Jonathan Kline of JK Law. Courtesy photo.

When Weston foreclosure attorney Jonathan Kline of JK Law read through the Coronavirus Aid, Relief and Economic Security Act — an impromptu law passed in March to ease economic hardship amid the COVID-19 pandemic — he had a revelation. And it could signal great news for homeowners litigating against foreclosure.

Section 4022 of the CARES Act temporarily blocks federally-backed mortgage loan servicers from enforcing foreclosures against homeowners who are experiencing hardship, regardless of whether they're delinquent. But, while federally backed usually means a Federal Housing Administration, Veterans Affairs or U.S. Department of Agriculture loan, Kline noticed the provision goes further.

Subsection (G) of the provision says that federally backed mortgage loans include those "purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association."

Those two government-sponsored enterprises are commonly known as Freddie Mac and Fannie Mae, which, instead of acting as regular lenders, back or guarantee loans in the secondary mortgage market. Fannie Mae tends to buy mortgage loans from commercial banks, while Freddie Mac typically buys them from smaller banks.

Kline said this means homeowners could be entitled to up to one year of forbearance under the CARES Act if Fannie Mae or Freddie Mac have purchased or securitized their loans.

He's sought notice to file the first two of what he says will be a string of motions in Broward Circuit Court, asking for 180-day stays in clients' cases. Homeowners can later apply to extend those stays for another 180 days.

The biggest obstacle, according to Kline, is that lenders and servicers will argue that the loans are not federally backed and therefore don't qualify, meaning he'll have to fight to prove otherwise.

"They may not realize that the act extends to securitized loans by Freddie Mac or Fannie Mae, and that's what puts this in a different category," Kline said.

But if Kline succeeds, he says the difference could be huge, potentially triggering an influx of similar motions to stay under the CARES Act as more than half of all loans could be eligible.

"You just took the numbers from a small amount of loans under FHA, VA and the Department of Agriculture to what I believe is now over 50% of all loans," Kline said. "They don't even have to own it [the loan]. All you have to do is have it securitized by Fannie Mae and/or Freddie Mac and you qualify under this particular CARES Act provision."

Homeowners have until July 11 to file motions to stay under the CARES Act, according to Kline, who said anyone whose loan is in a trust can check on it at sec.gov/edgar.

"If they can find their trust, they can look over the terms and conditions or the provisions of the trust, which incorporate Freddie Mac or Fannie Mae standards into this securitization process," Kline said.

Among Kline's clients seeking abatement are defendants Igdalis Roldan and Ivory Joe Christen, sued by Wells Fargo Bank National Association in 2019, and Meir Jacob Zamstein and Eilana Cohen, facing a 2008 lawsuit from U.S. Bank National Association.

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