Owning & Renting Property

Facing Foreclosure? Here’s what you need to know.

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Many of us remember the beginnings of the Great Recession – how house foreclosures jumped by more than 200% from 2006-2008. Peaking at 2.23 percent in 2010, hundreds of thousands of Americans lost their homes and some are still reeling from the consequences more than a decade later.

If you’re new to the housing market since then, don’t let thinking about foreclosure overwhelm you. There’s a lot of information out there, so learn the basics before it’s too late.

What is foreclosure?

When a homeowner falls behind on mortgage payments, the mortgage lender can then take control and sell the property at auction to the highest bidder.

Facing the loss of a home is a daunting prospect, and it can be even more frustrating with the terminology used. Here are a few key terms you may want to know:

  • Cancellation of debt: Debt forgiven for less than the full amount owed.
  • Forbearance: This is an agreement between the lender and a borrower where the lender says they won’t foreclose – if the borrower agrees to a mortgage plan that will help them catch up over time.
  • Judicial and nonjudicial foreclosures: Judicial foreclosures allow a homeowner to contest a foreclosure in court before an auction takes place. Certain states allow nonjudicial foreclosures, where a notice of default is served and homeowners have a set amount of time to make up the passed payments.
  • Loan modification: This a change in the terms of your existing loan to make monthly payments more manageable.
  • Recourse and nonrecourse loans: Recourse loans offer less risk but allow property to be seized as collateral for the loan. Nonrecourse loans don’t allow borrowers to be held personally responsible for additional funds owed.
  • Real estate owned (REO) property: Property owned by the mortgage lender after a home fails to sell at a foreclosure auction.
  • Short sale: When the proceeds from the sale of property will be less than the debts.
  • Underwater mortgage: This means that someone owes more on their mortgage than a home is worth.

What is the foreclosure process?

If a homeowner fails to make payments on their mortgage, there are a couple ways things could proceed. Usually there is an opportunity for the existing debt to be repaid, or for a short sale to take place. If neither of those options are doable, the property can be taken to auction by the mortgage holder.

Foreclosure can happen to anyone, whether a job is lost or there’s a death in the family or the payment was just too much to begin with. Broken down into stages, a foreclosure timeline could look something like this:

  1. Pre-foreclosure is the early stage, after a homeowner has failed to make payments and when a default notice is filed. The owner may then have the opportunity to pay back the debt before legal action is taken.
  2. Foreclosure happens when mortgage payments are missed and a lender decides to take action. The length of time and specific process will vary based on factors like location and loan type.
  3. Post foreclosure, if the property does not sell it becomes REO.

You’ll receive a formal notice before an auction takes place, but what kind of notice you receive depends on if it’s judicial or nonjudicial. Which state you live in will also play a role.

The timeline allowed for the whole process varies from 30 days to a year, depending on the state laws.

Can it be avoided?

There are ways to try and avoid foreclosure, including working with your lender before you fall behind on payments. Contacting them early on will give you time to work out a plan.

The Making Home Affordable program from the U.S. government may also be able to help. It can provide free counseling for advice and assistance. Your county or state might have other options for help, too.

Hiring a lawyer is also something to consider. Though it may seem like just another cost, an attorney will be able to sort through all the documentation and legalese inherent in foreclosure – and explain the steps you’ll need to take during the process.

What are the consequences?

There are the obvious effects of losing a home: the stress, change in lifestyle and having to move. All of these effects can be long-lasting, but the financial consequences can be even more substantial.

  • You’ll have to report it on your taxes. The Internal Revenue Service says that taxpayers are generally allowed to “exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualify for this relief.” Since requirements change often, check with an attorney or accountant to find out what will work in your circumstances.
  • Your credit score will take a hit. The higher your score, the more you stand to lose from a foreclosure. If your credit score is excellent, you could lose 140 to 160 points – and it will stay on your report for around seven years.

One thing to keep in mind is that you’re not alone. 250,000 families face foreclosure every three months and 43 percent of households in the U.S. spend more than they earn each year.

It is possible for former homeowners to buy property again. Focus on changing your money habits by paying down debt and creating a strategy for savings. This will help improve your credit score and help put you back on the right path. You could also seek assistance from a counselor to help put a plan in place.

Should you be wary of buying foreclosed property?

There are pros and cons, just like there are with any home. You may be able to find a house at a lower cost and there won’t be any liens, mortgages or back taxes leftover from the previous owners. You can also still use standard financing like FHA and VA loans.

Drawbacks may include the fact that foreclosed homes are often sold as-is or that the previous tenant could still be in the home and will need to move out. 

It’s understandable that homeowners may worry about foreclosure – and it’s virtually impossible to predict when another market crash or a job loss will happen. The important thing to keep in mind is that it is possible to come back from one.

Real estate is a big investment – make sure yours is protected with legal help from ARAG. Our attorney network is available to all Legal Now members whose employer doesn’t offer legal insurance, for matters ranging from buying and selling property to foreclosure and contractor disputes.

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