Residential Property Foreclosure
When mortgage borrowers fail to make their monthly payments as agreed upon, a lender may seize their property and sell it to a new buyer to help recover the mortgage balance. This is called a foreclosure Foreclosures occur due to non-payment, and though the process and timelines vary by state, the end result is the same: The mortgage borrower loses his or her home. Once the lender takes control of the property, it can sell it off to make up for financial losses on the home. Investors and consumers can purchase these homes—often at auctions or directly from the bank or government agency that owns them.
Why Foreclosures Happen
Foreclosures, at their most basic, occur because the homeowner has failed to make agreed-upon payments with their mortgage lender. The reasons behind this non-payment can vary. Sometimes, job or income loss is the culprit; for other borrowers, medical bills or credit card debt made it impossible to stay afloat. In some cases, it may be due to bankruptcy, divorce, disability, or other personal or financial issues.
Pros & Cons of Foreclosed Property
• May be priced lower than other homes on the market
• Properties are often poorly maintained or in disrepair
• Sellers are often unwilling to make repairs
• Previous homeowner may take the home back, in some cases
• Could require significant amounts of cash if purchased at auction
• No record of property repairs and maintenance
Most buyers consider buying a foreclosed property to save money. Though not all bank-owned and foreclosed properties are a bargain, many are priced lower than market value due to their condition or the lender’s need to recoup their financial losses quickly. The Department of Housing and Urban Development (HUD), for example, even has homes listed at $1. Buying a foreclosed property may allow you to purchase a home you might not otherwise have been able to afford—perhaps one in an in-demand area or with more square footage than you budgeted for.
That’s about where the perks end, though. Foreclosed properties often come in poor condition and require many repairs—repairs the seller is typically unwilling to make (the majority are sold as-is). Additionally, you may not be able to finance the purchase via a traditional mortgage loan, especially if you buy it at auction. In most cases, property auctions require all-cash bids.
Finally, there are concerns regarding the previous homeowners. These include:
• Redemption periods. Many states have what’s called a “right of redemption” period, which allows the homeowner to catch up on payments and take back his or her property.
• Squatters. If the previous homeowner (or anyone, for that matter) is squatting in the home, it may be difficult and time-consuming to remove them.
• Lack of maintenance records. Because the previous homeowner is not directly involved with the sale, it can be very difficult to know what repairs and maintenance have been done to the house before you move in. Banks don’t have a record of this type of upkeep.
Stages of Foreclosure
The actual foreclosure process that a lender must go through to seize a property varies by state. In some places, foreclosures must advance through judicial proceedings before the home can be seized. In others, there are non-judicial options. Legally, a foreclosure cannot be initiated until a borrower is at least 120 days behind on their mortgage payments.
How to Negotiate With Sellers
When buying a foreclosure, you’re often purchasing from a large financial institution like a bank or private lender. Because of this, offers usually require multiple approvals and may take longer to move through the pipeline. You can generally expect negotiations to be slower and more difficult than they would be with a traditional seller. Additionally, banks are looking to recoup as much of their losses as possible. As such, they’ll usually present a counteroffer during negotiation which, again, must be approved by several people. When purchasing in a traditional home sale, you can include a home inspection contingency and negotiate on repairs and pricing based on the inspection’s findings. When buying a foreclosed property at auction, individual buyer contingencies (and thus the negotiations based on them) are not allowed. Your best bet for negotiating a foreclosure purchase is to engage a real estate agent—ideally one with foreclosure experience. He or she will be able to help you craft a competitive offer based on comparable sales and market conditions.
Phases Of A Foreclosure
Phase 1: Payment Default
A payment default occurs when a borrower has missed at least one mortgage payment. The lender will send a missed payment notice indicating that they have not yet received that month’s payment. Typically, mortgage payments are due on the first day of each month, and many lenders offer a grace period until the 15th of the month. After that, the lender may charge a late payment fee and send the missed payment notice. After two payments are missed, the lender may send a demand letter. This is more serious than a missed payment notice; however, at this point, the lender may be still willing to work with the borrower to make arrangements for catching up on payments.
Phase 2: Notice of Default (NOD)
A notice of default is sent after 90 days of missed payments. In some states, the notice is placed prominently on the home. At this point, the loan will be handed over to the lender’s foreclosure department in the same county where the property is located. The borrower is informed that the notice will be recorded. The lender will typically give the borrower another 90 days to settle the payments and reinstate the loan. This is referred to as the reinstatement period.
Phase 3: Notice of Trustee’s Sale
If the loan has not been made up to date within the 90 days following the notice of default, then a notice of trustee’s sale will be recorded in the county where the property is located. The lender must also publish a notice in the local newspaper for three weeks indicating that the property will be available at public auction. All owners’ names will be printed in the notice and in the newspaper, along with a legal description of the property, the property address, and when and where the sale will take place.
Phase 4: Trustee’s Sale
The property is placed for public auction and will be awarded to the highest bidder who meets all of the necessary requirements. The lender (or firm representing the lender) will calculate an opening bid based on the value of the outstanding loan, any liens, any unpaid taxes, and any costs associated with the sale. When a foreclosed property is purchased it is up to the buyer how long the previous owners may stay in their former home. Once the highest bidder has been confirmed and the sale is completed, a trustee’s deed upon sale will be provided to the winning bidder. The property is then owned by the purchaser, who is entitled to immediate possession.
Phase 5: Real Estate Owned (REO)
If the property is not sold during the public auction, the lender will become the owner and will attempt to sell the property on their own, through a broker or with the assistance of a real estate owned asset manager. These properties are often referred to as “bank-owned” and the lender may remove some of the liens and other expenses in an attempt to make the property more attractive.
Phase 6: Eviction
The borrower can often stay in the home until it has sold either through a public auction or later as REO property. At this point, an eviction notice is sent demanding that any persons vacate the premises immediately. Several days may be provided to allow the occupants sufficient time to remove any personal belongings, and then typically the local sheriff will visit the property and remove the people, and any remaining belongings. Any belongings may be placed in storage and can be retrieved at a later date for a fee.
Throughout the foreclosure process, many lenders will attempt to make arrangements for the borrower to get caught up on the loan and avoid foreclosure. The obvious problem is that when a borrower cannot meet one payment, it becomes increasingly difficult to catch up on multiple payments. If there is a chance that you can catch up on payments—for instance, you just started a new job following a period of unemployment—it is worth speaking with your lender. If a foreclosure is unavoidable, knowing what to expect throughout the process can help prepare you for the six phases of foreclosure.
Why Foreclosures Occur
When you buy expensive property, such as a home, you might not have enough money to pay the entire purchase price at once. However, you can pay a small percentage of the price up front, usually anywhere from 3% to 20% of the price, with a down payment, and borrow the rest of the money (to be repaid in future years). However, the rest of the money may still amount to hundreds of thousands of dollars, and most people don’t earn anywhere near that much annually. Therefore, as part of the loan agreement, you will agree that the property you’re buying will serve as collateral for the loan. If you stop making payments, the lender can foreclose on the property—that is, repossess it, evict you, and sell the property used as collateral (in this case, the home) in order to recover the funds they lent you that you cannot repay. To secure this right, the lender places a lien on your property. To improve their chances of recouping the money that they lend, they (usually) only lend if you’ve got a good loan-to-value (LTV) ratio, a number that represents the risk that the lender will take in granting someone a secured loan, such as a mortgage. To calculate the ratio, the lender divides your loan amount by the value of the home and then multiples the result by 100 to get a percentage. Lenders view an LTV ratio of 80% or less to be ideal. If you have an LTV ratio that exceeds 80%, you will generally require Private Mortgage Insurance (PMI), which can add tens of thousands of dollars to the amount you pay over the loan term.
How Do Foreclosures Work?
Foreclosure is generally a slow process. If you make one payment a few days or weeks late, you’re probably not facing eviction. However, you may face late fees in as little as 10 to 15 days. That’s why it’s important to communicate with your lender as early as possible if you’ve fallen on hard times or expect to in the near future—it might not be too late to avoid foreclosure. The foreclosure process itself varies from lender to lender and laws are different in each state; however, the description below is a rough overview of what you might experience. The entire process could take several months at a minimum. You will generally start to receive communications as soon as you miss one payment, and those communications might include a notice of intent to move forward with the foreclosure process. In general, lenders initiate foreclosure proceedings three to six months after you miss your first mortgage payment. Once you’ve missed payments for three months, you may be given a “Demand Letter” or “Notice to Accelerate” requesting payment within 30 days. If, by the end of the fourth month of missed payments, you still have not made the payment, many lenders will consider your loan to be in default and will refer you to the lender’s attorney. This is when things get critical.
Consequences of a Foreclosure
The main outcome of going through foreclosure is, of course, the forced sale and eviction from your home. You’ll need to find another place to live, and the process could be extremely stressful for you and your family. How foreclosures work also makes them expensive. As you stop making payments, your lender may charge late fees, and you might pay legal fees out of pocket to fight foreclosure.9 Any fees added to your account will increase your debt to the lender, and you might still owe money after your home is taken and sold if the sales proceeds are not sufficient (known as a “deficiency”). A foreclosure will also hurt your credit scores. Your credit reports will show the foreclosure starting a month or two after the lender initiates foreclosure proceedings, and it will stay on the report for seven years. You’ll have a hard time borrowing to buy another home (although you might be able to get certain government loans within one to two years), and you’ll also have difficulty getting affordable loans of any kind. Your credit scores can also affect other areas of your life, such as (in limited cases) your ability to get a job.
How to Avoid a Foreclosure?
The act of taking back your home is the last resort for lenders who have given up hope of being paid. The process is time-consuming and expensive for them (although they can try to pass along some of those fees to you), and it is extremely unpleasant for borrowers. Fortunately, you can follow some tips to prevent foreclosure:
• Keep in touch with your lender. It’s always a good idea to communicate with your lender if you’re having financial challenges. Get in touch before you start missing payments and ask if anything can be done. And if you start missing payments, don’t ignore communication from your lender—you’ll receive important notices telling you where you are in the process and what rights and options you still have. Speak with a local real estate attorney or HUD housing counsellor to understand what’s going on.
• Explore alternatives to keep your home. If you know that you won’t be able to make your payments, find out what other options are available to you. You might be able to get help through government foreclosure-avoidance programs. Some lenders offer similar programs to those willing to fill out a mortgage assistance application. Your lender might even offer a loan modification that would make your loan more affordable. Or, you might be able to work out a simple payment plan with your lender if you just need relief for a brief period (if you’re in between jobs, or have surprise medical expenses, for example).
• Look into alternatives for leaving your home. Foreclosure is a long, unpleasant, expensive process that damages your credit. If you’re simply ready to move on (but want to at least try to minimize the damage), see if your lender will agree to a short sale, which allows you to sell the house and use the proceeds to pay off your lender even if the loan hasn’t been completely repaid and the price of the home is less than what you owe on the mortgage. However, you may still have to pay the deficiency unless you have it waived. If that doesn’t work, another less attractive option is a deed in lieu of foreclosure, which allows you to reduce or even eliminate your mortgage balance in exchange for turning over your property to the lender.
• Consider bankruptcy. Filing for bankruptcy might temporarily halt a foreclosure. The issues are complex, so speak with a local attorney to get accurate information that’s tailored to your situation and your state of residence.
• Avoid scams. Because you’re in a desperate situation, you’re a target for con artists. Be wary of foreclosure rescue scams, such as phony credit counselors or individuals who ask you to sign over the deed to your home, and be selective about whom you ask for help.
When you need a Residential Property Foreclosure Attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506