Your home is where you are supposed to feel secure, but sometimes the worst can happen, and you receive a notice of default or non-judicial foreclosure. You want to save your home, but you don’t know your options or where to start. The foreclosure defense attorneys at O’Flaherty Law can help you. If you are facing a foreclosure, you do not want to put yourself at a disadvantage. O’Flaherty Law can offer a foreclosure attorney near you who can fight the foreclosure and, at the very least, buy you additional time to consider your options or return your loan to good standing.
If you are facing foreclosure, it is important to consult with a foreclosure defense attorney and try to save your home. A real estate foreclosure attorney from O’Flaherty Law understands the foreclosure process and can ensure every possible defense is utilized to increase the likelihood of you keeping your home. Do not sit back and do nothing or try to negotiate with your lender directly.
Covid-19 shouldn’t put your legal needs on hold. You can receive a consultation and most legal services without leaving your home. Our attorneys are happy to speak to you by phone, video conference, or email.
Whether from medical bills, mortgage payments, or over-extended credit card balances, debt can pile up quickly and threaten to smother you. It may feel like you have no options as the collection notices pour in. Escape debt and embrace your financial freedom.
When you are looking for a real estate attorney to represent you, selecting a highly experienced attorney with an excellent support team who can help you avoid costly legal real estate mistakes is important.
We will aggressively protect your rights and fight on your behalf to achieve an efficient and cost-effective favorable outcome no matter the legal issues, whether commercial litigation, fraud, defamation, negligence, etc.
Planning your estate is one of the most important legal steps you will ever take. The proper care and distribution of your property is an issue that you should not have to worry about. If you choose to do nothing, it could have a disastrous effect on the people you leave behind.
Dealing with a foreclosure is naturally a highly stressful and confusing time. You need someone on your side to ensure that you understand all the legal details and your rights as a consumer. O’Flaherty Law can provide the legal expertise and straightforward communication necessary to assist you through your foreclosure defense. You will have an entire team at O’Flaherty Law working towards your legal goals and supporting you during this time. The outstanding experience and support offered by the foreclosure prevention attorneys at O’Flaherty Law mean that you will be well informed on the status of your case and what each step in the process means for you.
The purpose of a consultation is to determine whether our firm is a good first for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. We take your legal matters very seriously, which is why with each consultation, we strive to ensure you feel confident about the future of your case.
You will be scheduled for an initial consultation with an O'Flaherty Law foreclosure defense attorney. Dependent on where the foreclosure is, your goals, and your options, your attorney will create a strategy for your foreclosure defense if you decide to work with O'Flaherty Law. Your foreclosure defense attorney will file any necessary paperwork and make court appearances on your behalf. Your attorney will also communicate with the attorney for the bank and look into all possible legal options in lieu of foreclosure. Your attorney will inform you of your case status at every major juncture so that you know what is going on and what decisions you want to discuss with your attorney.
Most foreclosure cases are fairly similar in how they proceed through the court system and what options are available to a consumer. Read on to find out most of the major parts of a foreclosure case that your attorney will handle for you.
If you have anything more than roughly 50k in assets you need some type of estate plan. You should also have a plan in place if you are married or intend to have children. One important factor to consider is that a good estate plan does not only deal with the transfer of assets when you pass away but also your financial and healthcare wishes should you become incapacitated and need someone to step in and make decisions on your behalf so the value of your physical estate is not the only consideration, you should also plan for illness of injury.
When you take out a loan to purchase a house you create an agreement called a mortgage. When you fail to make payments on the mortgage, the lender eventually utilizes a process known as foreclosure. Foreclosure is the lender taking the necessary legal steps to take the house back from the borrower and recoup the money it loans to the borrower. When the lender gets the foreclosure on the property, the lender then sells the property and recoups the funds.
When the party who pays child support experiences a change in circumstances child support will need to be recalculated and a modification ordered. The reasons for modification are typically that the party paying the support has received an increase in income either from their employment or sometimes after receiving an inheritance. On the other side of the coin, if the party paying child support is fired or experiences a decrease in income, they will also need to request a child support modification from the court or be in danger of accumulating child support arrears, which can be very difficult to recover from financially and comes with many potential penalties. Child support payments must be made in the same amount until the modification order is entered.
During “pre-foreclosure” the lender notifies you in writing that you are in default on your loan and that if you do not bring your account up to date, the lender will begin the foreclosure process. Your mortgage paperwork should clearly lay out what events will put you in default and what steps the lender is required to take under the agreement in order to properly notify you that you are in default. Different mortgage agreements offer different terms and conditions so it is always important to read carefully before signing. You should pay special attention to what the agreement states in regard to default and what actions the lender will take if a default occurs.
Once you have proper notice that you are in default on your loan, you may be able to remedy the situation by simply making the back-due payments or you may have to take additional steps in order to keep your home. Our experienced foreclosure defense attorneys will be able to look at your individual situation and provide you with a clear understanding of what the options are moving forward.
When a borrower is no longer paying their mortgage and the default on that mortgage reaches a certain value, the lender can file a complaint for foreclosure. This is known as a judicial foreclosure. Some states allow for a non-judicial foreclosure, which will be discussed below.
Judicial Foreclosure: A judicial foreclosure is what most people think of when they think of the foreclosure process. It is just as its title claims, a foreclosure by a judge. The process moves through the court system, creating a better chance for a borrower to avoid losing their home because the borrower can bring certain defenses, depending on their situation.
Non-judicial Foreclosure: A non-judicial foreclosure is tough on the borrower. It removes the court system from the foreclosure process and makes it more difficult for the borrower to slow down or stop the foreclosure. Generally, depending on what state you live in, the lender has to wait until you have been in default for 120 days before it begins the non-judicial foreclosure process.
Your loan terms and conditions should clearly state what constitutes a payment default. Generally speaking, a payment default occurs when you do not make the agreed-upon payment or payments on the dates that they are due, without reaching an agreement otherwise with the lender before missing the due date. Most lenders offer a grace period of two weeks for the borrower to make their payment. Still, the borrower should expect late fees to be assessed, compounding the problem and making the financial situation harder.
Before formal notice of default is sent to the borrower, the lender will attempt more informal means of resolving the issue, such as emails and phone calls. Generally speaking, a formal notice is sent via US Mail once the more informal options have been exhausted.
A lending agreement should clearly define proper notice and how the lender will notify the borrower that they are in default. A notice of default is not a foreclosure but precedes the foreclosure process if the default is not remedied. Depending on the laws of the state the foreclosure takes place, proper notice of default can vary. Suppose the state is a non-judicial foreclosure state. In that case, the lender might need to formally file a notice of default with the county recorder’s office to start the foreclosure process. If the state is a judicial foreclosure state, a notice of default is sent to the borrower. Then the lender still has to file a formal petition for foreclosure before starting the process.
A notice of trustee's sale is when the borrower has been in default for a certain period. The trustee's sale is typically set out for 90 days (about three months) to give the borrower some time to devise a solution for saving their home. The sale is similar to an auction. The borrower is allowed to bid on the home as well.
This process is the lender trying to recoup as much money as possible from the property they made the loan for.
A trustee’s sale is usually the second to last step in the foreclosure process in a non-judicial foreclosure state. The borrower is also allowed to attend the trustee’s sale and bid on their property in an effort to keep it. Notice for the trustee's sale goes out. You typically have to register to bid on a trustee’s sale. Sometimes a participation fee is required as well. Lenders like trustee sales because it offers the lender the greatest opportunity to recover all of the property's value..
A short sale is also something you see pop up in discussions about foreclosure law. A short sale is when the lender permits the borrower to sell the property for less than is owed on the property. Borrowers sometimes resort to the short sale process because it is less damaging to their credit than a foreclosure. The short sale cannot go forward without approval from the lender. If and when the lender approves a short sale, the short sale process can sometimes take up to a full year to complete.
Once the short sale is complete, the lender will still have what is known as a “deficiency” against the borrower. The lender can collect the deficiency after getting approval from the court. In order to collect on a deficiency judgment, the lender can put a lien on other property you own, garnish your wages, or even levy. Fortunately, the lender does not automatically get a deficiency; they have to go through the judicial process to get one, which gives the borrower (and their attorney) some room to negotiate.
A sheriff’s sale happens at the end of a foreclosure. It can also occur when a party owes back taxes or a money judgment. Things work a bit differently at a sheriff’s sale than at a trustee’s sale. A court must authorize and direct the sheriff to conduct the sheriff’s sale. The general public can bid on the property like a regular auction.
Depending on the applicable state law, the owner may be able to get their house back through a process called “right of redemption.” Right of redemption is where the borrower finds the money to pay the default on the mortgage and return to good standing. The borrower must exercise this right within the statutory period allowed by law in their state.
If you take out a HELOC or home equity line of credit on your home, that can also be foreclosed upon. A HELOC related foreclosure is really a worst-case scenario situation but it can happen. IF you secured a line of credit with a lien on your home, even if you own the home free and clear, the lender can attempt to get the loaned funds back by the foreclosure process. It would be a difficult gamble for the lender, as a HELOC can sometimes be considered a second mortgage if the primary mortgage is not paid off yet. If the home used for collateral is not paid off and the HELOC lender starts any foreclosure proceeding, the primary mortgage holder would be paid first and then the HELOC lender would get the surplus.
Another issue to note is that a HELOC loan is considered a “recourse loan,” which means that if the sale of home does not fully repay the loan to the HELOC lender, the HELOC lender can take action to recover the money from another asset in your name or even garnish your wages. The HELOC lender must first win a “deficiency action” against you and then seek to have the money judgment they would get enforced against you by the courts. An upside to a HELOC loan is that the lender typically tried to work out a repayment plan with you as opposed to engaging in costly litigation.
A HELOC or home equity line of credit-related foreclosure is a worst-case scenario, but it can happen. If you secured a line of credit with a lien on your home, even if you own the home free and clear, the lender can attempt to get the loaned funds back by foreclosure. It would be a difficult gamble for the lender, as a HELOC can sometimes be considered a second mortgage if the primary mortgage is not paid off yet. If the home used for collateral is not paid off and the HELOC lender starts any foreclosure proceeding, the primary mortgage holder would be paid first, and then the HELOC lender would get the surplus.
Another issue is that a HELOC loan is considered a “recourse loan.” That means that if the home sale does not fully repay the loan to the HELOC lender, the HELOC lender can take action to recover the money from another asset in your name or even garnish your wages. The HELOC lender must first win a “deficiency action” against you and then seek to have the money judgment they would get enforced against you by the courts. An upside to a HELOC loan is that the lender typically tries to work out a repayment plan with you instead of engaging in costly litigation.
In some cases, a former homeowner may choose to stay in their home even after the foreclosure has occurred and (if applicable) the statutory right of redemption period has passed. At this point, the lender may take steps to evict the former homeowner from the property. The eviction process is a separate lawsuit that the lender has to initiate. The lender must also provide the former homeowner with proper notice before the lender files the eviction lawsuit. In some states, this is referred to as a “notice to quit.” The eviction process may get the former homeowner a few more months on the property, allowing them some more time to find a new place to live, but it is a stressful period of time and not recommended.
Other states include eviction proceedings with the foreclosure process, with something called a “writ of possession,” which means that the former homeowner does not have extra time to find a new place to live. Whether by a formal eviction lawsuit or a writ of possession, if the former homeowner refuses to leave the property, the sheriff can come and force the former homeowner to leave.
We want you to be as informed as possible throughout your foreclosure case and will be available to you to answer all of your questions and concerns. However, we have found several topics that many clients always ask. The following are the most frequently asked foreclosure questions.
It depends. It is always an excellent idea to consult with an attorney experienced in foreclosure defense. Depending on where you are in the foreclosure process and the terms of your mortgage agreement, an attorney may be able to stop the foreclosure. They can negotiate an agreement buying you time to get up to date on your mortgage or possibly put you into bankruptcy, which could buy you some much-needed time to try and resolve the foreclosure.
The home buying process can be complicated even when you are not dealing with the potential pitfalls of foreclosure. Many people like to invest in real estate and buy homes in foreclosure cheaply, intending to flip the home for a profit. The house flipping trend has cost many people a lot of money. You are not required to have a lawyer to assist you if you wish to purchase a home in foreclosure, but it is always a good idea to at least consult with an attorney experienced in real estate law before making your move. Homes sold at foreclosure auctions and sheriff’s sales are sold “as is.” You can end up getting over your head financially if you do not make careful decisions, which an attorney can help you with.
The first step is to hire an attorney. Foreclosures are complex legal matters and not for the layperson. An experienced foreclosure defense attorney has the skill set and resources you need to either know if it is even worth fighting to keep the house or if your interests would be better served by pursuing an alternative legal route.
Costs vary from attorney to attorney. The more experienced an attorney is, the more they tend to cost. It can also depend on the complexity of your foreclosure. Still, the overall cost will depend on your case and how long it takes to resolve the issue or issues. A frank discussion with the proposed attorney prior to signing a fee agreement will give you a better idea of what to expect.
The foreclosure process must occur in a court with a judge granting the foreclosure. Before signing any mortgage agreement, you should check to see what your state requires, as different states follow one process. This way, you will have a complete idea of what could happen if you find yourself unable to pay your mortgage.
Some states allow for a non-judicial foreclosure that takes place out of court, which speeds up the entire process and leaves the borrower with fewer options. If you live in a non-judicial foreclosure state, it might be wise to meet with a foreclosure defense attorney if you think you will be unable to make your mortgage payments due to any financial hardship to discuss your options.
When you file for bankruptcy, the bankruptcy court issues an automatic stay on all collection activities, including the foreclosure process. However, the stay does not mean that the foreclosure cannot move forward at some point under certain conditions. Filing for bankruptcy is not a cure for foreclosure. It is more like a temporary bandage. This “bandage” could be extremely helpful, though. It could buy you time to continue to negotiate a new deal with the lender.
You should be aware that even though an automatic stay is in place, the lender can still try to put your home up for sale once the applicable notice period has passed, or the lender could also ask the bankruptcy court to lift the stay regarding the home loan. A good foreclosure defense attorney can assess the likelihood of success when it comes to filing for bankruptcy to stop a foreclosure.