To understand the foreclosure process one must know what it is first. So what is the definition of foreclosure? Simply put, the foreclosure process as applied to residential mortgage loans is a bank or other secured creditor selling or repossessing a parcel of real property (immovable property) after the owner has failed to comply with an agreement between the lender and borrower called a “mortgage” or “deed of trust”.
Within the United States and many other countries, several types of foreclosure exist. Two of them – namely, by judicial sale and by power of sale – are widely used, but other modes of foreclosure are also possible in a few states.
The process of foreclosure can be rapid or lengthy and varies from state to state. Other options such as refinancing, alternate financing, temporary arrangements with the lender, or even bankruptcy may present homeowners with ways to avoid foreclosure.
The number of households in foreclosure increased 79 percent in 2007, and that number is increasing for 2008! So how does the foreclosure process end? Well it can end in one of four ways:
- The borrower/owner reinstates the loan by paying off the default amount during the grace period.
- The borrower/owner sells the property to a third party during the pre-foreclosure period The sale allows the borrower/owner to pay off the loan and avoid having a foreclosure on his or her credit history.
- A third party buys the property at a public auction at the end of the pre-foreclosure period.
- The lender can take ownership either through an agreement with the borrower/owner during pre-foreclosure, via a short sale foreclosure or by buying back the property at the public auction.
Remember that understanding foreclosures is the first step for homeowners to stop foreclosure. As long as real estate prices, which are pretty much dictated by real estate buyers, continue to decline, there will be increased numbers of defaults and foreclosures.
Few choose to go into foreclosure voluntarily. It’s often an unpredictable result from one of the following: Laid-off, fired or quit job. Inability to continue working due to medical conditions. Excessive debt and mounting bill obligations. Squabbles with co-owner, divorce or job transfer to another state.
So how do you avoid foreclosure?
The best way to avoid foreclosure is to prevent the filing of a Notice of Default. That is why it is better for you to call your lender before falling behind on your payments, because lenders are often reluctant to work out repayment schedules after foreclosure proceedings have been commenced. You will be given a certain time period to bring the payments current, pay the costs of filing the foreclosure and stop the foreclosure.
No one expects to lose their house to foreclosure, but by understanding the foreclosure process and what may lead up to it, you can be in a better position to recognize and address potential problems that may impact your ability to make every mortgage payment on time.
Learn to recognize the warning signs of foreclosure. Know what early steps you can take to avoid foreclosure. If you are in the midst of a foreclosure, know the dos and don’ts. Know where to get help in dealing with issues that could lead to foreclosure. The time to develop a backup plan is not when things have gotten so bad that you are facing foreclosure, but when things are going well and you can prepare for the unexpected “what if’s” that happen in life.
Nearly four out of ten sub prime ARM loans are a month or more late, or in foreclosure. And sub prime ARMs account for 39% of the loans that fell into foreclosure during the quarter. Prime fixed-rate loans, which are considered very low risk, have also seen sharp increases in their delinquency and foreclosure rates, although they are performing far better than the riskier loans on the market.
There are 431,000 prime loans in foreclosure. This marks the sixth straight quarter in which a record percentage of loans went into foreclosure. Nearly half of the homes in foreclosure are concentrated in six states. Those four states have nearly 400,000 homes in foreclosure, or a third of the nationwide total. Ohio has about 61,000 homes in foreclosure, while Michigan has about 54,000. The rate of homes going into foreclosure in Ohio and Michigan was narrowly lower than it was in the fourth quarter, and 18 other states also saw a decline in that rate.
Both foreclosures and deficiency judgments could seriously affect your ability to qualify for credit in the future. So you should avoid foreclosure if at all possible.
Article Source: http://www.articlesbase.com/finance-articles/foreclosure-what-is-it-and-how-to-avoid-it-520707.html
If you are facing foreclosure than you need to click here to learn how to stop or prevent it now.
Legal Defenses to Foreclosure
The following are legal defenses to foreclosure to beat the bank:
1. Truth in Lending Act (TILA) violations enabling rescission. If your loan is a refinance, the bank must have provided you a set of disclosures at the time of closing. If these disclosures are inaccurate, the loan is statutorily rescindable under TILA. For example, in a foreclosure action, the finance charge must have been accurate within $35 or the loan may be rescindable. This means the loan is cancelled and all money paid to the lender is refunded.
2. Truth in Lending Act (TILA) violations enabling damages. If you purchased the property with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money damages to offset the foreclosure.
3. Home Ownership and Equity Protection Act (HOEPA). This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.
4. Failure to Provide a Correct Notice of the Right to Rescind. There is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.
5. Breach of Contract. Many times the lender will do things that are unfair or unjustified before starting the foreclosure process. Just as you have an obligation to pay the mortgage, the lender has a responsibility not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.
6. Real Estate Settlement Procedures Act. This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees. It enables damages, and sometimes rescission if the error triggers TILA.
7. Fair Debt Collection Practices Act. This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt. A failure to follow this law enables statutory damages and attorney’s fees.
8. Fair Credit Reporting Act. This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. Violations of this act also enables damages and attorney’s fees. Punitive damages might be available under this act.
9. Real party in interest. This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.
10. Unconscionability. This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.
11. Failure to state a claim upon which relief can be granted. This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.
12. Failure to establish conditions precedent. Want to get a foreclosure action thrown out of court right away? Use this defense that attacks the lender’s pre-foreclosure processes.
13. Failure to comply with FHA pre-foreclosure requirements. FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.
Article Source: http://www.articlesbase.com/national,-state,-local-articles/legal-defenses-to-foreclosure-561043.html
The author of 23 Legal Defenses to Foreclosure has identified over 50 legal defenses to foreclosure (23 with detailed explanations), which are listed in his book. For more information about each of the defenses above, consider the book, 23 Legal Defenses to Foreclosure, by clicking here.
The book includes checklists and easy-to-read chapters that show you how to identify these errors in your own loan.
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