Legal Terms Glossary
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A-PAPER LOANS -Loans meeting standard Fannie Mae and Freddie Mac underwriting guidelines.
ACCELERATION -The exercise of the clause contained within a mortgage that gives the lender the right to declare the remainder of the loan amount due, prior to the natural maturity date of the loan, in the event of borrower default.
ADVANCES -Monies paid from the servicer's funds for real estate taxes, property insurance premiums, and other expenses necessary to protect the mortgagee's interests under the mortgage.
AFFIDAVIT - A written statement made under oath before an officer of the court or notary public.
ASSIGNMENT -The transfer of the ownership of the mortgage or security interest from one party to another. The term "assignment" generally does not refer to the transfer of ownership of real property, which is usually accomplished by Deed.
ATTORNEY-CLIENT PRIVILEGE - Communications between an attorney and client within the realm of legal confidentiality.
AUTOMATIC STAY - A bankruptcy provision that stops any act that can be construed to be an act against the interests of the debtor or the debtor's property.
BANKRUPTCY -Federal law allowing debtors a respite from various creditor activities, and permitting debtors a fresh start.
BENEFICIARY -A person who receives or is to receive the benefits resulting from certain acts. The lender in a deed of trust relationship.
BID -An offering of money in exhange for the property placed for sale.
BREACH LETTERS -Also known as the 30-day cure
letter. This opportunity allowing the borrower to pay the amount
in default (plus appropriate costs and fees) is required in the
widely used Fannie Mae/Freddie Mac form of mortgage.
CERTIFICATE OF FORECLOSURE (Connecticut Only) - A document found on the land records which is evidence that a foreclosure has been completed and the mortgagee now owns the property.
CHAPTER 7 - Individual or business liquidation under Federal Bankruptcy Code.
CHAPTER 11 - Business reorganization under the Federal Bankruptcy Code.
CHAPTER 12 - Reorganization for farmers under the Federal Bankruptcy Code.
CHAPTER 13 - Relief available under the Federal Bankruptcy Code in which a debtor retains possession of his property while making payments to creditors under a court approved plan.
CLASS ACTION - A lawsuit brought on behalf of a group of similarly situated individuals with a similar complaint or claim.
COLLATERAL ESTOPPEL - Prior judgment from a lawsuit between parties on a different cause of action that bars re-litigation of those matters in a subsequent lawsuit.
COMMITTEE OF SALE (Connecticut Only) - An attorney appointed by the Court to conduct the auction of the mortgaged property in a foreclosure action.
COMMON LAW - As distinguished from law created by legislatures (statutory law), the common law is that law which is founded in ancient customs and practices as interpreted by the Courts.
COMPLAINT -The original or initial pleadings by which an action is commenced in a judicial action such as a judicial foreclosure.
CONDOMINIUM -A form of ownership of real property whereby a purchaser receives title to a particular unit and a proportionate interest in common areas.
CONFIRMATION HEARING (BANKRUPTCY) - A hearing where the Debtors proposed Chapter 13 plan is reviewed and either approved or denied by the Bankruptcy Judge.
CONFIRMATION HEARING (FORECLOSURE) - A hearing where the Sheriff's Sale is confirmed and title is transferred to the successful bidder from the sale.
CONFIRMATION OF BANKRUPTCY PLAN - A Bankruptcy Court order which approves a debtor's plan to pay the debts owed to his/her/their creditors as of the date of the filing of the bankruptcy petition. In some jurisdictions, Confirmation may be referred to as "Ratification."
CONSENT JUDGMENT - A judgment entered by a court that a defendat agrees to, hence the term "consent" judgment. Often used in the context of a defendant agreeing to refrain from a certain action or activity, while not admitting wrongdoing or guilt.
CONSTRUCTIVE NOTICE OR SERVICE -If one by exercise of reasonable care would have known a fact, he is deemed to have recieved notice. Notice with which a person is charged by reason of the notorious nature the thing to be noticed, as contrasted with the actual receipt of notice of such thing.
CONTESTED FORECLOSURE -A foreclosure action that a defaulted borrower has disputed for some reason.
CO-OP (COOPERATIVE APARTMENT) -Also called a stock cooperative. A two or more unit structure in which the right to occupy is governed by purchase of shares in the corporation owning the building.
COUNTERCLAIM - A claim presented in a pending lawsuit by a defendant against plaintiff in opposition to, or deduction from, plaintiff's claim.
CRAM DOWN - The effect of certain provisions of the Bankruptcy code which allow the debtor to avoid the unsecured portion of an under secured claim when the under secured claim is not secured solely by the debtor's principal residence. (Also known as LIEN STRIPPING)
CREDIT FILE -Lender's records containing the signed original loan documents, e.g., loan application, promissory note and deed of trust.
CREDIT REPORTING - The reporting by a creditor to a national and/or local credit reporting agency of a borrower's past and current inability (ability) to pay credit obligations.
CROSS-CLAIM - A claim in a pending lawsuit by a defendant against another defendant.D
DEBTOR -Person who files a bankruptcy petition.
DECLARATION -Sworn written form of testimony setting forth statements of fact.
DEED -A written document used to convey one's interest in real propery to another.
DEED-IN-LIEU OF FORECLOSURE - The voluntary conveyance of the property from the borrower to the lender in lieu of foreclosure. The advantage for the lender is the cost of acquisition is less than a foreclosure and title is gained faster. The advantage for the borrower is he avoids a foreclosure and potential deficiency judgement.
DEED OF TRUST -A type of security instrument wherein the borrower conveys title to a third party (trustee) to be held in trust as security fo rthe note.
DEFAULT -A breach or nonperformance of the terms of the note or the covenants of the security instrument. A loan is generally considered in monetary default the day two payments become due and unpaid, e.g., a monthly payment due January 1 is considered in default if not paid by February 1.
DEFAULT JUDGMENT - Judgment entered in a lawsuit when a defendant has failed to enter a plea or otherwise defend himself.
DEFENDANT - Any person or entity that is being sued.
DEFICIENCY-Amount for which the borrower is personally liable on a note and mortgage if the proceeds of a foreclosure sale do not pay off the entire debt.
DEPOSITION - A form of oral discovery under oath, outside of open court, where the testimony of a witness is taken. This testimony may be used in a later trial and/or is obtained in the course of discovering facts and information. The peron being deposed is called the deponent.
DISCOVERY - Procedure where one side seeks information concerning the basis of the other side's claims and/or defenses in a contested case prior to trial. Discovery is governed by local and/or state and federal rules.
DISMISSAL WITH PREJUDICE - In the bankruptcy court, a court order dismissing the bankruptcy case with an order prohibiting the debtor from filing another bankruptcy until the expiration of some specified time. In a non-bankruptcy matter, the dismissal of an action without the right to raise those issues again.
DOCKET - A list of cases and their status on a court's calendar.
DRAGNET CLAUSE - A mortgage provision where more than one property is pledged as collateral, potentially also encompassing newly acquired property owned by the borrower. Generally, a default on one mortgage constitutes a default on the mortgage with the dragnet clause.
DRUG FORFEITURE -Property seizures resulting from the violation of certain laws regarding controlled substances.
ECF - Electronic Case Filing.
ENCUMBRANCE -A claim, lien, or liability attached to and binding real property such as a junior lien, a judgement, easement, or a mechanic's lien.
EQUITABLE - Just; conformable to the principles of justice and right.
ESCROW ACCOUNT - An account established and managed for the benefit of the homewoner such as a T&I (tax and insurance) account established for the collection of escrow deposits and the eventual payment of taxes and insurance amounts when they become due. Escrow accounts are governed by statutory law, the loan instruments and RESPA.
ESTOPPEL - A party prevented by his own acts from claiming a right to the detriment of a second party, when the second party did some act in reliance on the first party's acts. An estoppel arises when one is forbidden by law to speak against his own act or deed.
EVICTION -The legal process to obtain a court order forcibly removing an occupant from a property. Also known as ejectment or an unlawful detainer proceeding in some jurisdictions.
EVICTION ACTION - A court action to obtain possession of premises by the person entitled to actual possession (also may be known as Forcible Entry and Detainer).
FAIR CREDIT REPORTING ACT - A federal law regulating the activities of consumer reporting agencies (CRAs), users of credit reports prepared by those agencies and providers of information to the agencies.
FAIR DEBT COLLECTION PRACTICES ACT ( F.D.C.P.A. ) - A federal act which provides the ground rules for communication with a consumer debtor and prescribes the manner in which debts may be collected.
FED - Forcible Entry and Detainer. A court action to obtain possession of premises by the person entitled to actual possession (also may be known as an Eviction Action).
FHLMC (Federal Home Loan Mortgage Corp.) - A stock-holder owned corporation (Also called "Freddie Mac") established by Congress that supplies funds to mortgage lenders. Mortgages funded by Freddie Mac must comply with their selling and servicing requirements.
FNMA (Federal National Mortgage Assn.) - A stock-holder owned corporation (Also called "Fannie Mae") established by Congress that supplies funds to mortgage lenders. Mortgages funded by Fannie Mae must comply with their selling and servicing requirements.
FORBEARANCE AGREEMENT -The act of refraining from taking legal action despite the fact a default has occurred. A delay in enforcing one's rights. Various types of forbearance include liquidating plan, specified forbearance and temporary indulgence.
FORECLOSURE -A legal procedure by which mortgaged property is sold upon default in order to satisfy the debt. Foreclosures are generally governed by state law and vary from state to state. The two most common types of foreclosure are judicial and power of sale.
GNMA (Government National Mortgage Assn.) - A government agency (also called "Ginnie Mae") within the Department of Housing and Urban Development (HUD).
HOLDER IN DUE COURSE - A term that describes a person or other legal entity (such as a financial institution) who "holds" or owns a negotiable instrument (usually a check or promissory note) but is not the original payee of the instrument. As such, the "holder" may not be subject to some claims or defenses that might be raised against the original payee by the maker of the instrument (such as the borrower).
HUD (Department of Housing & Urban Dev't) - A government agency established to create opportunities for affordable housing for Americans. The Federal Housing Administration (FHA), which insures loans to individuals who might other wise be unable to obtain mortgage financing, is a part of HUD.
INDEBTEDNESS -The unpaid principal and interest plus any other amounts allowable under the terms of the loan including those sums authorized by statute.
INDEMNIFICATION - Provides for the obligation by one party to make good the loss or damage another party has incurred or may incur. Typically, the conduct of the indemnifying party is primarily responsible for the loss.
INJUNCTION - A writ or order issued under the seal of a court restraining one or more parties from proceeding with an action. The filing of a bankruptcy is accompanied by an automatic injunction (automatic stay) restraining the lender from pursuing collection actions against the bankrupt borrower.
IN REM - A term used to describe actions against one's property only, distinguished from personal actions which are said to be "in personam".
IN PERSONAM - A term used to designate proceedings or actions against a person and/or that person's possessions.
INVESTOR & AGENCY TIME FRAMES -Established optimum time frames within which investors and agencies (e.g. Fannie Mae, Freddie Mac, HUD and VA) expect a foreclosure to be completed.
JOURNAL ENTRY OF JUDGMENT - The final ruling of the court on issues presented. A written record of the findings and decisions of the court.
JUDGEMENT -The final decision of the court resolving a dispute and determining the rights, liabilites and obligations for the parties of a lawsuit.
JUDICIAL FORECLOSURE - A foreclosure filed as a formal lawsuit in a state court. A typical procedure involves filing a complaint, personal notice to the interested parties, entry of a judgment, sale of the property, and confirmation of the sale by the Court. However, the process varies from state to state and is sometimes combined with a non-judicial foreclosure process (see related definition)
JURISDICTION - Power of a court to take action against a person or business entity. Also, power or authority of a court to adjudicate the subject matter of a case.
LACHES - Failure to make a claim or file an action timely. This is often used as a defense (i.e. you waited too long to file this action; therefore, your case should be dismissed).
LAW DAY (Connecticut Only) - The last day for the mortgagor or other junior lien holder to redeem the foreclosing mortgagee's debt. If all the law days assigned pass without a redemption, the foreclosing mortgagee will own the property and will record a Certificate of Foreclosure.
LEGAL DESCRIPTION - Identification of real property acceptable to regulatory and judicial bodies.
LEGAL SERVICES AGREEMENT - A written contract between the attorney and the client delineating the scope of the representation, compensation requirements, and other components of the attorney-client relationship.
LIEN -A legal hold or claim of one person on the propety of another as security for a debt or charge. The right given by law to satisfy debt.
LIEN STRIPPING - Used to describe the effect of certain provisions of the Bankruptcy Code which allow the debtor to avoid the unsecured portion of an under secured claim when the under secured claims is not secured solely by the debtor's principal residence (also known as a CRAM DOWN).
LIS PENDENS NOTICE - A notice filed on public records for the purpose of warning all persons that the title to certain property is in litigation and that they are in danger of being bound by an adverse Judgment.
LONG ARM STATUTES - Laws which permit courts to acquire personal jurisdiction over non-residents by virtue of activity within the state.
LOSS MITIGATION -Activites designed to reduce the likelihood of foreclosure or the amount of the loss associated with a foreclosure. Typical forms of loss mitigation include interest rate reduction loan modifications, forbearance plans, and loan term extensions.
MANUFACTURED HOUSING - Also referred to as Mobile Homes. Whether this type of home is real (house) or personal (vehicle) property largely depends upon state law.
MECHANIC'S/CONTRACTOR'S LIEN - A claim created by a contractor or subcontractor when a builder or homeowner fails to make payment for work done in building or repairing a property. State laws govern these liens, but they can have priority over previously recorded liens. The holder of a mortgage or deed of trust cannot foreclose until mechanics' liens have been satisfied.
MERS - Mortgage Electronic Registration System, which was created to eliminate the need to prepare and record assignments when transferring mortgage loans.
MORTGAGE - A conveyance of an interest in real property given as security for the payment of a debt. A two-party agreement between the mortgagor (borrower) and the mortgagee (lender). In some states a mortgage acts as a conveyance of title.
MORTGAGE INSURANCE (MI) - Insurance coverage designed to fully orpartially insure the lender in the event of a loss subsequet to a default by the borrower. Mortgage insurance premiums are generally paid by the borrower.
MORTGAGEE - The one receiving a mortgage (usually a financial institution). The lender.
MORTGAGEE POLICY - Shows where the mortgage is recorded and provides the legal description of the real property. It is also useful in the event there ar title problems.
MORTGAGOR - The one granting a mortgage on his or her property. The borrower.
MOTION REQUESTING RELIEF FROM STAY - A pleading filed in a bankruptcy case wherein the creditor requests that its collateral be removed from the automatic stay imposed by the bankruptcy filing.
MOTION TO DISMISS - A pleading which requests that the case be dismissed prior to the trial.
MOTION TO STRIKE - Request by either party for the court to order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent or scandalous matter.
NEGOTIABLE INSTRUMENT - A document that meets the requirements set out in the Uniform Commercial Code (see UCC) Section 3-104. Specifically, it must be a writing signed by the maker or drawer; it must contain an unconditional promise or order to pay a sum certain in money; it must be payable on demand or at a definite time; it must be payable to the bearer or to order; and, it must not contain any other promise, order, obligation, or power given by the maker or drawer except as authorized.
NON-JUDICIAL FORECLOSURE - A foreclosure which does not involve filing an action in a state court. A typical procedure involves notice to the interested parties (either by personal service or an alternate method such as publication )and sale of the property. The court provides no overview of the process unless petitioned by the mortgagor. However, the process varies from state to state and is sometimes combined with a judicial foreclosure process (see related definition).
NOTE - A document evidencing the borrower's promise to pay, also known as a promissory note.
NOTICE BY PUBLICATION - The process of serving defendants who cannot be located through publication in the newspaper. Specific legislation controls whom and how a defendant can be served by such publication.
NOTICE OF DEFAULT (NOD) - (1) A notice recorded after the occurrence of a default under the deed of trust or mortgage or note. (2) A notice required by the investor or agency to be given to report a default in the terms of the agreement.
NOTICE OF INTENTION TO FORECLOSE (NOI) - Declares the lender's intentions to commence a liquidation action.
"ONE-FORM-OF-ACTION" RULE -An election of remedies statute enacted in some states that limits or prohibits a mortgagee from seeking a monetary recovery against the borrower after a foreclosure. In some jurisdictions, this can also mean that if a foreclosure was begun, it has to be discontinued before a new one can be started.
PAYOFF - Satisfaction of a debt in full as opposed to bringing it current.
PAYOFF REQUEST - Request for the total amount owing on an existing loan.
PETITION/COMPLAINT - A formal written request filed with the court requesting that something specific be done.
PLAINTIFF - A person or entity filing a lawsuit.
PLEADINGS - The formal allegations by the parties of their respective claims and defenses as presented to the court for a ruling.
POWER OF ATTORNEY - A written document authorizing a person to act as the agent on behalf of another to the extent indicated in the writing.
POWER OF SALE - A clause found in a mortgage or deed of trust that grants the lender the power, upon default by the borrower, to advertise and sell the property at public auction without first obtaining authorization from the court. Power of sale foreclosures must be complete within the constraints of governing state law.
PREDATORY LENDING - Abusive practices by some sub-prime lenders that are typically directed toward unsophisticated borrowers with blemished credit.
PRINCIPAL PAYMENT - A payment that is applied entirely to the principal balance of the loan.
PROMISSORY NOTE - A document evidencing the borrower's promise to pay.
PROOF OF CLAIM - An official signed statement filed in bankruptcy court by a creditor which sets forth the amont the debtor owed the creditor as of the date the bankruptcy was filed.
PUD - Planned Unit Development.
QUIET TITLE - A proceeding to establish a plaintiff's title to land by bringing into court an adverse claimant and compelling him to either establish his claim or be permanently stopped from asserting it.
QUIT CLAIM DEED - A transfer of title in which the present title holder passes any interest or claim he or she has in a property but without professing that such title is valid nor containing any warranty or covenants for title.
RATIFICATION - Required process in some jurisdictions where the creditor seeks to have a foreclosure sale ratified or affirmed by the court.
RATIFICATION OF BANKRUPTCY PLAN - See Confirmation of Bankruptcy Plan.
REAL ESTATE SETTLEMENT PRACTICES ACT (RESPA) - Federal statute containing certain requirements that apply to servicers, including those addressing Qualified Written Requests (QWRs).
RECORD/RECORDATION - Real property laws providing for the giving of constructive notice by publishing the existence of interests in local land records. Statutes generally allow the recording of deeds, mortgages, judgments, and mechanic's liens.
REDEEM - The act of paying off a mortgage debt during a foreclosure suit so as to rid the property of that encumbrance.
REDEMPTION PERIOD - The time allowed by law in some states during which a mortgagor may redeem or buy back its property by paying the amount owed on a foreclosed mortgage, including interest, costs, and fees.
REFERRAL - In a default servicing context, the transfer of the file to an attorney for action.
REINSTATE - The payment of money sufficient to cure all amounts past due including reasonable fees and costs incurred as a result of a default on a loan.
RELIEF FROM STAY - An Order of the Bankruptcy Court granting a creditor the right to proceed with certain actions (for example, forecosure) that could otherwise constitute a violation of the automatic stay.
REO - Real Estate Owned. Refers to the real property that the lender acquires after a foreclosure sale.
REPRESENTATION AGREEMENT - A written contract between the attorney and the client delineating the scope of the representation, compensation requirements and other components of the attorney-client relationship.
RES JUDICATA - A rule which states that once a claim has been decided by the court, a person cannot bring another action based upon that same claim.
RESCISSION - To rescind or cancel or terminate a contract.
SALE AFFIRMATION - See Ratification
SALE CONFIRMATION - See Ratification
SATISFACTION OF MORTGAGE - The recordable instrument that evidences payment in full of the mortgage debt.
SERVICE OF PROCESS - The delivery of writs, summonses, etc. to the party to whom or with whom they ought to be delivered or left.
SERVICEMEMBERS CIVIL RELIEF ACT (amended in 2003, and formerly known as the SOLDIERS' AND SAILORS' CIVIL RELIEF ACT) - Among other protections, the act delays civil court cases for active duty military personnel if military responsibilities prevent them from exercising their legal rights.
SHERIFF'S DEED - The deed given by the sheriff that tranfers ownership to the buyer at the foreclosure sale.
SHERIFF'S SALE - The public auction at which the property being foreclosed is offered for sale.
SHORT PAYOFF - Where a mortgagee agrees to accept less than the total payoff amount in full satisfaction of the mortgage.
SHORT SALE - A workout program where the lender accepts less than the full payoff amount due from the borrower.
SPECIAL DEFENSE - Facts which are consistent with the allegations of the plaintiff's complaint but show, not withstanding, that the plaintiff has no cause of action. Some examples of special defenses in collection and foreclosure cases are payment, improper acceleration of the loan, statute of limitations and anything that would attack the making, validity or enforcement of the note and mortgage.
STATUS REPORT - The report of the status of an open file, which usually identifies the loan, provides a history of milestones and projected dates for remaining milestones, and notes regarding any irregularities.
STAY - A order of the court whereby some action is forbidden until some event occurs or until the court lifts its order.
SUB-PRIME LOAN - Any loan that is not an "A-Paper" loan.
SUMMARY JUDGMENT - A judgment obtained upon motion by any party on a claim, counterclaim or cross claim when there is no genuine issue of material fact that would prevail as a matter of law. The motion may be directed toward all or part of the claim or defense and may be made on the basis of the pleadings or other portions of the record in the case or it may be supported by affidavit and a variety of outside material.
SUMMONS - A notice to a party in a law suit requiring said party to appear in court or have a judgment rendered against him for failing to do so.
SUPER LIEN OR PRIORITY - A comdominium or homeowners association lien for unpaid assessments that has priority over the first mortgage. States permitting super liens are referred to as super lien states.
TAX LIEN - A lien for nonpayment of property taxes that attaches to the real property.
TAX SALE - Sale by government authority of property for nonpayment of property taxes.
TIME FRAME (OR TIMELINE) - Guidelines of Fannie Mae and Freddie Mac, for example, specifying the acceptable number of days to complete a foreclosure or other legal action.
TITLE INSURANCE - Insurance against financial loss resulting from a title defect.
TITLE REPORT - Report stating the condition of title, usually obtained prior to a sale or other transaction.
TITLE SEARCH - A review of public records to determine the identity of parties having an interest in a property and the existence and nature of claims outstanding against a property.
TRUSTEE - A party who holds title to a property for the benefit of others. In a deed of trust relationship the trustee holds title for the benefit of the trustor (borrower) and the beneficiary (lender). In the case of a bankruptcy, the trustee is an individual appointed by the bankruptcy court to administer the debtor's case. The trustee in generally a private citizen. There is a trustee in all Chapter 7, 12, and 13 cases. A trustee is appointed in some Chapter 11 cases.
TRUSTOR - The borrower in a deed of trust relationship.
TRUTH IN LENDING ACT (TILA) - A federal law that requires that a person applying for credit be given understandable information with regard to interest rates. It may also apply in instances where an existing loan is modified and the debt is increased or the interest rate is changed.
TSG - Trustee Sale Guarantee, or Trustee Sale Guaranty.
UCC (Uniform Commercial Code) - The laws that govern various commercial transactions.
U-CCC (Uniform Consumer Credit) - A guide that states may or may not use to further simplify the understanding of all aspects of credit and credit transactions.
VA (Department of Veterans Affairs) - A government agency established to guarantee loans to finance real estate.
VALIDATION NOTICE - Generally means the written notice from a debt collector to a borrower that is required by the FDCPA at 15 U.S.C. § 1692(g).
VENUE - The particular county, or geographical area, in which a court with jurisdiction may hear and determine a case.
WARRANTY DEED - Deed in which a grantor warrants the status of the title.
WASTE - Negligently or intentionally caused damage to property, which is committed by one in lawful possession -as contrasted with trespass.
WORKOUT - An alternative action to prevent a foreclosure for the benefit of the lender and the borrower. Includes loan modifications, short sales, and various forms of forbearance.
WRIT OF ASSISTANCE - A court order directed to the sheriff (or other local official) ordering him to "assist" a party to a pending lawsuit (such as a bank in an eviction action) in obtaining the relief previously granted to the party by the court. An example would be a sheriff assisting a foreclosure sale purchaser in taking possession of the property after foreclosure.
WRIT OF EXECUTION - An order of the court in which a party is granted authority to seize assets of the defendant to satisfy its judgment.
WRIT OF POSSESSION - A writ employed to enforce
a judgement to recover possession of land. It commands the sheriff
to enter the property for the purpose of transferring possession to the
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