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How To Get More Time From The Bank To Stop Foreclosure

The most important factor homeowners in foreclosure need to remain aware of is how much time they have left to work out a solution, either to save the home or unload it with the least financial damage. The bank, working through its local attorneys, will typically attempt to push through the legal process as quickly as possible, in order for the lawyers to get paid and the bank to have an empty house they can sell on the market. Homeowners, on the other hand, would like more time and negotiating room in which to put together a more beneficial solution.

One of the easiest, most effective ways to get more time to stop foreclosure is just to ask the lender for help. A call to the mortgage company, followed by a written request, can postpone the initial filing of the foreclosure lawsuit, or even convince the bank to delay a sheriff sale just a few days before the property is scheduled to be auctioned. Since the lender is in control of the entire process of taking the house, it can dictate if and when it wants the courts or local government to proceed with certain aspects of the case.

However, simply flooding the mortgage company with delay requests, while effective once or twice, is not a long term solution to foreclosure. In fact, every time the homeowners ask for more time, they should be working on a specific plan that will help get the house completely out of the legal process and pay off the loan or pay back the arrears owed on the loan. Banks are much more willing to extend the time to save a house if it looks as if the borrowers are actively seeking out realistic methods.

Some banks, though, will eventually reach a breaking point at which they will no longer be willing to extend a sheriff sale or help out with any other solution the homeowners present. At this point, there may be two other ways that the borrowers can get more time to save the house, both of which involve entering the court system. The first way is to file bankruptcy, while the other involves defending the original foreclosure lawsuit.

Once homeowners file either Chapter 7 or Chapter 13 bankruptcy and include their house debt in the petition, the lender must cease all collection efforts. This includes halting the lawsuit at whatever point to which it has progressed, and canceling any scheduled foreclosure auction of the property. As long as the property is tied up in the federal bankruptcy court, the mortgage company has no other option other than to work with the trustee to attempt to collect on the mortgage debt. This can tie up the house for several additional months while the owners either negotiate down the debt or work on another final solution.

And while some homeowners may not wish to enter the local courts to defend against the bank’s lawsuit against them, this may be the single most effective way to get more time and prove to the bank that the owners are not willing to go down without a fight. Potential predatory lending or other lender misconduct may be enough to convince the bank that working out a mortgage modification or delaying the auction to help the borrowers sell their home will be less costly than litigation. As well, any motions or defenses the homeowners bring to the courts may take additional months or years to resolve, not to mention possible appeals.

Too often, homeowners in foreclosure are working on a solution that would stop the foreclosure process completely, but they are just running up against a deadline, after which the solution would no longer be viable. It is in these cases that borrowers should do everything they can just to get more time. The easiest way to do this is simply to request the bank to hold off on any more foreclosure proceedings, but bankruptcy and litigation are also quite effective at postponing an eviction. As always, though, it should go without saying that, unless the owners have some reasonable solution, constant delays will only prolong the inevitable.

By: Nick Adama

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How Long Does Foreclosure Take?

In Foreclosure

Power of Sale Foreclosure vs. Judicial Foreclosure, how fast can the bank foreclose?

First of all, most lenders will not begin foreclosure proceedings until a borrower is 3-6 months behind on their payments. Although missing a single payment is a default under the terms of most loan documents, lenders have neither the time nor the desire to foreclose on borrowers who have missed one payment. The process will be initiated when it becomes clear that the debt can no longer be serviced. This post deals with the timing of a foreclosure once your lender has started the process and has instituted a foreclosure action against your property.

The speed with which a bank can foreclose on a borrower varies based on state law. There are basically two different types of jurisdictions for foreclosure purposes: power of sale jurisdictions and judicial foreclosure jurisdictions. In over half the states, the prevailing method of foreclosure is non-judicial power of sale foreclosure. What does this mean? If you have entered into a deed of trust with your mortgage lender, your deed is held by a Trustee pending full payment of your note. In the event you fail to make your mortgage payments the trustee has authority to sell your home at auction. Power of sale foreclosure can occur much more quickly than judicial foreclosure because the trustee vested with the power of sale does not need court oversight to sell the property. The trustee will give Notice of a public foreclosure sale and then sell the distressed property to the highest bidder. A court will usually not oversee the process. If a default has occurred the trustee is permitted to go through with the foreclosure sale after a relatively short notice period (usually two to three months from the date foreclosure proceedings are instituted). If you live in a power of sale Jurisdiction, your mortgage lender can complete the foreclosure process in two to three months. Today, 29 states (Alabama, Alaska, Arizona, California, Colorado, the District of Columbia, Georgia, Hawaii, Idaho, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming) allow foreclosure by the power of sale.

Judicial foreclosure is available in every state and is the required method of foreclosure in many states. Judicial foreclosure jurisdictions require a court to oversee the foreclosure process. Like power of sale jurisdictions, all interested parties must receive notice of the foreclosure sale. Judicial foreclosure proceedings can take a year or more to be completed . The requirement that the lender foreclose through the court system slows down the process considerably. While either method of foreclosure can be successfully challenged by an attorney, the court oversight of judicial foreclosure allows more procedural leverage to slow down aggressive lenders.

It is important for consumers to understand that they have rights in the fight against foreclosure. Power of sale jurisdictions allow for your property to be sold outside of court supervision but they still require that you receive adequate notice of the sale and that your property be sold for a reasonable price. Hiring an experienced foreclosure defense attorney in a judicial foreclosure jurisdiction could buy you months while you fight back against the bank. Bankruptcy, although a last resort, will stop a foreclosure dead in its tracks due to the Automatic Stay that freezes all creditor collection actions the minute a case is filed. I have filed many bankruptcy cases for clients the night before their home was scheduled to be sold at auction and had the process stopped. Chapter 13 bankruptcy may allow you to stay in your home while getting caught up on mortgage arrearages that have spiraled out of control. You have options and there is help available, but remember if you are in a power of sale jurisdiction and have executed a deed of trust with your lender, the foreclosure process can be completed in a matter of months.

By: John Stewart

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