WHAT IS A FORECLOSURE?
In the State of Florida, FORECLOSURE is a legal process whereby a lender to seeks to terminate the owner’s interest in a property after a loan has been defaulted. When the process is completed, the lender may sell the property (at a foreclosure sale/auction) and keep the proceeds to satisfy its mortgage and any legal costs, as determined by a Court’s final judgment. Surprisingly to some, the whole legal process could take as little as a few weeks, if not defended.
After the foreclosure sale/auction, any excess proceeds may be used to satisfy other liens or return to the borrower, if proper claim is made. On the other hand, should the proceeds fail to satisfy the judgment then the borrower may be liable for the “deficiency” balance of the difference.
WHAT CAN I DO TO STOP FORECLOSURE?
As we explained above the law requires that a Defendant defend a complaint for foreclosure by “responding” within twenty (20) calendar days. It is important to note that it is calendar days (not workdays). Many fail to respond under the presumption that the result is inevitable, or that a defense would be “too expensive”. Another common mistake is to assume that telephonic communications with representatives of the opposing party are sufficient. It is not, as explained in your summons. Please read the summons served upon you. The legal “response” to the court is technical in nature, generally called a pleading, and must be in writing.
We can help you through this process in an affordable way. Please call us so we can review our fees and how our defense may be your “cheapest” option available to you.
Failure to respond (or answer) will result in a Default Final Judgment against you, without further notice. By law, the corresponding sale date would be set as soon as a minimum of three (3) weeks after entry of judgment. If the response is properly filed, you as borrower, would achieve additional time within which to attempt to resolve your matter, and/or simply allow you the luxury of time to plan your next move. We have handled these types of matters for our clients for nearly twenty (20) years.
What are my options? – With a defense you may protect your property for some time while you look for solutions. Many people are unaware of the fact that while you are defending your foreclosure lawsuit you preserve all of your of “ownership”. In other words, as owner while defending your foreclosure you can still reside at the property, rent it ( and collect rents), or attempt resolution with the lender (such as short sales, modifications, etc.). In addittion to your legal defense we can assist you with these efforts as well. Our firm is also experienced in the handling of any bankruptcy matters should that be necessary to protect you.
The banks have their attorneys, you should too.–However, without a defense of the lawsuit your efforts to seek out solutions will be impeded by the lack of the “luxury” of available time. Banks will typically take anywhere from several weeks to several months to make their decisions in efforts to resolve these cases. The foreclosure process could take less time.
Unless the bank gives you written confirmation that they are putting the legal process on hold while they are “talking” to you they are typically moving the foreclosure case forward. Therefore your legal defense is important to protect your ownership interest while you work on a solution. Remember once the property goes to a foreclosure sale the property is no longer yours. So your efforts would have been wasted if you run out of time. Our lawyers will assist you in assuring such time.
The current crisis – With unemployment figures reaching a 25-year high, the declining economy continues to impact hundreds of thousands of families each month, struggling with their mortgage. According to RealtyTrac, 303,410 foreclosure notices were served on properties in the month of December alone. This followed the 2,854,396 foreclosure filings throughout all of 2008.
As stated above, options do exist that can prevent the trauma of losing their home or facing long-term financial loss.
Short sales, are an alternative to foreclosure for struggling homeowners who do not want to stay in their homes but would also like to lessen the potential financial damage that a foreclosure could cause on their credit rating. If you or someone you know are looking for a “short” way out of a mortgage, keep reading and find out if a short sale is a feasible option. A short sale is an agreement from the lender(s) to allow the homeowner to sell the property for less than what is owed on the mortgage(s). An example would be an agreement to allow a sale of the home to take place for $175,000 when $300,000 is actually owed on the property.
It’s important to understand that you’re not alone, and that just because you’re struggling now doesn’t mean you won’t be able to recover in the near future. Before choosing to attempt a short sale, it’s important to ask yourself if staying in your home is an option you’d like to explore, because there are opportunities, including a loan modification that may be a better path for some struggling homeowners to pursue.
A loan modification would allow the homeowner, to renegotiate the terms of their existing mortgage(s) to a more affordable monthly payment(s). This can be accomplished in a number of ways that bring about both temporary and permanent solutions but ultimately allow the homeowner to keep their home.
If you think that a change in your mortgage terms, like a lower rate or lower monthly payments, might help you make it through this rough patch, it’s important to communicate with your lender, even if you’re several months behind in your payments. Many lenders have reported that in many cases where a homeowner is delinquent on his or her mortgage, they have been unable to reach the owner to discuss any options. Picking up the phone and placing a call is always in your best interest. We can assist you in this stage. We are currently handling many of these matters for clients with similar issues.
For a lender to consider a short sale, there are a number of factors that the lender will take into consideration before an approval can be secured, including:
- Current hardship, which can include a change of income due to job loss, loss of hours or salary reduction, illness, death of a wage earner, or a change in marital status.
- The property is “upside down,” which means the house is worth less in today’s market than what is owed.
(It’s important to note that, unlike a loan modification, a homeowner does not have to be delinquent to be considered for a short sale. However, a hardship should be demonstrated showing that the homeowner would not be able to remain current on the mortgage in the future due to mounting financial obligations.)
Why would a lender agree to sell your home at a loss? — Well, in many cases, the foreclosure process results in a losses for the lender. On a short sale or loan modification, however, these losses can be reduced, in many cases. (For example, a foreclosure on a $300,000 home could cost the lender up to $120,000 or more in losses, where they might only lose $60,000 by working with the borrower). Add to that the record losses incurred on other foreclosures, and it’s clear why lenders, in many cases, prefer to negotiate a solution.
According to Fannie Mae, one of the largest mortgage insurers in the country, a foreclosure on your credit record will likely mean it will be between 3 and 5 years before you’re able to secure a new mortgage. The typical timeframe to buy a new home with a short sale on your record, however, is only two years.
A short sale also has a lesser impact to your FICO score compared to a foreclosure, which is very important for obtaining future credit from everything including automobiles and consumer credit to getting reconnected with local utilities and cell phones services.
When choosing a realtor look at the current inventory of listings the agent represents and ask:
- How many of the properties are currently short sale properties?
- Does the agent have testimonial letters from short sale sellers?
- If an agent says they have sold a number of short sale properties, how many of the transactions were listings sold, not just where they had the buyer.
The next step is to price the house properly, according to the market. While many buyers would love to “steal” your property for the lowest price possible, remember that the lender is already going to incur a loss and they are not interested in losing more than they have to.
The last step is to be prepared for challenges in both the short sale process and in the market place. Remember, you have a lot of competition out there and getting a property sold can be tough, especially in a buyer’s market. However, choosing the right attorney and setting the right price can assist you in not only selling it but also in minimizing the stress of having to deal with the lender directly. We are happy to assist you in alleviating pressures associated with this process.
Be aware that, in some cases, not all, a lender will agree to a certain price, but only if the seller agrees to accept a promissory note for some amount of the deficiency – that means money that you will be responsible for paying back. In some cases, lenders ask that sellers pay up to $20,000. However, while early last year the interest rate for these notes was in the range of 4% to 8%, lately lenders have also been extending offers with 0% and terms of repayment up to ten years.
We can help you in trying to avoid paying back any of the shortages, or if in your best interests, and unavoidable, securing the best terms.
START THE PROCESS
The first step is to contact your lender and seek their assistance with the help of an experienced professional. An attorney who is skilled at handling these matters will not only minimize negotiation time, he or she can also help allowing you the luxury of time often necessary to achieve maximum benefits.
Call us for a free initial telephone or office conference. One of our lawyers would be happy to assist with your questions via the “contact us” link on this website.