How to Fight a Home Foreclosure

If you missed mortgage payments, you are at risk of foreclosure and could lose your home. However, there are actions you can take to prevent or delay foreclosure.

Examine Your Finances

Be sure you are talking to your mortgage company. Open and read any letters they send you. Their correspondence will give you important information. Be sure you know exactly how much you owe and how many payments you are behind. Make a list of your monthly income and expenses. Determine if you can continue paying your mortgage at least for a while longer if you forgo luxury items, such as that expensive sound system or Lamborghini. You might need to make some tough decisions, but they may save you from losing your home. 

Seek Guidance and Assistance

Many jurisdictions have emergency mortgage assistance programs to help with house payments. For instance, Pennsylvania and Delaware have programs under which a borrower with a temporary problem can get a loan to cover a delinquent mortgage, or in some cases, even obtain continuing assistance with mortgage payments. These programs are often managed by local housing authorities or legal aid offices. Contact an FHA lender to see if any of their programs are appropriate for your circumstances. Several states offer free counseling services, either through government programs or non-profit organizations.

Contact the Lender or Servicer

When you apply for a home mortgage, your particular lender will not necessarily collect your payments until your loan is paid off or you sell your house. In today's market, loans and the servicing of them are bought and sold. For more information about mortgage servicing, read the FTC consumer information helpful article on Making Payments to a Mortgage Servicer. 

Consider Bankruptcy

If you are unable to reach an agreement with the lender, consider bankruptcy. Bankruptcy will not work for everyone and may buy you a temporary fix.

Make Sure the Right Party is Foreclosing

In the past, mortgage servicers sometimes made mistakes in recording mortgage transfers. These errors could be used to the homeowner’s advantage in a foreclosure. While mistakes sometimes still occur, now that most new mortgages are recorded through the Mortgage Electronic Recording System (MERS), errors happen less frequently. Nevertheless, it’s still a good idea to visit the Clerk Recorder's office in your county, to see what is on file.

Read Your Mortgage Documents

Your mortgage and promissory note explain the procedures the servicer must follow to foreclose. If the servicer did not follow the correct procedures, do not assume the foreclosure is invalid and unenforceable. In many cases, these deficiencies need to be raised promptly or are considered waived. And remember that in most circumstances, a procedural deficiency will only buy you time. The lender can and will remedy the situation and complete the foreclosure.

Make Sure the Lender and/or Servicer Complied with the Relevant Laws

Several jurisdictions have consumer protection laws, mortgage regulations, and predatory lending or high-cost loan laws. Moreover, lenders and servicers are also subject to federal laws such as the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), and the Home Ownership and Equity Protection Act (HOEPA).While it’s fairly rare for a lender to fail to comply with these laws, it does occasionally happen.The lender may make a genuine mistake, or is unscrupulous. In any case, you should review the mortgage note and its relevant disclosures to be sure the lender or servicer complied with the relevant laws. If you discover a compliance failure, this does not mean that you are automatically immune from foreclosure, but it might entitle you to reduced payments or the return of some money. It might also give you a counterclaim against the foreclosing servicer.

Foreclosure Procedure

If your servicer begins foreclosing on your home, how you respond depends on where you live. If you are in a jurisdiction that requires judicial foreclosure, you will need to file an Answer and raise any counterclaims (claims against the foreclosing party), claims against additional parties (such as the lender that originated the loan), or defenses before a deadline expires. The Summons that came with the Complaint should indicate when your Answer is due. If it does not, you’ll need to find out. You can call the bankruptcy court. If you do not file an Answer by the deadline, you will be in default, and may lose the right to raise future claims and defenses. Remember, this is a legal proceeding. It can be complicated, and there are lots of deadlines to meet.

If your jurisdiction permits foreclosure by advertisement, there may be no formal way to object to the foreclosure procedure. If that’s so, you will need to challenge the foreclosure with your own lawsuit. This may be very difficult because few jurisdictions offer forms for such a case.

Conclusion

While you may not be able to defeat a foreclosure action, it does not hurt to look at the documents and consider whether you have a defense. Challenging the legality of a foreclosure can be a tricky business, though some have managed to do it successfully. Consult a bankruptcy attorney who knows the rules of your jurisdiction and will explain your options.