Essentially, a foreclosure sale involves the sale of the real estate at public auction. The proceeds of the sale are then applied against the debt owed on the mortgage. Any funds remaining after the mortgage (and the foreclosure costs) are paid will be transferred to the defaulting borrower. What happens when the proceeds of the auction sale are insufficient to pay off the mortgage and/or the foreclosure costs depends on the law where the property is located. Most people do not realize that they can stop foreclosure even if they stopped paying their mortgage. Many recent cases have been filed improperly and an experienced attorney can assist with the identification and filing of substantive and procedural defenses with the court and vigorously defend your case.
It is possible to completely Stop Foreclosure
Due to the lender's actions, omissions or other facts surrounding your case, you may be able to stop making mortgage payments and stay in your home while your attorney vigorously defends your property. This does not necessarily mean that you will not have to pay the loan back or completely Stop Foreclosure. It is possible to completely Stop Foreclosure if the bank or lender is in violation of the Florida Unfair Lending Act or other predatory lending practices. If the lender has committed such a violation, the entire principal and interest balance may be waived and the mortgage may be voided. This may not be relevant in your case. But, at the very least, a successful defense can do is buy you precious time to:
- Stay in your home
- Negotiate a mortgage loan modification with the bank
- Sell your home for a fair price
- Refinance your home at a fair rate
- Continue to collect rent on the property
- Apply for a Court Ordered repayment plan
- File a Chapter 13 or 7 Bankruptcy
When homeowners are faced with the reality of facing a potential foreclosure, many experience a state of paralysis. They don't know what to do. Selling the home may not be an option since the equity appears to have vanished. To fight foreclosure or not? That is the question. Clouding the answer is perhaps the biggest misconception, "Hiring an attorney is not a cost-effective option." If I can't afford to pay my mortgage, then how in the world can I afford to hire a competent attorney? And why should I, if I am upside down in my home? First of all, EVERYONE can and should hire an attorney to represent them in their foreclosure case. There are many competent attorneys who specialize in this area. Due to the growing number of these cases, many attorneys have become "experts" in this area. Due to the fact that most of these cases are very similar, many excellent attorneys have experienced staff and can offer extremely affordable payment arrangements. Most people don't know that once the foreclosure proceeding has started, the bank will not accept any future mortgage payments - doing so may adversely affect their ability to foreclose on your property. Furthermore, the bank pays any delinquent real estate taxes and the insurance on the property. In summation, once the bank files a foreclosure lawsuit, most of the homeowner's expenses are being paid by the bank (mortgage, taxes and insurance). However, as the legal owner of the house with full possession, you have all the rights associated with same including residing in your home, collecting rents on the property, etc. Imagine the "EQUITY" you can save/build, if you fight the foreclosure case for a year or more. The cost of qualified legal representation is a drop in the bucket compared to your typical home ownership overhead. Time is money and the real estate and financial markets are likely to turn around. The hiring of the right attorney will save you thousands of actual dollars, in addition to thousands in time value of money. It's really a no-brainer.
Foreclosure Defense Attorneys
Foreclosure is just a lawsuit brought by the lender to take back your home. Just like the lender, you have powerful rights. Rights that include forcing the Lender to prove their case which requires more than just saying you are behind on your mortgage. Lenders must take specific steps, in the correct order, with the correct timing, in order to have the right to foreclose. The Lender needs to not only prove that you owe them the money, they need to show how they calculated the amount due, and that they actually own the mortgage. Believe it or not, many times that is more easily said than done. If the Lender can’t prove the case, the foreclosure stops.
[Understanding the Foreclosure Process: Please note that much on this page is quoted from Mortgage Daily News and Bank Rate and direct links are provided to each upon request.]
The foreclosure process varies in every State and it's imperative that homeowners understand this process. One thing is for sure, time is NOT on your side. But, an educated consumer is always an informed consumer who can make a "good" decision based on facts and we try to educate you throughout this website.
Understanding the basic foreclosure timeline.
Foreclosure Time Line
Day 1 - You are just falling behind and you miss your first payment by a day. No penalties will be assessed at this time
Day 16-30 - A late charge is now assessed to your payment. Your Lender or mortgage servicer will contact you for an explanation and to try and resolve the situation from deteriorating further.
[Source Mortgage News Daily]
Day 45-60 - The servicer sends "demand" or "breach" letter to the borrower stating the mortgage terms that have been. The borrower is given only 30 days to resolve the delinquent amount.
[Source Mortgage News Daily]
[Source Bank Rate]
Day 90-105 - The servicer refers the loan to its loss mitigation department / foreclosure department and retains an attorney or other firm to handle the foreclosure proceedings. Depending on the state where the home is located, the servicer's representative may record a notice of default at the local courthouse and it will be published in the local newspaper.
[Source Bank Rate]
Day 150-415 – A notice of trustee Sale is filed and the home is scheduled to be sold at foreclosure sale or auction. This time range varies due to individual state laws and requirements."
"States with judicial foreclosures / where foreclosures are done via the court system, can sometimes extend this period to a year or more."
"A foreclosure is a legal event and there are benchmarks that must be met. Once the case is turned over to attorneys, the impending foreclosure must be advertised, usually in both the local papers and in the largest and closest metropolitan daily. The entire process can take a very long time from initial default to the actual public auction of the property. If a member of the military is an owner of the property, there are additional safeguards required by federal and in some cases state laws From the beginning of the process, however, the meter is running. The longer the foreclosure takes, the greater the debt that accrues and the larger the liability the homeowner has, something that will become critical down the road."