However, the suit must still be based on an act of default within the five-year statute of limitations period. 133 (S.D.N.Y. Sepehry-Fard v. Bank of N.Y. Mellon, H039493, 9 (Cal. Va. Jun. v. Peyton,261 Va. 142, 154 (2001). Specifically, one of Deutsche Bank's witnesses testified that it had standing because "[t]he loan was entered into the trust shortly after origination, and we also have business records that show that they were in possession of the note." CORP. 558 So.2d 430 (1990) https://www.leagle.com/decision/1990988558so2d4301857. 2008-Ohio-5759, 8: "A cognovit note contains provisions designed to cut off defenses available to a debtor in the event of default. 2103.041. https://www.nolo.com/legal-encyclopedia/what-pooling-servicing-agreement-psa-the-mortgage-industry.html, With respect to the interplay between assignments and pooling and servicing agreements, homeowners lack standing to enforce the terms of a pooling and servicing agreement to challenge an underlying assignment because noncompliance with a pooling and servicing agreement does not render an assignment void. Delaware) v. 236 Beltway Inv., 865 F. Supp. Because of this, courts also require the plaintiff show it has rights to enforce the note in order to prevail under the first count of the foreclosure lawsuit. Written by Attorney Troy Doucet (http: //www.doucet.law). 2009). With regard to those principles, a material breach of a land sale contract by a party will prevent that party from obtaining strict foreclosure of the contract and excuse the other party's obligation to perform. 401, 867 A.2d 841 (Conn. App. Rptr. ], https://law.justia.com/cases/california/court-of-appeal/2d/118/410.html. Must contain warning from 2323.13(D) to be enforceable: "Warning -- By signing this paper you give up your right to notice and court trial. Read this article. GARVEY v. SETERUS, INC. Case No. HomEq told plaintiff he had to sign the latest loan modification agreement or face foreclosure. This Court fails to understand why State Farm did not present this evidence initially in response to Plaintiff's suggestion that a sheriff's sale had occurred. The appeal court believed that the motion to dismiss should have been granted due to the failure to join the indispensable party. See, also, Canan v. Heffey (1927), 27 Ohio App. R. BANKR. Vista Management v. Cooper,81 Or. For instance, the servicer must contact you soon after you fall behind in mortgage payments to discuss alternatives to foreclosure and can't dual-track your loan, among other things. Predatory lenders convince borrowers to get loans they don't need or can't afford. Co.,948 F.3d 31, 35 (1st Cir. Miles v. Deutsche Bank Nat'l Trust Co., 186 Cal. Hamrick v. Safe Auto Ins. 12, 2014) https://casetext.com/case/martin-v-litton-loan-servicing-lp. 3d 47 (Cal. After defaulting on the loan, Harrison received a letter from U.S. Bank dated April 2, 2011, stating that he must cure the default by May 2, 2011, or risk acceleration and foreclosure. 11-md-02290-RGS https://www.leagle.com/decision/inadvfdco130327000116, Generally, a claim for promissory estoppel can arise where "a party reasonably relies on a statement of another and materially changes his position in reliance on that statement." Typically, in a judicial foreclosure, the loan owner must complete an affidavit of indebtedness (also known as an "affidavit of amounts due") to get a final judgment of foreclosure. The Chapter 7 bankruptcy will also cancel any debt secured by your home, including the debt of junior mortgages or home equity loans. S.D.N.Y. If there is a failure to mitigate damages, the plaintiff cannot be compensated for the damages that could have been avoided by such efforts.[2]. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other cause. * * * An attorney, whom the note holder may designate, appears on behalf of the debtor and, pursuant to provisions of the cognovit note, confesses judgment and waives the debtor's right to notice of the proceedings. Under the Truth in Lending Act (TILA), a borrower must receive notice of a mortgage's transfer to a new owner or assignee within 30 days. 145 (Bankr. The foreclosing party can't prove it owns the loan (it lacks ". Jul. "Waiveris the intentional relinquishment or abandonment of a known right or privilege . Had HCTA accepted the check and applied it in the order prescribed by section 5655(a), the amount of delinquent assessments would have been less than $1,800. In re Hays (C.A.6, 1910), 181 F. 674, 679. R. 9(C) states, "In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. Ct. App. There was no appeal of the confirmation order. Further, for this court to reverse such a finding of fact, there must be a lack of substantial evidence to support the finding. If the servicer doesnt comply with your request, you can sue under RESPA. 243 (Bankr. 2001); see also LaFosse v. Champagne, 2000 ME 81, 750 A.2d 1254. Co. 10th Dist. The book includes: legal letters, forms, motions, an "Answer" to the lawsuit, and sample discovery to get damaging information directly from the bank. Consistent with the policies underlying theBankruptcyCode and the express language of 7 C.F.R. You might be able to sue for money damages or even void your loan. See Chakford v. Strum, 87 So.2d 419 (Fla. 1956); Manchester Insurance Indemnity Co. v. Novack, 284 So.2d 433 (Fla. 3d DCA 1973). * * * This is so because, under a cognovit note, the debtor consents in advance to the holder obtaining a judgment without notice or hearing. When it comes to important decisions, relying on accurate information is essential. Thus, a plaintiff needs to prove a breach of contract in order to prevail. 220 Cal.App.4th 915 (2013) https://www.leagle.com/decision/incaco20131022033. Co., 115 Ohio App.3d 137, 144, 684 N.E.2d 1261 (9th Dist.1996), citing Garofalo v. Chicago Title Ins. Taylor v. First Resolution Invest. Format: Paperback. (Compl. From mid-October to mid-November when Chemical Realty knew that the building was not going to be completed on the due date and the permanent commitment was lost, Chemical Realty paid to the defendant $560,732.54, a sum that would reasonably lead the defendant to believe that the loan was continued in full force and effect. Int'l, L.L.P. Say you could have afforded $5,000 but not $7,500. When the holder of a deed of trust does not fulfill the condition precedent, the holder does not have the right to accelerate payment or to foreclose on the property. See Krystal Cadillac-Oldsmobile GMC Truck,337 F.3d at 324. Instead, an assignment in contravention of a pooling and servicing agreement is merely voidable. The law places no requirement on you to do any of those things. A lawsuit cannot proceed without proper service of process. Meritor also maintained "Mortgage Premises Index Cards" consistently describing the mortgagor as the "236 Beltway Investment Limited Partnership, a Virginia Limited Partnership with Joseph M. Della Ratta and John C. Webb as general partners without personal liability." In agreeing that Whitburn had no standing, the court relied on the well-established principle "when property is purchased during a pending foreclosure action in which a lis pendens has been filed, the purchaser generally is not entitledto intervene in the pending foreclosure action." See also Smith's Lessee v. Hunt, 13 Ohio 260, 269 (1844) (holding that court was unable to infer name of grantor when acknowledgment was blank as to the grantor and, thus, the mortgage was defective and did not convey title); Cala, 2008 WL 2001761 at *6 ("In order to properly certify an acknowledgment, the notary must provide some indication that the party actually appeared."). App.-Austin 1984, writ ref'd n.r.e.) Shahar v. Green Tree Servicing LLC, 125 So. You can send the servicer a request for information to look for problems regarding loan ownership and possession of the relevant contract documents. Judgement in the foreclosure action favored the bank, the mortgages were foreclosed, a sheriffs sale was ordered, and the Bank purchased the property. Moreover, if Smith had received notice prior to the initial filing of the complaint, as required by 41 Pa.Stat.Ann. The Registration Statement filed by Meritor on December 10, 1987 states repeatedly that all of the loans in the pool are non-recourse. If the lender is pursuing a foreclosure in court, you can challenge this judicial foreclosure proceeding by responding to the lenders complaint. If you spot an issue, depending on state law, you might be able to challenge the bank's authority to foreclose. The bankruptcy court found that Isaacs' case was fundamentally similar to Hamilton the debtor obtained a discharge of her debt to the Mortgagee and later a state court re-imposed personal liability upon her by enforcing a mortgage that could have attached only to a discharged debt and therefore was an act to collect on that discharged debt. 62 at 6-7.) R. 9(C). (c)(1).) Monetary v. Pluchino, 87 Conn. App. 1808 ). If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. Mar. If it's the bank's fault that you fell into foreclosure in the first place, then they don't have clean hands and aren't entitled to an equitable remedy. 2103.02, "[a] spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage." Corp., 569 F.3d 606, 613 (6th Cir. (Doc. To resolve a motion to dismiss for insufficiency of process, the court "must look to matters outside the complaint to determine what steps, if any, the plaintiff took to effect service. Pro. Ct. 2018) https://casetext.com/case/us-bank-na-v-stibolt, 3709 N. Flagler Drive Prodigy Land Trust, Mango Homes LLC v. Bank of Am., N.A., 226 So. Learn the Foreclosure Process in Your State. 3:10-232. https://www.leagle.com/decision/infdco20140304d81, Judicial Estoppel, also known asCollateralestoppel, The doctrine of judicial estoppel generally bars a party from asserting a legal position contrary to an earlier position in the same or related litigation. 2001)https://casetext.com/case/associates-home-equity-services-v-troup As stated, what the Troups seek is a diminishment of the amount due based on Associates' violation of statutory fair housing and civil rights laws. You might be able to rescind the mortgage transaction or be entitled to damages (money) or a setoff against the amount you owe on the loan. Fast and free shipping free returns cash on delivery available on eligible purchase. The Rules permit service upon a competent adult by leaving a copy of it "at the individuals dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . " M.R. CO.(November 19, 1992)Court of Appeals of Texas, Corpus Christi. This would result in the record incorrectly stating that you have missed payments, which might lead to a foreclosure. In order for a trial court to grant a motion to dismiss for failure to state a claim upon which relief may be granted, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." In that case, however, the North Carolina Supreme Court held that the doctrines do not apply in their "traditional" sense in that once the clerk or trial court denies authorization for aforeclosuresale, a creditor may not seek a non-judicial foreclosurebased on the same default. State laws that prohibit predatory lending. Schlenk,2016 WL 6836945, at *3. Foreclosure Defense: Failure to Mitigate Damages. 19-12394-FDS. How would someone spot this failure in their own situation? 2014), https://casetext.com/case/sykes-v-rbs-citizens-1, Sykes alleges that he received a notice of default dated December 8, 2008, and that he received a notice of acceleration and a notice of foreclosure. steering (pushing a borrower into taking out a risky, high-cost loan, even when they have good credit and should qualify for a low-cost. A valid special defense at law to a foreclosure proceeding must belegally sufficient and address the making, validity or enforcement of the mortgage, the note or both. "Appellee could not prevail on the claims assigned by the bank without proving the existence of a valid assignment agreement." What is the specific rule for it from the caselaw for the foreclosure defense called Failure to Mitigate Damages? Or, if the CFPB thinks that another government agency would be better able to help you, it will forward your complaint to that agency and let you know. By: 23 Legal Defenses to Foreclosure Mich. 2014) https://casetext.com/case/fed-natl-mortg-assn-v-royal-manor-apartments-llc, RESPA provides that when the servicer of a loan changes, the borrower is entitled to notice. Please share this webpage with others by linking to it! For a better shopping experience, please upgrade now. Situations where cognovit judgments have been vacated: o Cognovit judgment against corporate officer in individual capacity (not against the corporation), o Transaction underlying cognovit judgment was actually a consumer transaction, o Amount of cognovit judgment exceeded amount due on instrument, o Creditor/agent had told guarantor that guarantor was not personally liable for debt (fraud in inducement). This rise in the number of successful defenses to foreclosure is due, in large part, to the unearthing of evidence that mistakes and noncompliance in the mortgage servicing industry have been widespread for years. Do Not Sell or Share My Personal Information, Key Aspects of State Foreclosure Law: 50-State Chart, Foreclosure of Rental & Investment Property, See All Foreclosure Laws Products from Nolo, Do Not Sell or Share My Personal Information. See Greater Hous. Filing a Complaint Against Your Servicer With the Consumer Financial Protection Bureau. v.Sadler Clinic Ass'n, P.A.,384 S.W.3d 875, 888-89 (Tex. 3d 194, 195 (Fla. Dist. App. Further, "[a] material breach is a failure to do something that is so fundamental to the contract that the failure to perform that obligation defeats an essential purpose of the contract." 2:08-CV-11091 (E.D. The 10th District described dowery interests as follows: Pursuant to R.C. INS. 3d 46 (Fla. Dist. First National maintains, based on its reading of the relevant statute, that by choosing the last option, Fireman's Fund's debt was extinguished at the time of the foreclosure sale because it had fully satisfied its debt as a matter of law. If you want to learn about possible ways to avoid a foreclosure, like with a loan modification, short sale, or deed in lieu of foreclosure, consider also talking to a HUD-approved housing counselor. (5) A reasonable effort to arrange a meeting is unsuccessful. 1640(e). If your challenge is successful, the court will most likely dismiss the foreclosure, forcing the process to restart. This helps us get the best deals for our clients. No. Associates Home Equity Services v. Troup, 343 N.J. Super. Transfers are obligated to follow the formalities of real estate documents: Ohio RC: 5301.01(A) "A deed, mortgage, land contract shall be signed by the mortgagor[and][t]he signing shall be acknowledgedbeforea notarywho shall certify the acknowledgement" Ohio RC 5301.32 "A mortgage may be assigned[and then] acknowledged as provided by section 5301.01 of the Revised Code.". . <p> 23 Legal Defenses To Foreclosure: How To Beat The Bank<br>by Doucet, Troy<br><br>Pages can have notes/highlighting. Therefore, because it did not acquire its interest until after the filing of the lis pendens, it had no "sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation.". McLean v. JP Morgan Chase Bank Nat'l Ass'n,79 So.3d 170, 173(Fla. 4th DCA 2012). E.D. If you have an FHA loan, call the FHA National Servicing Center at 1-877-622-8525. Because the Bank knew that Brothers was occupying the premise, the court ruled that it was the Banks duty to join Brothers in the lawsuit. Delaney's, Inc. v. Pritchard, 480 So. For example, say the servicer fails to send you a notice of default that state law requires. 09CA0067-M, 2010-Ohio-2668, 2010 WL 2347077, 13, citing First Fin. Federal Rules of Civil Procedure, Rule 19 establishes this defense. In re Peed, 403 B.R. M.R. 2013) https://casetext.com/case/pfeifer-v-countrywide-home-loans-2, Mortgage Insurance Policy Pays Claim as Offset, A standard mortgagee clause in an insurance contract provides a mortgagee with much greater protection than a "simple" loss payee clause which merely designates the mortgagee as an alternative payee under the policy. If you make a QWR, your mortgage servicer has to provide you with information regarding your loan amount. A foreclosure law expert cautions homeowners against a new foreclosure scam that requires a transfer of ownership in the home as part of the scam. v. Lucas, No. 5. summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due. The foreclosure can't start either by the issuance of a notice of default (Washington) or recording a notice of default (California) until the bank or servicer has: When the foreclosure starts, the bank or servicer must include a declaration with the notice of default that it has complied with these requirements. List Price: $39.95. 5, 2015), https://casetext.com/case/harrison-v-us-bank-natlassn. 3d 251 (Fla. Dist. Appellants are general creditors of the mortgagor of a condominium under construction in Ocean City. v. Vitellas, No. 203.606(a). In many cases, the debt has been sold over and over again to different banks and investors. * * *", Statutory Authority is found in ORC 2323.12-13, The bulk of issues pertaining to cognovit judgments are contained in ORC 2323.13, ORC 2323.12 provides the authority to issue a judgment by confession (which is akin to a cognovit judgment entry since the judgment is issued after confession by the Defendant) "A person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment; whereupon judgment shall be entered accordingly. Mar. 2019) https://casetext.com/case/wells-fargo-bank-na-v-juza. Put more simply, the witness stated Deutsche Bank was entitled to enforce the note "through possession." In re Dow, 132 B.R. at 250. See Moening v. Alaska Mutual Bank, 751 P.2d 5, 7-8 (Alaska 1988). (Asserting a credit-card bill was a copy of the original when it was not.). 3d 464, 471 (Ohio Ct. App. Author: Troy Doucet. The case then went to Supreme Court of Ohio, which affirmed the appeal courts decision. As noted above, mortgage servicers handle a huge quantity of accounts, and their employees can make mistakes. 1996) (concluding that the defense adequately raised a statute of limitations defense in its summary judgment motion). The servicer dual-tracking your loan (continued with a foreclosure at the same time that a. CA2006-02-029, 2007-Ohio-222, 2007 WL 136746, 20. Each chapter incorporates a section of the possible damages available for each defense - including how to cancel the loan and get a refund of all money paid to the lender. If a plaintiff believes that a statecourtjudgment was obtained byfraud on thestatecourt, the plaintiff's remedy is by way of a motion for relief from judgment under state law (and before the statecourt), not by way of a collateral attack on thatcourt'sjudgment in federalcourt. Such a dower interest is inchoate and contingent and vests in the surviving spouse only upon the owner-spouse's death. Mar. [8] https://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-blog/posts/the-duty-to-mitigate-damages-but-i-didn-t-do-anything-wrong#:~:text=The%20duty%20to%20mitigate%20damages%2C%20also%20known%20as%20the%20%22doctrine,of%20a%20breaching%20party's%20actions. 293, 299,413 P.2d 397(1966)). P. 12(b) & (h). It is the duty of someone who has been wronged to make reasonable efforts to limit the resulting harm. FEE-SPLIT CLASS v. MONEY STORE No. If the foreclosing party can't prove it owns the loan, it doesn't have "standing" to foreclose. Whitburn then sought to intervene post-judgment to cancel the sale of the property. App. Pointing out a violation of these rights can prevent a foreclosure until the lender complies with the law. Additionally, the loan servicer must contact client by phone no later than 36 days after missed payment to discuss loss mitigation options. In such a case, although no consideration or benefit accrues to the person making the promise, he is the author or promoter of the very condition of affairs which stands in his way; and when this plainly appears, it is most equitable that the court should say that they shall so stand. Co. 10th Dist. And even if the plaintiff is unable to demonstrate good cause, "the district court must still consider whether a permissive extension of time may be warranted. The statute also provides for a twenty-one-day safe harbor provision allowing the party to withdraw or correct "the challenged paper, claim, defense, contention, allegation, or denial." Co., v. LBJ Linden Co., L.L.C., Second Dist. Corp. v. Allstate, 838 P.2d 790, 793 n.5 (Alaska 1992) https://casetext.com/case/firemans-fund-mortg-corp-v-allstate, Private mortgage insurance carriers are regulated in Texas by Tex.Ins.Code Ann. Huntington Cont'l Townhouse Ass'n, Inc. v. Miner, 230 Cal.App.4th 590, 179 Cal. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. The final judgement in foreclosure was $5,145,464 to the plaintiff, but the judge granted only $195,309, based on the plaintiffs failure to mitigate damages by not using or trying to appoint a rent receiver to collect rent, among other factors. Spine may show signs of wear. on reh'g);see also Mustang Pipeline Co. v. Driver Pipeline Co.,134 S.W.3d 195, 196 (Tex. At that point, the high bidder officially becomes the new owner, as . The unclean hands doctrine is a defense against claims in equity. ), cited by Citibank v. Hyslop, 2014-Ohio-844, 10 (10th Dist. No. For instance, a couple might use an affidavit to disclose property in a divorce proceeding or a business owner could use an affidavit to disclose equipment included in a business sale. 203.604) and, as alleged in the third amended complaint, such meetings did not occur in the present case. 17-224-DLB-CJS. The confession shall operate as a release of errors. 1996), https://casetext.com/case/ameritrust-co-na-v-white?resultsNav=false. You may also attach a summary. In addition, Item 7 on Official Bankruptcy Form B 10, sets forth the content and format for proofs of claim and instructs creditors as follows: Attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements. IN RE JPMORGAN CHASE MORTG. Troy Doucet and Andrew Gerling both graduated at the top of their law school classes and are highly rated foreclosure defense lawyers. Moreover, a party who seeks to recover damages on a contract must plead and prove its own performance or a valid excuse for its failure to perform. are: 1. No. Id. 1993) https://casetext.com/case/auto-owners-mut-ins-co-v-newman, Fireman's Fund Mortg. Nat'l Mortg. (citing In re Jones, 122 B.R. R. Civ. So, in order to assert a claim based on a quasi-contractual theory, a party must plead that a contract is either lacking or invalid. 2010) https://casetext.com/case/us-bank-na-v-detweiler#p472, Section 203.606(a), Title 24, C.F.R. 14695/12, slip op. 3:14-cv-686 (E.D. If the bank files an incorrect or robosigned affidavit or declaration, you might have a defense to the foreclosure. 2014) https://casetext.com/case/huntington-contl-townhouse-assn-inc-v-miner. The proper method to address the failure to attach a document is to file a motion for a more definite statement under Civ.R. Our law recognizes as an affirmative defense the principle that a party is excused from performing a contract if the other party committed a prior material breach of the contract. 254, 778 A.2d 529 (N.J. Super. 2017)https://casetext.com/case/anfriany-v-deutsche-bank-natl-trust-co-1, Judicial estoppel is an equitable rule which prevents a party from attempting to change the facts of a case to fit whatever theory seems to be most beneficial to it at the time. Id. 1985);cf. 525, 531 (Bankr. There are no guarantees in life, and certainly not in the law. Ass'n, 830 S.E.2d 652 (N.C. Ct. App. ", Warning has to appear on promissory note, guaranty, lease (doc that evidences indebtedness) directly above or below signature of party authorizing cognovit judgment, Distinct type size, appearing more clearly or conspicuously than anything else in document, Warning must be more "clear and conspicuous" than other parts of document, Has to comply strictly with all requirements of 2323.12(D) if not, Court does not have jurisdiction to enter cognovit judgment on instrument, If the amount in controversy is greater than $15K, can file in Court of Common Pleas with territorial jurisdiction over place where ANY obligor under warrant of attorney resides or where ANY obligor signed warrant of attorney (ORC 2323.13(A)), Obligor cannot waive venue/jurisdiction requirements of 2323.13(A) by signing cognovit instrument with contrary forum selection clause, Requirements for Complaint (Cognovit Complaint requirements for the most part are not enumerated specifically in the Rules of Civil Procedure/ORC), Statement of Plaintiffs Attorney setting forth Defendants Last known address ORC 2323.13(B), Statement that Warrant of Attorney did not arise out of Consumer Transaction/Consumer Loan, Where Plaintiff is an attorney must include statement that warrant of attorney did not arise out of attorney/client relationship to collect fees, This is a local rule from Cleveland Municipal Court Local Rule 6.07, Statement that original instrument containing warrant of attorney accompanies complaint, Allegation that cognovit instrument is in default and was accelerated by Plaintiff or instrument has matured, Statement of amount due on instrument and that Defendant has not paid amount to Plaintiff, Statement that Court has jurisdiction to render cognovit judgment against Defendant based on Defendants residency or location where defendant signed the warrant of attorney, Allegation that instrument contains warrant of attorney and warning set forth in ORC 2323.13(D), Other documents/allegations as required by local rule i.e. . If any of these things have not been offered or considered, failure to mitigate damages may be present. In re Cala, No. The loan owner or mortgage servicer didn't follow the foreclosure procedures that state law requires. N.D. Fla. 1989) https://casetext.com/case/st-george-island-ltd-v-sun-bank-na#p348, Gray v. Fed. at 229, 794 S.E.2d at 507. Reeder v. Kay,282 Or. 1998). Also, courts all over the country have heard many cases on standing and have often decided against homeowners. https://www.leagle.com/decision/19921503843sw2d66011404, Generally, if the mortgagee recovers under the policy, the monies received by the mortgagee inure to the benefit of the mortgagor. PINEDA v. PMI MORTG. In re Smith, 866 F.2d 576 (3d Cir. In regards to foreclosure by judicial sale, necessary parties can include "parties who acquired easements, liens, or leases after the mortgage being foreclosed was executed."[7]. The factors to be considered in determining whether a breach is material are: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.