Worried About Foreclosure? What You Should Know

Q.: I am behind in my mortgage payments and worried about foreclosure. What, exactly, is a foreclosure?

A.: A foreclosure is a type of lawsuit in which a lender (such as a bank or mortgage company) sues a borrower who has failed to make his or her mortgage payments. The lender seeks a court order to sell the house to raise money to pay off the debt.

Q.: Who can start a foreclosure?

A.: Your lender can initiate a foreclosure, either in its own name or in the name of a servicing company it may have hired to collect your loan payments and administer your account.

Q.: How soon will I face foreclosure?

A.: Most mortgage agreements state that if you fall behind even one payment, the lender has the right to call the entire loan balance due and start foreclosure. Although few lenders proceed that way after only a one-payment default, by the time a loan is three months delinquent, most lenders are looking closely at whether to foreclose.

Q.: Can I prevent having a foreclosure filed against me?

A.: Yes! If you fall behind in your mortgage payments, contact your lender or servicing company immediately. Foreclosures are costly and time-consuming to lenders, and often the proceeds of a foreclosure sale are insufficient to pay off the loan. Most lenders have a "workout" or "loss-mitigation" department you can call at a toll-free number to discuss possible solutions other than foreclosure.

Q.: What are my options prior to foreclosure?

A.: The most common is a repayment agreement, sometimes called a "forbearance plan." Terms vary, but generally you must resume payments and arrange to pay the past-due amount over a short period of time. Another workout option is called "loan modification," which can lower your interest rate or extend the final due date of the loan to make your monthly payments lower.

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Is there any way I can keep my house after a foreclosure has been filed against me?

A.: Yes. You may pay the money you owe in order to bring your account current (known as "reinstating" your loan) or you may pay off the loan in full. To reinstate your loan, you probably will have to pay your lender's attorney fees and costs in addition to late charges and interest that will have accumulated. To pay off the loan in full, you might refinance through a new lender.

Q.: What if I don't want to keep the house?

A.: One option is to sell the property privately instead of having it sold at a court-ordered sale. If you hold a private sale, if you or a real estate agent find a buyer, the amount of the sale usually must be for enough to pay off the loan in full (although lenders occasionally take less).

Another possibility is to ask your lender to take the house back in what is called a "deed-in-lieu" of foreclosure. In a deed-in-lieu, the lender forgives your obligation to repay the remainder of the debt in exchange for the property. Depending on how much you owe compared to the value of your property, a deed-in-lieu may protect you from a "deficiency judgment." (A lender can obtain a judgment against you for the amount you still owe after the sale if the proceeds of the sale are not enough to pay off the debt. The lender could then garnish your wages or bank accounts or take other steps to collect the deficiency). Lenders will accept a deed-in-lieu only if there are no other liens against the property and it is vacant.

Q.: Can bankruptcy help me avoid foreclosure?

A.: Yes, depending on the type of bankruptcy case you file. Bankruptcy is a complex matter; if you are considering it, you may want to consult an attorney with bankruptcy experience.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.


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