The Defendant/homeowner is required to file an answer within 20 days after being served with foreclosure or a default judgment may be entered and the property may be sold within 90 days. If the homeowner files an answer, discovery, and perhaps a bankruptcy, the homeowner may win the lawsuit, have the lawsuit dismissed, or the foreclosure process may take years.
In the months or years it takes to foreclose, a homeowner often makes no insurance, property, tax, or mortgage payments eventually filing a Chapter 7 or Chapter 13 bankruptcy so there are no deficiency or tax problems. You can build up savings that enable you to find other housing. A new mortgage at a normal interest rate is often possible 3 years after the sale. The Homeowner should defend the foreclosure and file Chapter 7. Otherwise, the mortgage company may collect the deficiency and the mortgage company will file a 1099-c causing an income tax problem. Charging off the debt creates an income to the Debtor and a tax credit for the lender.
Chapter 13 is the primary tool that allows a homeowner to keep a home. A homeowner may take up to 5 years to catch up on the mortgage and may be able to strip (eliminate) a second home mortgage if there is no equity for the second mortgage. You may also be able to complete a mortgage modification by filing a Chapter 13 so you can take the time to complete the application. Improper changes to the loan can be challenged by motions to deny the mortgage company’s claims and lawsuits may be brought against the mortgage company or servicer.
A Chapter 7 bankruptcy is a good option if you wish to surrender the home or if you are close to current on your mortgage and wish to keep the home. If it would only take a couple of months to catch up and the mortgage company will accept the payment the 4 months a Chapter 7 takes may give you that time.
Chapter 7 may also make the home affordable by eliminating other debts. Chapter 7 will temporarily delay foreclosure and eliminate the tax and deficiency liability if it is properly filed prior to the sale. In Chapter 7 you rarely lose property and wipe out unsecured debts that may be causing the problems with paying the mortgage. You can keep a substantial amount of equity in your home and other property. In Kentucky, you can have more than $23,000 in equity for a single person or $46,000 if a couple is on the deed. Even if a home eventually forecloses a bankruptcy trustee may be much better than a foreclosure in state court. With the state court, you may or may not be able to retain the state $5,000 dollar exemption in the property. In a bankruptcy sale the proceeds:
- go to the taxes and mortgages first
- then to the debtor
- then to any non-dischargeable debts such as child support and income taxes
- and finally to unsecured creditors and judgment liens.
In a state sale, the proceeds go to judgment liens before the debtor is paid. The debtor only keeps $5,000 in equity not the $23,000 exemption. The Debtor, his income taxes and Child Support are paid last if anything is left.
Bad Kentucky foreclosure defenses.
The Foreclosure defenses that do not work so well are:
These options normally may either take weeks or months. You can attempt a reinstatement, workout or modification while you defend the foreclosure or while you are in bankruptcy. But you normally don’t have the time to do these solutions if the house can be sold in 90 days. You are too late to file a bankruptcy or answer to the lawsuit and save the home after the auction happens. You just do not have the time.
The interest, penalties, and legal fees continue to add up. Sometimes they promise a workout but continue to foreclose. If the home is a bargain and worth what is owed at a reasonable rate it may be worth saving by obtaining a Reinstatement of the mortgage if you have the money and can afford to catch up the payments in a short period of time. In a workout you work with a Counselor to get the following:
- Forbearance – relief from making monthly payments for a period of time but at a cost to equity.
- Repayment or Reinstatement – plans to make up missed payments.
- Interest rate reduction.
- Reduction in loan balance (very rare) often only offered after litigation.
- If the bank refuses reinstatement or workout a 13 can force payments on the bank.
Most of the modification programs ended in Dec 2016. Over 90 percent of all mortgage modification applications fail. Banks often will agree to a temporary rate reduction but at a long term increase in the interest or amount paid back. Workouts eliminate the past due payments but places that amount back into the principle increasing the amount you owe. Governmental programs haven’t been successful and the new program HARP has had the same failures that HAMP had. There is no longer a right or requirement by the bank to do any particular program but if they do take an application they have to process it properly.
Short sales and deeds in lieu of foreclosure.
• Short sales.
You work with the lender to sell the property for less than the loan is worth. Very little benefit to you from this option over foreclosure. You are doing the work for the mortgage company and being forced out of the home early. You may still owe a deficiency, and it triggers an income tax debt from a 1099-C for the deficiency after doing the work. Finally, you are liable to lawsuits from the purchaser for property defects.
• Deeds in lieu.
You give the property to the lender prematurely. This has a very small benefit to you on the credit rating. Often it still leaves you with a deficiency and/or tax problems. However, sometimes the lender will waive the deficiency and may offer cash for keys option to help fund your move.
Just walking away.
This still leaves the homeowner liable for income taxes and the deficiency. If the property is condemned, there may be fines and other penalties for building and code violations. Always live in the home until the home is transferred by a deed to a new owner. Housing code violations can be a criminal matter. Even if you file bankruptcy and declare you are abandoning the home, you should keep the property occupied until the sale. The property remains yours until the sale. You can live there rent-free until the sale or rent it on a short lease or rental contract.
If you are thinking about filing bankruptcy, don’t delay because timing is crucial. I am here to help you. So, contact my office right away to start the conversation. Nick C. Thompson, Bankruptcy Lawyer: 502-625-0905.