What You Can Do to Stop Foreclosure of Your Real Estate - Real Estate

What You Can Do to Stop Foreclosure of Your Real Estate   by John Harris

in Real Estate    (submitted 2006-09-24)

You have received a notice of foreclosure on your real estate. It may seem hopeless, but the last thing you should do is give up. Many people encounter life-altering events that interfere with their ability to pay their debts. Usually the last payment to be late is the mortgage, but it happens. Too many late mortgage payments mean a possible foreclosure.

First and foremost, lenders do not want to foreclose on your real estate. They are not in the real estate business and are willing to work with homeowners. If you have not been able to reach a solution with your lender or you have ignored the lender's letters and phone calls, then foreclosure is their only option.

In the state of California, there are two types of real estate foreclosures -- judicial and non-judicial. A judicial foreclosure is granted by a court to a lawsuit brought by the lender against you, and is necessary when a "power to sale" clause was not included in the mortgage contract. Since commercial lenders usually include the clause, which grants them the right of non-judicial foreclosure, the mortgage contract you signed automatically gives them the power to seize your real estate in order to recoup their losses.

With the non-judicial foreclosure, you usually have 120 days to redeem your real estate before it is sold. With a judicial foreclosure, your real estate is auctioned off immediately to the highest bidder.

Under the judicial foreclosure, you may seek a deficiency judgment to recoup some of your losses on the seizure and sale of your real estate. Under some circumstances, you have up to one year to redeem your property. Under the non-judicial foreclosure, you have no rights of redemption nor can you seek a deficiency judgment.

So, your best bet is to do something before your real estate is seized and sold. Here are some ideas:

1. Speak to a HUD-approved counselor, especially if you have not kept in contact with your lender or you wish information before contacting them again. A counselor can help you determine what options may be available to you, as well as help you negotiate with your lender to work out a repayment program. To find a counseling agency in your area, call HUD at 1-800-569-4287.

2. A reinstatement may be possible, if you can promise to pay a lump sum to bring your payments current by a specific date.

3. Forbearance allows you to delay payments on your real estate for a short period, but you must be able to bring the payments current again by a specific date. Reinstatement generally is used in combination with forbearance.

4. A repayment plan is another option. It is used for homeowners who are behind in their mortgage payments, they can now begin making payments on time, but they do not have the resources to catch up the past due amount in a lump sum. Usually a lender adds a portion of the past due amount to a specified number of payments in order for you to catch up.

5. Rather than a repayment plan, your lender may agree to a mortgage modification. There are two possibilities here -- (1) add the past due amount to your existing real estate loan and finance it over a long term, or (2) if you need the payments reduced, extend the length of the loan in addition to adding the past due amount.

6. Selling your real estate is another option, if all else fails. Ask your lender, however, if they will put the real estate foreclosure on hold to give you time to sell. Otherwise, the public will learn through their realtors about the foreclosure, and you will not get a very good price for the real estate. If you must sell quickly, this also can lower your sale price.

7. Called a deed in lieu of foreclosure, you may be able to deed the real estate over to the lender. This forgives your debt to the lender and has less of a negative effect on your credit rating than a foreclosure.

8. Veterans and military personnel have some extra alternatives. First, contact your VA loan representative for counseling. Active duty personnel may be able to stop foreclosure under the Soldiers and Sailors Civil Relief Act, and may be eligible for a reduction in their interest rate. Additionally, veterans may be eligible for "workout" programs (options to resolve the foreclosure) under FHA, VA and some conventional real estate loans.

9. If procedural errors were made in the lender's foreclosure or in the original real estate loan origination, you may consider filing a lawsuit to enjoin or stop the foreclosure. Consult with an attorney in this instance.

10. Bankruptcy is a temporary solution, since it will stop the foreclosure for a short period only. It may give you some leverage in resolving the situation. Again, consult with an attorney.

Whatever plan you consider to stop the foreclosure of your real estate, you must put the plan into action, contact the appropriate people, and provide any requested information to the lender and/or its trustee (representative). Do not take a "wait see" attitude. Also, put everything in writing. If you have a phone conversation with your lender or the trustee, follow it with a letter reiterating the important points (say you want to ensure you understood the conversation correctly). Finally, follow through on your promises -- you will not get a third chance.