:00 – 10:30 am – Introduction and Current Overview of Mortgages 2001-2012. Review of Securitization and Mortgage Operations (90 minutes credit.)

Here we will examine some of the more recent cases, articles, court rulings, and legislation that have affected and continue to affect this field of law practice. What are the recent developments in various states such as Illinois, New York, Florida, California, and other states. Come prepared to give input on some of the latest court and legislative happenings in your state.

What about Nevada Assembly Bill 284? What is the current state of Mortgage

Mediation in Nevada?

10:30 – 10:45 am – Break for 15 minutes

10:45 – 12:15 pm – Difficulties with Civil Litigation and Finding the Legal Forum of Choice for Mortgage Litigation. Meeting the Practical Requirements for Debt Relief. (90 minutes credit)

We will look at the types of cases that have been filed in the civil courts, both State and Federal. We will talk about the results of those cases and the Judiciary and their approach to these cases. Most importantly we will address why they have taken the approach they have. To be truly successful in court litigation the successful attorney needs to understand where the judiciary is coming from in their approach and why.

We will address the Federal Bankruptcy Courts and why they are considered by many to be the legal forum of choice for both foreclosure defense and mortgage litigation for those many clients who are not facing a loss of their home, but are significantly upside down in value in relation to the amount of debt on their property. The prospects are that most of that value will not return anytime in the near or even distant future. Consequently, steps have to be taken now to address this situation. In December of 2012 the exemption for 1099 income tax from mortgage forgiveness will disappear. It is important that homeowners begin to take action now before it is too late.

It is important to fully understand how bankruptcy works, and what are the requirements for the client to take advantage of the protection and relief that is available in the Federal Bankruptcy system.

We will discuss an overview of bankruptcy in terms of which debts can be discharged and which debts cannot be discharged. We will help you determine if Bankruptcy is the right solution for your client.

We will discuss the Automatic Stay. We will speak about whether your client is eligible for Bankruptcy, and the requirements for Chapter 7 and the requirements for Chapter 13. How and when does Chapter 11 fit into the picture? We will look at the effect of prior bankruptcies, debt limits, income taxes, child support, and alimony payments.

We will discuss formulating your client’s Payment Plan, and the necessity for a

Financial Management Course.

What is the Means Test, and how does your client pass this test? We will review the Bankruptcy Forms, how they are filed and the meeting with the Creditors.

We will reveal the strategies to win in the Bankruptcy forum.

12:15 – 1:45 pm – Lunch Break

Please use the lunch period as a time of valuable continued networking among your colleagues for future business opportunities and support.

Again, also use this time to examine the additional education materials provided by CFLA.

1:45 – 3:15 pm – Surviving Motion to Dismiss or Lift Stay, and Finding the Evidence to Win (90 minutes credit)

You can be assured that the Creditor of your client will make a Motion to lift the Automatic Stay in order for them to continue efforts to sell your client’s property. How do you defeat the motion of your opponent?

How do the Securitization Audit and the Bloomberg Findings help you in your case? What can you do if you are unable to find the mortgage note in a mortgage backed securities trust? Are there other arguments to make?

3:15 – 3:30 pm – Break

3:30 – 5:00 pm – Preparing for Evidentiary Hearings and Adversarial Proceedings and Subsequent Quiet Title. Business Model for Foreclosure Defense & Mortgage Litigation (90 minutes credit)

What should be included in your motions for both the Evidentiary Hearing and the Adversarial Proceeding? How are these two events different from each other, and what purpose do they accomplish. What should you have as your goal to defeat the claims of the purported creditor?

How Bankruptcy findings support res judicata in civil actions Refer to CFLA’s book and DVD on Quiet Title.

Open discussion on business models for foreclosure defense and mortgage litigation in Bankruptcy. Bring your best ideas to share.

5:00 – 5:30 pm – Paperwork and Closing Comments (30 minutes, no credit)

Total Time for Credit: 360 minutes. 5 hours currently approved and application for 6 hours credit has been submitted.

 

 

What if you could wipe out your mortgage in a bankruptcy and still keep your home? 

You may be able to use a little know bankruptcy technique to get clear and free title to your home, and become debt free at the same time! 

Some savvy real estate investors got free properties by listing them as unsecured debt on schedule F in chapter 7 bankruptcy filings to eliminate the entire mortgage debt and walk away with clear and free title to the property.

Filing for bankruptcy can stop a foreclosure sale and or eviction, and if you do it right, could result in you getting 100% clear and free title to your home, and your mortgage totally wiped out too!

According to a University of Iowa Legal Research Study nearly 40% of the bankruptcy cases that involved foreclosures, creditors couldn’t produce the original loan documents when asked.

By the way, is how some savvy investors got properties for free, by listing them on Schedule F, as unsecured using bankruptcy rule 3001.

When “lenders” or mortgage companies would challenge this claim, the investors would simple say show me the note… and when the bank couldn’t, BINGO another free house.

Unfortunately for the average American homeowner the good old bankruptcy boys club has made it  find a lawyer to help you use this technique to getting clear and free title to your home.

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