Couple Heads Off Foreclosure by Fighting Back

A New Jersey couple fought a lender's foreclosure proceedings and ended up being able to keep their home. George Elghossain and his wife, Mona, successfully defended against a mortgage loan servicer that tried to foreclose on their 4-bedroom home. The April 4 court decision set a precedent for other homeowners in the state who now should be able to cite this case for having their own foreclosures dismissed.

Elghossain of North Brunswick, N.J., a real estate broker who raised four children in the bi-level home, pictured left, used his industry knowledge to fight his case in court without a lawyer after he noticed that the servicer of the loan that sent him the notice of intent to foreclose was not the lender that owned his loan.

"When I got the foreclosure complaint I found out the people suing me was not the people I had been paying. Now I had issues with am I paying the right party, and paying the right bank," Elghossain told AOL Real Estate. "So naturally I didn't continue payments, even though I could've made the payment."

By New Jersey state law, the homeowner is suppose to be notified of various items, including the name of the lender that owns the loan and its contact information.

In its paperwork, loan servicer Bank of America failed to include the names of the lender and the lender's representative in its notice of intent to foreclose, Search Homes for Sale See photos of homes for sale in your area and across the country on AOL Real Estate thus violating New Jersey's Fair Foreclosure Act, which was enacted in 1995 and has been updated several times.

"The Fair Foreclosure Act is clear, unambiguous, and readily comprehensibly (especially to a sophisticated lender)," according to the opinion written by Judge Glenn Berman of Middlesex County.

Bank of America wanted the judge to expand the meaning of who is a lender so that it would include any "mortgage lender, mortgage investor or mortgage loan servicer that owns ... or is authorized to negotiate the terms of the homeowner's mortgage." Berman said the bank's argument "is misplaced."

Elghossain purchased the home in 1985 and with his wife and refinanced it in 2004 with a local bank called New Millenium Bank for $260,000 at a 6.25 percent interest rate for 30 years. Zillow currently estimates that the home is worth about $295,000, down from a peak of about $485,000 in 2008.

About a month after Elghossain refinanced, New Millenium sold the loan to Countrywide Document Custody Services, which shortly transferred it to Countrywide Home Loans, Inc. Countrywide sold it to the Bank of New York, but maintained a servicing agreement, which was recorded on December 7, 2006. When Countrywide was purchased by Bank of America, BofA became the servicer, but Bank of New York remained the holder of the mortgage.

Bank of New York was one of 24 lenders to file 200 or more foreclosure actions in New Jersey in 2010, reported the New Jersey Law Journal.

"Homeowners in New Jersey don't contest their foreclosures, and they should," said the 50-something-year-old Elghossain. "With all the forgery and fraud, people should contest their foreclosures. That's my advice. If they can't do it themselves, they should consult an attorney to make sure the lenders have complied with the rules."

Elghossain, who was last with Weichert Realty before becoming his own broker with GME Realty, says the financial downturn in the industry took its toll on his business. In November 2009, he missed a payment on his mortgage and he received the intent to foreclose about 30 days later.

"Before Bank of America filed its lawsuit, I wrote them a certified letter saying I'd like to start making my payments again. Instead of taking that with open arms, they never responded and they filed for foreclosure."

Although the family, with two kids still living at home, are still holding on to the property, Bank of America still has the right to come back and serve the Elghossains with a proper notice of intent to foreclose.

For others facing similarly situations, Elghossain repeats, "Fight your foreclosures. New Jersey law gives you a lot of protection. People say the courts are biased, but that's not my experience." And to buyers of foreclosures, this former real estate instructor says, "Make sure the bank has the right title, or else you'll be facing previous homeowners who find out they still have rights to the title."



Sheree R. Curry
, who has owned three homes and once had a Wells Fargo mortgage, is a three-time award-winning journalist who has covered real estate for six years. During her 20-year career, her articles have appeared regularly in the
Wall Street Journal, TV Week, and Fortune. She's been writing for AOL Real Estate since 2009 from a Minneapolis-area rental. She seeks a book publisher -- or at least a lender who'll give a reasonable mortgage rate to a self-employed mom.

For more on mortgages and related topics see these AOL Real Estate guides:

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nikonj

There are a lot of laws to protect the homeowner, but the homeowner must be proactive and challenge the foreclosure. 732-580-2174 for more info

April 20 2011 at 9:27 AM Report abuse rate up rate down Reply
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April 16 2011 at 11:07 PM Report abuse rate up rate down Reply
sweetlips

I forgot anything when my condo had a flood and needed completely redone Paid 65 AND COST 45 TO REDONE
COST ME 15 THOUSAND i WAS UNDER INSURED.
AFTER REDONE I WAS OFFERED $170. I WENT FOR REVERSIVE MORTGAGE AND WAS BEST THING I HADE DONE. I LOVED MY PLACE AND WAS ABLE TO LIVE THREW THE LOSTS IN THE MARKET WHERE I COUCOULD HAVE BOUGHT A NEW CAR OR TOOK MANY TRIPS. NOW MY HOME IS WORTH 55 AND STILL LOOKS GOOD TAKING GOOD CARE OF IT. I LOVE TO HAVE IT CLEANED LIKE CARPETS, COUCHS AND
UPKEEP WITH GOOD HOME CLEANERS TWICE A MONTH. I LOVED THE REVERSIVE IT WAS THE BEAT TIME TO GET TOP DOLLAR AND NO PAYBACK. I LIVE HERE UNTIL I AM 100. THEN WHO CARES?

April 15 2011 at 8:05 PM Report abuse rate up rate down Reply
Kelly

How do you go about finding out if your bank has/holds your title?

April 15 2011 at 3:07 PM Report abuse rate up rate down Reply
usapaydirt

A mortgage is a contract between you and your lender. Since the buyer has a large vested interest in the property, the contract should not be allowed to be traded or sold , without the borrowers signature as well -!!

April 15 2011 at 6:59 AM Report abuse rate up rate down Reply
none

In my opinion, the bank should appeal to a higher court, and these people should NOT get to keep the home without making proper payments. I'd like to know if the judge who decided the case is a Liberal.

April 15 2011 at 6:57 AM Report abuse rate up rate down Reply
signedoff51

"My client didn't make his loan payments as required by law your honor"...but..."the bank made a clerical error, so my client should not have to make any more payments"....Obama and the liberals have created an entitlement mentality.....ME ME ME!!!!!!!

April 15 2011 at 6:47 AM Report abuse +1 rate up rate down Reply
1 reply to signedoff51's comment
macdaknif1

How is this different than criminals getting away with robbery, rape and murder on a daily basis, due to a technical error on the part of the police or courts????

April 15 2011 at 1:40 PM Report abuse +1 rate up rate down Reply
stablesem

nice story, but he still defaulted on his loan. Just another short sighted homeowner. Why did homeowners insist on draining all their equity with refinancing? Cars, vacations, second homes, remodeling, etc.
All poor reasons. The bubble burst and now its time to pay.

April 15 2011 at 6:28 AM Report abuse rate up rate down Reply
My first screen

This guy wants something for nothing. In my book he is not an honest person. We all have to pay for his home.

April 15 2011 at 6:18 AM Report abuse +1 rate up rate down Reply
1 reply to My first screen's comment
macdaknif1

If an individual makes a mistake you can bet the business involved is going to make sure the individual pays dearly. Why should it be any different when the shoe is on the other foot and the business is the one who makes the mistake. Nine times out of ten the business has dozens of lawyers looking out for their interest, while the individual is on their own, or at best has a Realtor on their side.

April 15 2011 at 1:46 PM Report abuse +1 rate up rate down Reply