Things always change, they never stay the same, that's life. Sometimes we are prepared for them and sometimes they are unexpected. What happens when the unexpected is a hardship like illness or suddenly finding yourself without gainful employment. A variety of circumstances can crop up that make it difficult for you to keep up with your mortgage payments. While foreclosures and short sales are options, the premier option for struggling homeowners who want to keep their home are loan modifications. Loan modifications are a change in one or more of the terms of the original loan.
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You’ve been served and you weren’t playing basketball. If you’re a couple months behind in your mortgage, you probably knew it was coming. You asked for more time to pay the back mortgage payments. Instead, your lender starts threatening you with the F-word. You have two options when facing foreclosure: let your lender win or hire a foreclosure defense attorney and fight.
The Judicial Foreclosure Process
Whether you live in New York, Illinois, Florida or New Jersey, foreclosures are judicial, which means the lender must file a lawsuit in state court. The court allows a lender to start the foreclosure process after you miss three payments. However, most lenders wait for you to become more than three months behind. How nice of your lender, right?
You are an attorney or you currently work or have worked for a bank and know their guidelines. You already know how many documents will you need to submit to your bank for a loan modification. **Free Amerihope Alliance Legal Services Document Checklist**
You know the general foreclosure laws and procedures in your state. For example in Florida, foreclosures are judicial, which means the lender must file a lawsuit in state court. The lender starts the foreclosure by filing a complaint with the court and having it served to the borrower, along with a summons. If you lose the case your house will be sold to satisfy the debt.
You don't need a foreclosure attorney to prove that the foreclosing party doesn't own your loan. In other words you know that your loan was bundled and securitized. Which means that in a process called securitization, your loan and other loans (includes both the promissory notes and the mortgages) with similar qualities are pooled, and then sold in the secondary market, often to a trust. Basically, securitization takes individual mortgage loans, bundles them into a package, and turns them into marketable securities (called “mortgage-backed securities”) that can be bought and sold. With that being said you believe you have a defense based on the fact that the foreclosing party can't prove that it owns your loan.
If you are struggling to pay your mortgage, it's encouraged that you speak with an experienced and knowledgeable foreclosure defense attorney who can properly inform you of the best solutions for your specific situation. Not to mention that on average, a defended foreclosure usually takes anywhere from one to two years or longer.
Each foreclosure case is different and has complicated nuances that can ultimately make or break the case. For example if you have been served with a foreclosure lawsuit in Florida and New York you have 20 days to file a proper legal response in court. In Illinois, you have 30 days to reply. In New Jersey, you have 35 days. In your reply you can:
- Accept the Claim -OR-
- Dispute the Claim – Perhaps your loan servicer didn't follow proper foreclosure procedures or the foreclosing party can’t prove it owns your loan. Maybe your loan servicer made a serious error with your account such as misapplying funds, failing to credit payments to the account, or charging unreasonable and non-allowable fees. Or you’re in the military and as an active military service-member you have some special protections against foreclosure and have certain rights under the Service-members Civil Relief Act (SCRA). -OR-
- Claim Affirmative Defenses – Which means that without denying responsibility, you may claim that the foreclosing bank had contributing negligence or perhaps there is an expiration of the Statute of Limitations.
Failure to file a legally satisfactory Answer could result in default being entered against you and not being able to fight the foreclosure.
The Attorney’s Role
Right Instead of Wrong - How Important Are High Ethical Standards?
The first two definitions found on Dictionary.com are:
- Pertaining to or dealing with morals or the principles of morality; pertaining to right and wrong in conduct.
- Being in accordance with the rules or standards for right conduct or practice, especially the standards of a profession.
Here at Amerihope Alliance Legal Services we believe that treating our clients and others in the communities we service with the highest of ethics, professionalism, and sensitivity are very important. Which is why we are very proud to be honored with the 2015 Highest in Ethical Standards and Professional Excellence Award from The Legal Network. These awards are substantiated by the stellar reviews from thankful clients.
The awards honor attorneys who, as a representative of clients, perform various ethical and professional functions. Those functions include:
Providing clients with an informed knowledge of the their legal rights, obligations and explaination of their practical implications.
Asserting the client's position under the rules of the adversary system.
Negotiating results advantageous to the client but always within the requirements of honest dealing with others.
Providing clients with an informed knowledge of the their legal rights, obligations and explaination of their practical implications.
Asserting the client's position under the rules of the adversary system.
Negotiating results advantageous to the client but always within the requirements of honest dealing with others.
All listed above are fundamental, necessary, and vital characteristics that an attorney needs to practice, advocate, and live by in order to win this distinguishing award.
If you have gone through foreclosure before know that yes, it is possible. Known as "Boomerang Buyers" those previously foreclosed on are starting to join the market and are able to purchase a home. However, there are waiting periods for most of the common loan programs. Depending on the type of loan you are applying for here's how long you must wait before being eligible for a home loan again:
2015 FHA Mortgage Guidelines
| Bankruptcy Chapter 7 | 2 Years From Chapter 7 Bankruptcy Discharge Date |
| Bankruptcy Chapter 13 | 1 Year From Chapter 13 Bankruptcy Discharge Date |
| Foreclosure | 3 Years From After the Sale/Deed Transfer Date |
| Short Sale or Deed in Lieu | 3 Years After the Sale Date of Your Foreclosure |
Credit with a minimum of 640 credit score and proof of good payment history. If you defaulted on a FHA loan, and you are trying to apply for a new FHA loan, the waiting period will be calculated from the date the mortgage insurance was paid by FHA on the defaulted loan.
You are up to date with your mortgage payments and bills - congratulations. Think that your neighbor's foreclosure isn't going to affect you? Think again.
THE EFFECTS OF FORECLOSURE:
Emotional Well-Being Distressed - According to Harris Interactive Poll of persons going through foreclosure 38% are Scared, 35% are Depressed, 9% are Angry, 8% are Embarrassed, and 9% None of these.
Increase of Violent and Petty Crime - According to Neighbor Works America, homes in foreclosure that become vacant provide sites for crime. Lin Cui of the University of Pittsburgh Department of Economics study showed that the rate of violent crime within 250 feet of the property is 15% higher than the rate in the area between 250 and 353 feet from the property.
What does the acceleration of Florida's five year statute of limitations mean? It means that the plaintiff within 5 years after the mortgage loan goes into default is the time that they can sue for foreclosure. But let's say that the court dismisses the action without prejudice. The plaintiff can then pick a more recent breach date (time that loan is in default) and restart the limitation clock. Only if the plaintiff does not file a new action within 5 years of the most recent breach will the Statute of Limitations prohibits the court from hearing the case. However, the 3rd District Court of Appeal in Florida has, since January 2015 a unique yet narrow interpretation stemming from the ruling in Deutsche Bank Trust Company Americas, v. Harry Beauvais, et al., No. 3D14-575 where it deems basically that a dismissal with prejudice merely resets the clock. Please note that there are 5 District Court of Appeals in Florida. Therefore, the jurisdiction your home is in is also a factor.
It is important to know that:
- Acceleration is a term in a loan agreement that requires the borrower to pay off the loan immediately under certain conditions.
- The five year Florida statute of limitations period begins when the lender files its first action.
- Only valid mortgage notes can go into foreclosure.
- Only a dismissal with prejudice stops the clock for purposes of the Statute of Limitations.
You've gone through the ordeal and sometimes incredibly long process of settling your debt. Whew, glad that's over. Now on to rebuilding your finances, right? Not quite, when you go through a debt settlement there are tax consequences.
Surprise, Surprise! You Now Have to Report Phantom Income
Many consumers are surprised that the IRS and their state government considers debt forgiven as income.
Today, millions of Americans struggle to pay their mortgage payments. Whether it's because of a change in income, lost job, an injury or illness, or because of a costly divorce; these financial burdens can be overwhelming. In any case, the goal is for you to relieve yourself of the gargantuan financial burden with the least repercussions. As a result, a growing number of homeowners consider a loan modification vs. short sale. While each of these solutions have challenges, both are better than losing your house to foreclosure. Continue reading to learn more about loan modification vs. short sale.
