When property is put in foreclosure, it means that the borrower is in default under the terms of the home loan and the lender is retaking title to the property. In states that allow use of a mortgage agreement, as opposed to a deed of trust, most homes are foreclosed on through a process called judicial foreclosure. Judicial foreclosure, as the name implies, occurs inside of the court system, and is usually slower and more expensive than the non-judicial foreclosure that occurs in states that allow deeds of trust.
It is usually hard to defend against judicial foreclosure in court because of the difficulty in proving that you will be able to afford to pay off the mortgage if it is reinstated. This article assumes that you have already sought forbearance on the loan, which allows you to reduce your payments for a period of time until you can start paying in full.
Call your lender to talk about your forbearance options. You can also ask your lender about reducing your payments through loan modification, a process protected by the federal government under the Home Affordable Modification Program (HAMP).
Below are some additional ways to defend against judicial foreclosure.
State law specifies the procedure that must be followed to properly foreclose on a property. For instance, some states require that the borrower receive a notice of default prior to foreclosure to put the borrower on notice and, in some cases, give the borrower a chance to fix the default. Some states require that mortgage agreements be recorded in the county recorder’s office in order to be enforceable. Therefore, if the mortgage agreement has not been properly recorded, the court may allow foreclosure to be avoided.
Another option is to try and convince a judge that the terms in the agreement and circumstances surrounding the formation of the agreement are unconscionable. This requires more than just a one-sided deal and slight unfairness. The agreement must be grossly unfair to the point that the borrower has clearly been taken advantage of to the point that it “shocks the conscience” of the judge.
An example would be if the lender changed important terms in the agreement without the borrower knowing before signing it.
Under the Servicemembers Civil Relief Act (SCRA), service members on active duty can receive foreclosure protection under certain circumstances. The SCRA will at least allow you to postpone foreclosure until after you are done with active duty, allowing you time to hopefully catch up on your payments.
Another option would be to try for mortgage reinstatement or redemption. These options are statutory rights in many states.
Often, borrowers are required to exercise these rights before the foreclosure sale date, so if that date has passed, you may no longer have these options.
As this U.S. federal government article advises, check your state’s laws for any foreclosure assistance programs it may have. These programs give eligible borrowers money to help them cure their default and get back up on their feet.
Filing bankruptcy is often an excellent option and shouldn’t necessarily be viewed as a last resort. When you file bankruptcy an automatic stay goes into effect that halts any foreclosure action as well as other debt collection activities. You can consult a local bankruptcy attorney for help figuring out whether bankruptcy is right for you.
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