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Credit Mishaps

Understanding Foreclosure

"Foreclosure" is a legal process that permits a creditor (a lender or mortgage holder) to repossess or sell real property, like a condo, a home, or land, for the purpose of repaying the debt owed on that property. Mortgage holders are permitted to foreclose on property anytime after the borrower defaults on the mortgage, unless otherwise set out in the mortgage or in the laws of the state where the property is located. Although state laws vary, foreclosure generally involves the following steps:

Will a foreclosure action wipe out all of a property owner's debt?

Foreclosure actions wipe out some of the property owner's debt, like the original mortgage (taken out at the time of the home purchase), HELOCs, and second mortgages. However, property owners are still obligated to pay off HELOCs and second mortgages in full if they are not paid out of the foreclosure proceeds.
In markets like the one we are now experiencing, where there has been a significant drop in real estate prices, some properties will be sold for less that the balance owed on the original loan. If there is no insurance (e.g. PMI) that covers the difference between what is owed on the property and what it was sold for, a court could enter a deficiency judgment against the property owner. Deficiency judgments obligate the property owner to repay the difference and give mortgage holders the right to collect the remainder of the debt owed from any other assets the property owner may have.

Mortgage holders' legal obligations in foreclosures:

In most states, mortgage holders, or lenders, have two primary obligations:

  1. Notice: In most states, the most important part of the foreclosure process is to provide notice to the property holder. In these states, lenders are required to (1) provide a homeowner with sufficient notice to allow the property owner to understand that he or she is in default, and (2) give notice of the property owner's right to cure the default before the lender can initiate a foreclosure proceeding. Do NOT bury your head in the sand and ignore written communication from your mortgage lender. Respond to any notice you receive as soon as you receive it. Find out the exact details of what the lender believes you did, or failed to do, and ask what you can do to cure the default.
  2. Written claims (proof of money owed under the mortgage): Lenders are also usually required to file statements that itemize the amount the property owner owes under the mortgage. This amount owed includes the principal, interest, late charges, attorneys' fees, and any other charges the lender is permitted to charge under the terms of the mortgage or the laws of the state where the property is located. In many states, lenders are not required to send a claim to the property holder.
  3. Soldiers' and Sailors' relief: Lenders are also required to certify in writing that the property owner is not a member of the armed services before initiating a foreclosure action. The Soldiers' and Sailors' Civil Relief Act is intended in part to protect deployed active duty service people. If you are a member of the armed services, you should consult an attorney about your rights relating to foreclosure proceedings.

What if the lender is wrong?

If you think your lender made a mistake because you did not default on your loan or the amount the lender is claiming is incorrect, contact the lender and explain in writing why you believe the lender is mistaken. Be sure to explain clearly why you are not in default and provide copies of any documents that prove your position. Even if your lender does not agree, you have the right to go to court and prove that you did not default on your loan. If you go to court, the documentation you send to the lender will be very important. You may wish to consult with legal counsel to handle any court appearances and documentation.

Can I stop a foreclosure?

Legal ways to stop or prevent a foreclosure:
There are basically two legal ways to challenge or defend against a foreclosure.

Technical defenses are defenses to the foreclosure proceeding itself. One example of a technical defense is if a property owner was not given adequate notice of the default and proceedings. However, technical defenses are not very helpful in preventing foreclosures because a mortgage holder can easily defeat the defense by correcting the procedural defect. In the example of lack of adequate notice, a mortgage holder can defeat the defense by issuing a new default notice and beginning the proceedings over again.
Substantive defenses are the best legal way a property holder can stop a foreclosure. Substantive defenses go to the terms of the mortgage itself. Here are some examples of substantive defenses to the foreclosure process:

Practical suggestions to stop a foreclosure sale

Tax issues

There are tax consequences of foreclosure. When a debt is forgiven in a foreclosure action, taxpayers are considered to have made money. That means that the taxpayer or property owner not only loses the property, but also may owe taxes on the difference between what was paid for the property (the value of the home) and what is owed on the mortgage (but forgiven in the foreclosure action).

MCMF Tips:

Always check the validity of the company with your State's Attorneys General. (To find your Attorney General: http://


Acceleration Clause
Most mortgages have acceleration clauses that allow the mortgage holder to declare the entire debt due and payable as soon as you default on a payment. For example, if you have a mortgage on your home for $75,000 and you fail to make the monthly payment, the lender can demand that you pay the full amount of $75,000 immediately -- as soon as you miss that one payment. If a mortgage does not have an acceleration clause, the lender can begin foreclose proceedings as legally permitted in the state where the property is situated.
Deficiency Judgments
You as a mortgagor are required by law to pay mortgage insurance (e.g. PMI) for the length of time the mortgagor's first mortgage is more than 80% of the value of the property. In a real estate market like the one we are experiencing now, where housing prices drop, it is possible that the property could be sold for less than the balance on the loan. PMI will not cover this deficit, so a lender may ask the court to enter a deficiency judgment against you. A deficiency judgment gives the lender the right to collect the difference from your other assets unless the loan is considered a non-recourse loan.
Foreclosure by judicial sale
A foreclosure by judicial sale is the most common method of foreclosing on real property. A foreclosure by judicial sale is a process supervised by the court where property is sold. The proceeds of the sale go to: (1) the lender, to satisfy the terms of your mortgage; (2) other lien holders, and (3) to the mortgagor of the property (if there is any money left).
Foreclosure by the power of sale
In a foreclosure by the power of sale, the mortgage holder, or lender, sells property outside the supervision of a court. Most states permit lenders to foreclose by selling property because it is very efficient. Like the foreclosure by judicial sale, the proceeds of the sale go in order to: (1) satisfy the terms of the mortgage; (2) other lien holders; and (3) to the mortgagor (if there is any money left).
Deeds in lieu of foreclosures
Some states allow strict foreclosures, or deeds in lieu of foreclosures. In those states, when a property owner defaults on the terms of the mortgage, the court orders the property owner to pay the mortgage within a certain period of time. If the property owner can't satisfy the court order within that time frame, the lender, or mortgage holder, is permitted to take title of the property. The deed transfers the property owner's interest in the property to the lender to satisfy the debt owed. The process can be advantageous to both parties because:

This type of foreclosure is not attractive to lenders foreclosing on property if the fair market value of the property is greater than the amount the mortgagor owes on the property. This is because banks and lenders who bid on the property at auction usually will not bid more for the property than the amount actually owed on it.
A mortgage is the written agreement between a lender and the purchaser of property (“Mortgagor”) and defines the terms of the purchase of the property.
Points are the commissions or fees you pay your broker, or lender. A point is equal to one percent of the amount of the loan. If your mortgage is $300,000 and you pay two points you will pay $6,000 in fees to the broker.

This document provides details about foreclosure law but it is not legal advice. Although we made every attempt to make sure this information is accurate, we recommend you consult an attorney to verify which information applies to you and is appropriate to your situation.
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