Foreclosure Attorney
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What is Foreclosure?
Foreclosure is the process by which a bank determines that your mortgage is behind in payments to a sufficient degree that it wants to take possession of your home and sell it, to recoup its losses. The process is sometimes handled through the courts; other times, it’s not—instead going through what’s known as a nonjudicial foreclosure.
In either case, the lender’s goal is to sell the property through a legally allowed process, such as a sheriff’s sale, and use the funds gained to pay off your remaining balance on the loan. If the price paid is higher than your debt, the balance may be owed to you.
How does foreclosure work?
Foreclosure becomes possible when your loan is in default, usually after one or more mortgage payments have been missed. At this point, the lender begins to see your property as a potential foreclosure, but it can’t legally begin the process yet. Ideally, contact your lender about the situation before you miss even one payment—you’ll have more options available at that point. Even if you’re two or more payments behind, contacting the lender may help you avoid an actual foreclosure by giving you time to get caught back up or creating a payment plan. If the 120 days have passed, the foreclosure process can look different, depending on where you live, but many states at that point still have ways to stop a sale or even cancel it if you can pay back what you owe in sufficient time. This time frame is known as the redemption period.
Types of foreclosure
The three types of foreclosure are judicial, non-judicial and strict foreclosure.
Judicial
Under a judicial foreclosure proceeding, the lender files suit with the court to initiate foreclosure—typically after the borrower misses their third consecutive mortgage payment (also known as going 90 days past due on their loan). The borrower receives a letter indicating foreclosure will commence if they don’t bring the loan current within 30 days. (The time limit may be longer in some jurisdictions.) If payment is not made in time, the property is sold at an auction conducted by a court or sheriff’s office. All states allow this type of foreclosure, and some mandate it.
Non-Judicial
If your mortgage has a power of sale clause or if you are in a state in which a deed of trust is used instead of a mortgage, the lender has to right to foreclose on property without the approval of a court. As with judicial foreclosure, a formal notification is made, but the window of time before a property is sold may be shorter. This process presents an advantage to lender because it takes less time and money to foreclose on a property. The borrower has less time to resolve their debt and potentially keep their home.
Strict Foreclosure
Strict foreclosures are less common than judicial and non-judicial foreclosures. In a strict foreclosure, the lender seeks a court order to seize property from a homeowner. Once approved, the homeowner is given a set period of time to resolve the debt. If they are unable to do so, the property returns to the lender who is free to do with it as they choose. While it’s not much of an advantage for the homeowner, at least they have a designated time to pay their debt before losing their home.
Foreclosure is an emotional and financially difficult process to endure. The smartest choice you can make is finding a foreclosure lawyer that understands the process and can help you make sound choices for your future.
What is the process for a Foreclosure?
The foreclosure process in 5 steps
If your mortgage payment is a few days late, you are probably not at risk of foreclosure. Your lender may have a grace period of up to two weeks for you to make your payment without serious penalties. After the grace period, however, your payment is considered late and you’ll be charged late fees. You might also receive a warning from your lender about a potential foreclosure if you fail to make the payments.
After three to six months of missed mortgage payments, your lender will file a Notice of Default with the local recorder’s office. Your lender will also send one to you via certified mail, and depending on your state, might post the notice on your front door. This notice specifies how much you owe in order to bring your mortgage back into good standing.
A Notice of Default could show up on your credit report and affect your score. This can make it more challenging to obtain other types of credit or refinance your mortgage.
A Notice of Default doesn’t equate to the lender immediately or automatically foreclosing on your home, and it doesn’t mean you don’t have options to prevent the foreclosure from happening. You can put a stop to the proceedings by getting current on your payments.
If you don’t have the money to bring your mortgage into good standing within the allotted time frame, your lender will file a Notice of Sale, and your home will be placed up for auction at a specified time and location.
How the Notice of Sale is published depends on your state. For example, in North Carolina, the notice must be published in a local newspaper and posted on the door of the local courthouse, while in California, it must be posted on the property as well as a public place in the county.
Because the Notice of Sale is public information and has been advertised, several buyers, including investors, might be interested in buying your home. Depending on laws in your state, you might have the ability to exercise right of redemption (meaning you can reclaim your home) up until the foreclosure sale, or even after.
Preforeclosure is the time period between the Notice of Default and the auction or sale of your home. During this time, if you can get your hands on the amount specified in the Notice of Default, you’ll be able to stop the foreclosure process from going any further. The exact amount of time you have depends on your state. During preforeclosure, you might also have the option to sell your home and pay back the money owed, in what is called a short sale.
Following the auction and sale of your home, you’ll generally have a few days to gather your belongings and move to a new residence. If you do not voluntarily move out, law enforcement personnel are legally allowed to remove you and your belongings from the premises.
Difference between judicial and non-judicial foreclosure
Judicial and non-judicial foreclosures offer protection to the lender, who can reclaim the property if payments are not sufficiently up to date. Both options also protect the borrower, who can purchase the property from the buyer for up to one year after the auction. This is known as the right of redemption, but it rarely happens.
- In a judicial foreclosure, the lender files a lawsuit with the court, and a judge must approve the foreclosure before the lender schedules the property for auction. At the end of the foreclosure period, the lender must file a petition to proceed, and the judge will order an auction, unless they feel there is a reason not to, for example, if the borrower appeals their case, citing unfair lending practices.
- Non-judicial foreclosure doesn’t involve the courts; it’s still a legal process but is quicker and cheaper than a judicial foreclosure. Redemption rights vary by state. In some states, the borrower may not have the right of redemption at all. Lenders may sell the property at any price they decide. If the property sells for less than what the borrower owes, the lender may sue the borrower for the difference, a process known as a deficiency judgment.
How long can the borrower stay in their home after foreclosure?
The foreclosure process varies by state and can last anywhere from a few months to over a year. During that time, the borrower can stay in the home until it’s sold. After the auction, the new owner must notify the original owner of how long they can stay before eviction.
Again, the timing varies across states. In Florida, for example, the buyer must give the previous owner a 30-day’ notice to vacate the premises, while in Ohio, it could be less than a week.
What Are the Steps in a Foreclosure?
Here is a general description of the steps that occur in a foreclosure:
- The bank notifies the borrower that it intends to foreclose on the house
- A negotiation period takes place, with both sides hoping to save the property from foreclosure
- If the parties cannot come to agreement, the bank files a lawsuit in the county courts
- If the court approves the foreclosure, the local sheriff auctions the property to the highest bidder, or the bank becomes the owner in order to sell it themselves
- The bank padlocks the property if it is empty. The bank may not padlock the house if the homeowner is still living in it
- If the bank cannot sell the property, it will seek judicial remedies to recover the amount of debt from the borrower
Can you get out of foreclosure?
Getting out of foreclosure isn’t impossible. There are steps a homeowner can take at different stages of the process. If you’re less than three months delinquent on the mortgage, usually you can temporarily hit pause on foreclosure by making a single payment. If the balance isn’t paid in full, the homeowner will still need to reach an agreement with the mortgage company to bring the account current.
After you’re three months behind, you may be able to get out of foreclosure up until the home’s sale by reaching an agreement with your mortgage company or paying the balance owed on the mortgage plus the total costs incurred from the foreclosure.
Once the property is sold, you can get the house back only if there’s a redemption period and if you cover the foreclosure costs and pay the current mortgage balance before that time is up.
The consequences of foreclosure
There are several financial consequences to foreclosure, and they can be devastating. For one, getting a mortgage after foreclosure can be challenging because of the impact on your credit and the fact that you’ll likely be subject to a waiting period before having a chance at a new loan. The other implications of foreclosure include:
- Losing your home, which puts you in the position of having to find a new place to live with a foreclosure on your record
- Damage to your credit, since a foreclosure stays on your credit report for seven years
- Losing your property and equity, which can have far-reaching impacts on your overall wealth
- Owing money on the remaining balance if it’s a judicial foreclosure, and being subject to litigation, wage garnishment and more if you can’t pay
How to Avoid Foreclosure
Foreclosure can be a harrowing process, and one that has lasting consequences. The best way to survive foreclosure is to keep it from happening in the first place.
Here are some tips for steering clear of foreclosure:
Reach out to your lender before you miss a payment
If you’re about to miss a mortgage payment, reach out to your lender before it’s due and explain your situation. They may offer options that can help. These include loan forbearance intended to help you get past temporary reductions in income, and modification of your loan by extending the length of your mortgage term but reducing the amount of your monthly payment. Lenders’ willingness to make these concessions can depend on factors including your credit standing, the number of payments you’ve already made on your loan and whether you’ve previously missed or made late payments.
Don't ignore communications from your lender
Very soon after you miss your first payment—and long before they can initiate foreclosure proceedings—your lender will attempt to get in touch with you. They’ll typically call and send letters and may also email and text you if you’ve authorized them to send you electronic notices. Even though you may feel embarrassed or fearful, it’s important that you don’t ignore these messages. Most lenders will work with you to help avoid foreclosure, but they can’t do that if you refuse to talk with them.
Consult with the government's housing agency.
The U.S. Department of Housing and Urban Development offers a variety of resources, including access to housing counselors who can help you work out a plan for avoiding foreclosure.
How long does foreclosure take?
Most lenders will issue a foreclosure once you miss four mortgage payments — approximately 120 days after the first missed payment. But there are several steps prior to a lender ordering a foreclosure.
- In most cases, once you miss at least one payment, you have a 15-day grace period from the time your payment is due before you start incurring late fees. So, if your mortgage payment is due on the first of the month, you have until the 15th to pay before being considered late.
- If the payment is late for 30 days, the lender might send a delinquency notice informing you that you are behind on payments. Most creditors will also call you to discuss your situation and offer assistance. But keep in mind that at this point, they’ll also notify the main credit bureaus, which will lower your credit score.
- If you continue to miss payments, you’ll receive a demand letter or notice of default stating the total amount owed and a 30-day deadline to pay it in full. This is known as the pre-foreclosure period, and it typically starts once you’re 90 days late — that is, when you’ve missed three payments. Not paying the amount owed before the deadline stipulated in the demand letter would cause the official foreclosure process to start.
How Does Foreclosure Affect Credit?
Since a foreclosure will remain on your credit report for seven years, it can have a lasting effect on your credit score.
With a low credit score, your ability to borrow money in the future is hampered. For example, if you want to finance a vehicle in the next couple of years, you’ll likely face higher interest rates and limited borrowing power.
In the years following a foreclosure, your homebuying options are also limited. With conventional loans, you’ll need to wait seven years after a foreclosure to obtain a new home loan. If you’re seeking a government-backed mortgage, you might not have to wait as long. But in any case, a foreclosure will impact your home-buying options for years to come.
Do I Need a Foreclosure Attorney?
Facing foreclosure is something that millions of people have been through. Some homeowners won’t go down without a fight. In that case, it is essential to have a foreclosure attorney in their corner.
If you are up against a possible foreclosure, please keep reading about whether or not you need to hire a lawyer to represent you during this process. We’d gladly answer any questions you have during your free consultation with our foreclosure defense attorneys.
When to Hire a Foreclosure Attorney
You have a right to defend your home if the bank is trying to take it. The following are a couple of reasons why you should hire a lawyer if you are facing the possibility of foreclosure.
You Want to Defend Your Home
If you have a valid reason to fight for your home, you will likely need a foreclosure attorney to help you. Depending on your circumstances, you may use a few defenses which would allow you to save your home from foreclosure.
First, if your mortgage lender did not correctly follow foreclosure procedures, you can fight this. There are several steps that they need to go through before they foreclosure your home. If they don’t follow the procedure, it is time to call a lawyer.
Further, if the mortgage lender cannot show proof that they own your loan, you can fight foreclosure.
Lastly, if a huge error is made to your mortgage account, you can call on a foreclosure attorney to help you. An error may include charging you unreasonable fees, forcing you to pay for a homeowner’s insurance policy that was bought improperly, etc.
We can help you determine valid reasons to fight foreclosure.
You Are an Active Servicemember
If you are in the military, you are given special protections under the Servicemembers Civil Relief Act, which provides several benefits. Essentially, if you are facing foreclosure as a military member, you are protected against this court action. You cannot face foreclosure while serving our country. We would be glad to discuss this further during your free consultation.
When Not to Hire a Foreclosure Attorney
In some cases, it may make sense for you to throw your hands up and surrender to foreclosure. The following are reasons why you may not need to hire a foreclosure lawyer.
You Don’t Want to Save Your Home
You will not need to hire a lawyer if you have no intention of fighting foreclosure. Many homeowners have chosen not to fight foreclosure because they are trying to stay in their homes for free until the new owner gets the title to the house.
You can do this because you technically still have legal ownership of the home until the title is transferred.
However, it may be preferred to have a lawyer if you intend to do this because some banks will try to take out your property or change the locks to your home before the title is transferred. In this case, you may need legal assistance.
You Don’t Have a Valid Defense
You may very well not have a legitimate defense for your foreclosure, so you may decide not to fight it. This would be when you give up your home to the bank. It may have been a willful decision to stop paying your mortgage without having any intentions of beginning payments again.
If you believe this foreclosure is warranted and don’t want to stop it, there would be no real reason to hire a foreclosure attorney.
Please understand that you do have options that could save you from foreclosure. We would be happy to discuss those options with you.
How To Respond To A Foreclosure Lawsuit
After you receive a summons—the formal letter notifying you of the foreclosure lawsuit—you have a number of options:
- Ignore the summons altogether. If you simply ignore the summons, your lender will probably win the case and take possession of your home as soon as they receive court approval.
- Fight The case in court. If you decide to fight to save your home, your lender will be represented by a team of highly-skilled attorneys. In order to level the playing field, you should consider retaining an experienced foreclosure defense attorney to fight for and protect your rights.
- File for Chapter 13 bankruptcy. If you qualify, Filing Chapter 13 stops a foreclosure action in its tracks and gives homeowners three to five years to catch up on their mortgage payments. However, there are some exceptions and homeowners may still risk losing their homes but an attorney can help explain the legalities.
Will It Help If I Work with the Bank?
The process of foreclosing on a house takes time, and the bank has to pay the costs of the lawsuit. Banks are often willing to make arrangements to avoid such time-consuming, expensive and complicated measures. It is a good idea to move quickly on your own behalf by talking to your lender right away to discover the possible options you have to resolve the matter favorably and retain ownership to your property.
Be sure to explain your current financial situation and be cooperative with the bank, no matter how frustrated you may be. Sincerity and a collaborative spirit increase the chances that you’ll get new payment terms on your loan, instead of foreclosure.
Do I Need a Lawyer if the Bank Wants to Foreclose on My House?
There may be legal troubles where you do not need a lawyer, but this is not one of them.. Real estate law is complicated, particularly in the case of foreclosure. If you are at risk of losing your home, it is critical to have the help of a knowledgeable, experienced foreclosure lawyer. Among other things, an attorney will:
- Review all the complex mortgage documents
- Make sure you are receiving all the notices from your lender because failing to respond to one will not be excused by the court with the bescuse that you did not receive a notice
- File an objection to the foreclosure if that is appropriate
- Negotiate with the bank
- Represent you in any legal proceedings
- Ensure that your rights and interests are protected
- Save you from the widespread problem of sham companies offering to fix your mortgage problem
Protect your interests by hiring a foreclosure lawyer. Make sure you are doing the best you can to protect your most important asset.
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