More tips from Alex Speak: One of the biggest mistakes you can make after getting served with foreclosure papers is to do nothing, figuring you’ll ‘just let the house go’. Not only is it probable you’ll lose your home, but the bank will most likely get a deficiency judgment against you; that is, a judgment awarding the bank money for the difference between what you owe on the loan, and what the house sells for after foreclosure.
Since you may owe more than your house is currently worth, you’re looking at a big judgment against you. Were you aware that in your state a Judgement of Deficiency may be good for twenty years? The bank’s going to make your life miserable for a very long time – taking money from your bank accounts, re-routing income tax refunds, and persuing any assets that you might accumulate.
What should you do? Either engage the services of a lawyer, or file an answer yourself. (a ‘hardship letter’ isn’t an answer!) When answering a complaint, the lawyers may admit that the borrower (you) owns the property, but deny the rest of allegations of the complaint. In their answer, lawyers also typically raise certain defenses, such as, since the original note has been lost, and the plaintiff (the company suing you) doesn’t have a complete copy of the original note, the plaintiff cannot maintain the foreclosure action.
For adjustable rate mortgages that have interest-only payment periods, and/or the option of making a variety of payments such as a minimum payment, interest only, or interest and principal, and/or have a prepayment penalty, many lawyers say in their answer that the loan violated state unfair and deceptive trade practices laws because the originating lender didn’t explain to the borrower that negative amortization and payment shock would result from the structure of the loan.
Those same lawyers also file a written request asking the court to refer the case to mediation. The advantage of mediation is that you get an opportunity to sit down with a representative from the lender who has the authority to settle the case without a foreclosure. Before going to mediation, you should know exactly which solutions are available to you. Do your homework. To find the best solution for you, make sure you research all of the options.
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