What is Foreclosure Law?
Foreclosure law provides the means for a mortgage lender to take possession and sell a home when the borrower has defaulted on the loan. The money from the sale is used to pay off the balance of the loan, and the new buyer takes the home free of the mortgage. If the proceeds are not enough to pay off the loan, the borrower may be held personally liable for the difference, in addition to being forced out of the house. From the lender’s perspective, foreclosure is slow and expensive. Thus, the lender will usually be just as motivated as the borrower to see that the loan is paid on time and foreclosure does not become necessary.
To understand foreclosure law, it helps to consider the nature of a mortgage. Mortgages are used when potential homebuyers seek to borrow purchase money, or when homeowners with equity in their property want to borrow cash to make home improvements or for other purposes. In either case, a bank lends the money, and requires the borrower to sign a mortgage document giving the bank a security interest in the home. In other words, the home becomes collateral for the loan. If the borrower stops making the loan payments, the bank can take the collateral through the process of foreclosure.
Stopping Foreclosure and Keeping Your Home
The foreclosure process is handled differently in each state, but the end result is the same – the borrower loses all rights to the home. For borrowers with the desire and the means to stop the process, several options are available that will allow them to retain possession of the property. To begin with, prior to the time the bank sells the home at a foreclosure sale, borrowers always have the option of paying the full balance of the loan. This will extinguish the mortgage and the borrower will own the home free and clear. It may also be possible to pay only the missed payments and any penalties, thereby reinstating the defaulted loan and stopping the foreclosure.
Of course, borrowers facing foreclosure came to be in that situation for a reason, and likely do not have the funds to bring the loan current or pay it off altogether. These people may still be able to keep their home through forbearance. Forbearance means the lender agrees to suspend payments for a period of time. This can be useful to a borrower who is temporarily out of work, but it will not reduce the principal balance or avoid penalties and fees associated with the delinquency.
Loan modifications are another way for distressed homeowners to keep their property. A modification involves the lender agreeing to change the terms of the loan to make it more affordable for the borrower. These changes are permanent, and usually involve lowering the monthly payment amount by extending the length of the repayment period. In some cases, borrowers may even be eligible for a reduction in the principle balance of the loan. A number of government programs, including the federal Home Affordable Modification Program (HAMP), exist to aid borrowers by subsidizing modifications that meet certain criteria.
Options for Those Willing to Surrender their Home
In some situations, borrowers will not want to keep their home. This is often the case when the home is “upside down,” meaning the outstanding loan balance is greater than the market value of the property. Confronted with loan payments they know they can never afford, borrowers may simply be looking for a way to hand over the keys to the bank and walk away from the property. The best option for these people is usually a deed in lieu of foreclosure. Basically, the borrower signs over all interest in the home to the lender, in exchange for the lender ceasing the foreclosure process.
The Importance of Avoiding Default Judgment
While a deed in lieu of foreclosure can be an efficient way for a homeowner to leave a troubled home loan behind and start over, it presents the possibility of a deficiency judgment. This can be a dangerous trap for borrowers who are not familiar with foreclosure law or do not have an attorney to represent them. A deficiency judgment refers to the personal liability of a borrower for the unpaid balance of a home loan, even after the home has been foreclosed and sold.
Besides taking a security interest in the home, mortgage lenders require borrowers to sign a personal guarantee. This way, if the foreclosure sale does not bring in enough to satisfy the loan, the rest can still be collected from the borrower personally. For borrowers, this represents a worst case scenario, as they will continue to owe money even after the home has been lost. Fortunately, borrowers who hire an attorney to negotiate a deed in lieu of foreclosure will almost always succeed in getting the bank to waive its right to a deficiency judgment as part of the deal.
Retaining a Foreclosure Defense Attorney
If you are struggling to pay your mortgage, the best thing you can do is contact a foreclosure attorney. An attorney may be able to defend the foreclosure by finding discrepancies in the loan documents or other aspects of the bank’s case. To learn more about your options, schedule a consultation right away.