Foreclosure Law

What is Foreclosure Law?

Foreclosure law provides the means for a mortgage lender to take possession and sell a home when the borrower has defaulted on the loan. The money from the sale is used to pay off the balance of the loan, and the new buyer takes the home free of the mortgage. If the proceeds are not enough to pay off the loan, the borrower may be held personally liable for the difference, in addition to being forced out of the house. From the lender’s perspective, foreclosure is slow and expensive. Thus, the lender will usually be just as motivated as the borrower to see that the loan is paid on time and foreclosure does not become necessary.

To understand foreclosure law, it helps to consider the nature of a mortgage. Mortgages are used when potential homebuyers seek to borrow purchase money, or when homeowners with equity in their property want to borrow cash to make home improvements or for other purposes. In either case, a bank lends the money, and requires the borrower to sign a mortgage document giving the bank a security interest in the home. In other words, the home becomes collateral for the loan. If the borrower stops making the loan payments, the bank can take the collateral through the process of foreclosure.

Stopping Foreclosure and Keeping Your Home

The foreclosure process is handled differently in each state, but the end result is the same – the borrower loses all rights to the home. For borrowers with the desire and the means to stop the process, several options are available that will allow them to retain possession of the property. To begin with, prior to the time the bank sells the home at a foreclosure sale, borrowers always have the option of paying the full balance of the loan. This will extinguish the mortgage and the borrower will own the home free and clear. It may also be possible to pay only the missed payments and any penalties, thereby reinstating the defaulted loan and stopping the foreclosure.

Of course, borrowers facing foreclosure came to be in that situation for a reason, and likely do not have the funds to bring the loan current or pay it off altogether. These people may still be able to keep their home through forbearance. Forbearance means the lender agrees to suspend payments for a period of time. This can be useful to a borrower who is temporarily out of work, but it will not reduce the principal balance or avoid penalties and fees associated with the delinquency.

Loan modifications are another way for distressed homeowners to keep their property. A modification involves the lender agreeing to change the terms of the loan to make it more affordable for the borrower. These changes are permanent, and usually involve lowering the monthly payment amount by extending the length of the repayment period. In some cases, borrowers may even be eligible for a reduction in the principle balance of the loan. A number of government programs, including the federal Home Affordable Modification Program (HAMP), exist to aid borrowers by subsidizing modifications that meet certain criteria.

Options for Those Willing to Surrender their Home

In some situations, borrowers will not want to keep their home. This is often the case when the home is “upside down,” meaning the outstanding loan balance is greater than the market value of the property. Confronted with loan payments they know they can never afford, borrowers may simply be looking for a way to hand over the keys to the bank and walk away from the property. The best option for these people is usually a deed in lieu of foreclosure. Basically, the borrower signs over all interest in the home to the lender, in exchange for the lender ceasing the foreclosure process.

The Importance of Avoiding Default Judgment

While a deed in lieu of foreclosure can be an efficient way for a homeowner to leave a troubled home loan behind and start over, it presents the possibility of a deficiency judgment. This can be a dangerous trap for borrowers who are not familiar with foreclosure law or do not have an attorney to represent them. A deficiency judgment refers to the personal liability of a borrower for the unpaid balance of a home loan, even after the home has been foreclosed and sold.

Besides taking a security interest in the home, mortgage lenders require borrowers to sign a personal guarantee. This way, if the foreclosure sale does not bring in enough to satisfy the loan, the rest can still be collected from the borrower personally. For borrowers, this represents a worst case scenario, as they will continue to owe money even after the home has been lost. Fortunately, borrowers who hire an attorney to negotiate a deed in lieu of foreclosure will almost always succeed in getting the bank to waive its right to a deficiency judgment as part of the deal.

Retaining a Foreclosure Defense Attorney

If you are struggling to pay your mortgage, the best thing you can do is contact a foreclosure attorney. An attorney may be able to defend the foreclosure by finding discrepancies in the loan documents or other aspects of the bank’s case. To learn more about your options, schedule a consultation right away.


Know Your Rights!

  • Top Mistakes Made in Foreclosures

    Mortgage foreclosure is the process by which the bank takes your home for not paying your loan. Here are 10 common mistakes people make during a mortgage foreclosure.

Articles About Foreclosure

  • Can Storage Companies Remove My Belongings?
    When a person has more belongings than he or she can comfortably store in a home, he or she may take extra belongings to an off-site storage company. The circumstances about which the storage company can remove belongings are based on state law and the specific contract.
  • What Are the Advantages and Disadvantages of Joint Tenancy?
    Joint tenancy is one type of concurrent ownership in which two or more individuals own the property simultaneously. Joint tenancy provides a number of benefits to co-owners. However, it also poses certain risks.
  • New York Zombie Foreclosures On the Rise
    According to RealtyTrac, there were 16,700 zombie foreclosures in New York in 2014. That number has since risen by 54 percent. These homes are often the houses that bring a neighborhood's value down; the houses with unkempt lawns and boarded-up windows that are easy to ignore and forget.
  • Learn the Steps to Avoid Losing Your Home to Illinois Foreclosure
    If you are facing foreclosure, don't give up hope just yet. There are ways you can work to keep your home. Before signing away your deed or allowing the bank to foreclose on your house, contact an experienced foreclosure attorney to discuss the options that are available to you. Depending on your circumstances, keeping your home can be fairly simple or require a more complicated strategy.
  • Florida Homeowners and Investors Bracing for Next Huge Wave of Mortgage Foreclosures
    The next foreclosure epdimic is coming from hundreds of thousands of Home Equity Lines of Credit (HELOC)s that are coming due after their 10 year term.
  • Are Foreclosure Rates Beginning to Decrease?
    There have been various reports in the media indicating that foreclosure rates have fallen to pre-bubble crisis levels.
  • Reverse Mortgages and HECMs—What You Need To Know
    Reverse mortgages can be a good option for homeowners at or near retirement age in need of additional income. But there are strings attached. Read on to learn what you need to know before starting the process.
  • Real Estate Foreclosure in Palm Springs
    What is foreclosure? - To foreclose on property is for a creditor to assert a claim of right, given by the owner of property to a creditor, to transfer interest in property to the creditor in the event the present owner (borrower) fails to pay an obligation, usually created by a loan agreement or promissory note. In short, in most cases, it is when a lender takes property from its owner and sells it in order to satisfy an unpaid debt.
  • New Report: Mortgage Default Risk Remains High
    Mortgage default risk continues to plague the housing recovery. A new report issued by the American Enterprise Institute indicated that the national mortgage default risk remained high in March, even though it dropped slightly from February.
  • Know Your Rights Under the Home Equity Theft Prevention Act ("HETPA")
    The Home Equity Theft Prevention Act ("HETPA") became effective on February 1, 2007 and now governs certain sales of homes in foreclosure or default. If you are planning to sell a home in foreclosure or default, you should be aware of your rights under the Act, and know what to expect from a legitimate buyer. The Home Equity Theft Prevention Act was passed in response to recent scams which targeted homeowners in financial distress (often elderly or unsophisticated homeowners).
  • All Real Estate Law Articles

State Foreclosure Laws

Foreclosure Law - US

Organizations For Foreclosure Law

Contact a Lawyer

Find a Local Lawyer