Is danger lurking ahead? Do you foresee not being able to make your mortgage payments in the immediate future due to job loss, medical issues, an adjustable rate, or merely the result of having bought more house that you really could afford?
It may be time to see an attorney.
At first glance, the prospect of taking a foreclosure defense case is about as exciting for a lawyer as defending a known criminal, who committed his latest act in front of about 100 witnesses. After all, in the overwhleming majority of cases, your client signed a note, agreed to repay it, and has failed to do so. In the end, if the case goes to trial, even an extremely saavy lawyer (like myself) will have an extremely hard time preventing the fact that payments have been missed from coming out in front of the Judge.
Do not despair - Relief is possible...
Many lenders today are willing to accept a "deed in lieu of foreclosure" allowing you to simply turn over your home and avoid a deficiency judgment (representing the difference between the value of the home and the total amount owed to the lender). Most require that you are truly facing a hardship (out of state investors looking to shift the risk of loss to the bank due to their own poor real estate investment decisions usually do not qualify). The concept also allows you to avoid the negative marks on your credit reports associated with a formal foreclosure, although the missed payments will often still show up.
Unfortunately, deeds in lieu are becoming less popular with banks, as the real estate market continues to tank. Property taken by a bank (referred to in the industry as "REO's" or "real estate owned") cost money. The bank has to pay property taxes, hazard insurance, flood insurance, and maintenance just like you, or risk losing their asset. This is a "real drag" to the banker. Bankers get rich making loans at interest, not by having to manage real estate. As such, another option is the "short sale."
A "short sale" refers to the scenario where the lender will agree to a sale of the property to a 3rd party for less than what is owed. Just be careful with these, as the term "short sale" is often misunderstood or misused. The last thing that you want to end up with is tax liability associated with "forgiveness of indebtedness" income. Trust me,
The Mortgage Forgiveness Debt Relief Act of 2007 is frequently insufficient protection to avoid this type of "phantom income." As such, I like to structure this transactions in 4 stages - first, we find a buyer, second, we obtain bank approval for the transaction, third, we convey the property to the bank in exchange for a satisfaction of mortgage, and fourth, the bank sells the property to the new buyer. The bank might end up with a loss to write off, but no debt has been forgiven - you sold the property to the bank for the full amount of the mortgage. You win, and the banks win too, in that at least they are ending up with cash rather than another REO.
Sometimes, neither option works. There are other ways to settle. Some banks are willing to reduce principle or cut the effective interest rate so that you can afford to make your payments. Check out this
amortization calculator. Some will accept a "deed in lieu" plus some additional sum, but at least that additional sum is less than the deficiency judgment that you could expect if a full foreclosure went through.
The key to this is patience. Most lawyers prosecuting foreclosures are not used to highly contested proceedings, or frankly proceedings where any defense is alleged at all. The overwhelming majority of foreclosures go through as "defaults" where the delinquent homeowner does not even respond. When there is a response, it usually comes from a "pro se" litigant (someone without a lawyer) who simply pleads for "more time" from the Court. Judges have few options in situations like this - the law is pretty clear that if you want to stay, you have to pay.
As a result, many attorneys prosecuting foreclosures have become lazy. Legal descriptions are often incorrect. Often times, the loan has been assigned to a new lender, and new lender did not even record the assignment prior to filing suit. This creates a "standing" issue. One must own a note to foreclose on the mortgage associated with said note. A lack of standing is a defense that can get a case dismissed entirely.
In the end though, my goal is to find a way to get the property owner out of the loan in a fashion that the property owner can live with, not to try and somehow invalidate the mortgage or obtain a windfall judgment. This is the "victory" we fight for in the foreclosure defense industry.
Here's what you should not believe. If a lawyer tells you that somehow you should expect some type of substantial settlement from the bank (where the bank pays you), rewarding you for blowing off your "upside down" mortgage, don't believe it. The term "predatory lending" might be all the rage in the media, but there are some that still believe in accountability for one's actions, and many of those who believe in this age old moral concept are on the bench. Is there such a thing as "predatory lending"? Yes. How often does it actually apply? Not often.
A decent lawyer can keep you in your home for a while and delay foreclosure for many months (or even a couple of years), and usually can even help you reach a settlement that would be better than being hit with a huge deficiency judgment. There are even some "fees for keys" programs where the lender will pay you up to a few thousand dollars to just turn over your keys and sign a deed, allowing them to take possession of the home without the expense of a foreclosure. However, nobody gets rich by not paying their bills, even in 21st century America.
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