Showing posts with label Foreclosure. Show all posts
Showing posts with label Foreclosure. Show all posts
Monday, October 14, 2013
New Hampshire Superior Court Rules change October 1, 2013
Here's the link to the new Superior Court rules which apply to all cases filed or pending on October 1, 2013:
http://www.courts.state.nh.us/supreme/orders/05-22-2013-Order-Adopting-New-Superior-Court-Civil-Rules.pdf
All Superior Court Forms:
http://www.courts.state.nh.us/superior/forms/formsnumeric.htm
Complaint Form: http://www.courts.state.nh.us/forms/nhjb-2688-s.pdf
Complaint to Enjoin Foreclosure Form: http://www.courts.state.nh.us/forms/nhjb-2834-s.pdf
Tuesday, July 2, 2013
Save Your Home from Foreclosure: Fannie Mae and Freddie Mac offer streamlined home loan modifications to home owners, effective July 1, 2013 - August 1, 2015
The Federal Housing Finance Agency ("FHFA") announced that, effective July 1, 2013, Fannie Mae and Freddie Mac mortgages will offer a new, simplified loan modification initiative to minimize losses and to help troubled borrowers avoid foreclosure and stay in their homes.
Beginning July 1, servicers will be required to offer eligible borrowers who are at least 90 days delinquent on their mortgages an easy way to lower their monthly payments and modify their mortgages without requiring financial or hardship documentation. It is called the "Streamlined Modification Initiative". After making the three trial payments, the mortgage should be permanently modified with the lower payment. The lower payments would be due to a lower interest rate and/or longer mortgage term, rather than a reduction to mortgage principal. The homeowner must timely make each of the three trial- modification payments.
The program begins July 1, 2013 and ends August 1, 2015.
The loan must be owned or guaranteed by Fannie Mae or Freddie Mac. Homeowners must be 90 days to 24- months (and no more) delinquent in mortgage payments, and have a first-lien mortgage that is at least 12 months old with a loan-to-value ratio equal to or greater than 80 %. That means you must have a first mortgage where the balance you owe is 80% or more of the value of your home and you must have taken out this mortgage at least twelve months ago, and be somewhere between 3 months and 24 months behind in your monthly mortgage payments.
Loans that have been modified at least two time previously are not eligible.
For further information, dial 211 and ask to be placed with a Housing counselor. Why? The State of New Hampshire provides to its residents, at NO COST, the ability to work with a housing counselor to process a loan modification application. Again, simply dial 211 and ask to be placed with a housing counselor to apply for a loan modification at no cost to you!
For further information, dial 211 and ask to be placed with a Housing counselor. Why? The State of New Hampshire provides to its residents, at NO COST, the ability to work with a housing counselor to process a loan modification application. Again, simply dial 211 and ask to be placed with a housing counselor to apply for a loan modification at no cost to you!
You can click here to see if your loan is owned or guaranteed by Fannie Mae or Freddie Mac.
Fannie Mae look up:
Freddie Mac look up:https://ww3.freddiemac.com/corporate/?intcmp=LLT-HPimage
For more information, click on the news releases below issued by the Federal Housing and Finance Agency:
Fannie Mae info: https://www.fanniemae.com/content/announcement/svc1305.pdf
Freddie Mac Info: http://www.freddiemac.com/sell/guide/bulletins/pdf/bll1305.pdf
Sunday, March 31, 2013
Challenge to foreclosure dismissed due to res judicata.
Merrick v. CitiMortgage, Inc., 2013 DNH 027 (DNH 2013)
March 5, 2013, Opinion by Judge Steven J. McAuliffe
District Court dismissed (granting mortgagee's 12(b)(6) motion) the pro se litigants' challenge to the mortgagee's foreclosure, finding the issues were already decided in the underlying bankruptcy case.
Pro se litigants (Mr. and Mrs. Merrick) challenged CitiMortgage's right to foreclose, averring that CitiMortgage had not demonstrated to their satisfaction that they held the mortgage, and thus able to foreclose. CitMortgage removed the case from state to federal court, and moved to dismiss on the grounds of res judicata, arguing that the issue had already been litigated and decided by the Bankruptcy Court in the Merricks' Chapter 13 case. The Merricks' bankruptcy case and related adversary proceeding against CitiMortgage had been dismissed by the bankruptcy court for, inter alia, the Merricks' delay and failure to comply with court orders.
The essential elements of res judicata are: "(1) a final judgment on the
merits in an earlier action; (2) an identity of parties or privies in the
two suits; and (3) an identity of the cause of action in both the earlier
and later suits." FDIC v. Shearson-American Express, Inc., 996 F.2d 493, 497
(1st Cir. 1993). Here, each of those essential elements is present. First, As noted above, the bankruptcy court dismissed Mr. Merrick's
bankruptcy petition for cause and subsequently dismissed his adversary complaint as well. Neither order contains any language suggesting that the dismissal was without prejudice to Mr. Merrick's refiling his claim
against CitiMortgage. The order dismissing his adversary complaint was, then, an adjudication on the merits of that claim. See Fed. R. Bank. P. 7041(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action . . . Unless the dismissal order states otherwise, a dismissal under this subdivision. . . . operates as an adjudication on the merits."). See also Fed. R.
Civ. P. 41((b).
bankruptcy petition for cause and subsequently dismissed his adversary complaint as well. Neither order contains any language suggesting that the dismissal was without prejudice to Mr. Merrick's refiling his claim
against CitiMortgage. The order dismissing his adversary complaint was, then, an adjudication on the merits of that claim. See Fed. R. Bank. P. 7041(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action . . . Unless the dismissal order states otherwise, a dismissal under this subdivision. . . . operates as an adjudication on the merits."). See also Fed. R.
Civ. P. 41((b).
Secondly, regarding the Identity of Parties or Privies: CitiMortgage is the defendant in both the present
action and the previously-dismissed adversary proceeding in the bankruptcy
court. The only
difference in parties in the two actions is that Mrs. Merrick is also a plaintiff in this proceeding. As the court of appeals has noted, when the plaintiffs "are nominally different[,] . . . the question reduces to whether the plaintiffs, though not identical, are sufficiently in privity to satisfy this element." In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 17 (1st Cir. 2003). They are. Although she was not a named plaintiff in her husband's adversary complaint against Citi Mortgage, Mrs. Merrick's interests were adequately represented in the bankruptcy proceeding insofar as: (1) her interests and those of her husband were virtually identical with regard to the claim against Citi and Mr. Merrick's efforts to prevent the foreclosure upon the couple's home; and (2) she would have benefited to the same extent as her husband, if he had prevailed on his claims against Citi in the bankruptcy court. In fact, Mr. Merrick tacitly acknowledged his wife's interest in the adversary proceeding when he signed his adversary complaint against Citi as the "authorized representative for John & Joanne Merrick." Accordingly, the second element of res judicata - identity of parties or privies - is satisfied. See, e.g., Eubanks v. FDIC, 977 F.2d 166, 170 (5th Cir. 1992) (holding that wife's interests were sufficiently well-represented in husband's bankruptcy proceeding to give it res judicata effect against her); Cuauhtli v. Chase Home Fin. LLC, 308 Fed. Appx. 772, 773 (5th Cir. 2009) (holding that husband and wife were in privity, such that wife's prior suit challenging legality of foreclosure proceedings precluded subsequent similar claims by her husband); In re Rhoads, 2012 WL 603652 (9th Cir. BAP 2012) (finding privity between a husband and wife with regard to claims arising out of the foreclosure of jointly owned property); Hintz v. JP Morgan Chase Bank, N.A., 2011 WL 579339, *7 (D. Minn.,2011) ("The First Lawsuit involved the same parties, or their privities, as the current lawsuit. Here, Mr. Hintz, one of the two Plaintiffs in this case, was the plaintiff in the state lawsuit. As a joint owner of the Property, Ms. Hintz, the second Plaintiff in this case, was in privity with Mr. Hintz. Two parties who have similar interests in the same realty are in privity.") (citation and internal punctuation omitted).
Third, regarding the Identity of the Cause of Action:Finally, there can be little doubt that the claim the Merricks' advance against Citi in this proceeding is identical to the one Mr. Merrick pursued against Citi in his adversary proceeding. Both actions involve allegations of Citi's lack of "standing" to enforce the judicial
sale provisions of the mortgage deed; both actions rely on allegations that Citi lacks a "proof of claim" that would allegedly demonstrate its legal authority to foreclose the mortgage; and both actions allege that
Citi is not the current holder in due course of the mortgage deed, with power/authority to enforce it. Compare Adversary Complaint (document no. 4-3) with Motion to Order a Temporary Restraining Order (document no. 1-1).
click here for the full opinion: Click here: ISYS:web 8
difference in parties in the two actions is that Mrs. Merrick is also a plaintiff in this proceeding. As the court of appeals has noted, when the plaintiffs "are nominally different[,] . . . the question reduces to whether the plaintiffs, though not identical, are sufficiently in privity to satisfy this element." In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 17 (1st Cir. 2003). They are. Although she was not a named plaintiff in her husband's adversary complaint against Citi Mortgage, Mrs. Merrick's interests were adequately represented in the bankruptcy proceeding insofar as: (1) her interests and those of her husband were virtually identical with regard to the claim against Citi and Mr. Merrick's efforts to prevent the foreclosure upon the couple's home; and (2) she would have benefited to the same extent as her husband, if he had prevailed on his claims against Citi in the bankruptcy court. In fact, Mr. Merrick tacitly acknowledged his wife's interest in the adversary proceeding when he signed his adversary complaint against Citi as the "authorized representative for John & Joanne Merrick." Accordingly, the second element of res judicata - identity of parties or privies - is satisfied. See, e.g., Eubanks v. FDIC, 977 F.2d 166, 170 (5th Cir. 1992) (holding that wife's interests were sufficiently well-represented in husband's bankruptcy proceeding to give it res judicata effect against her); Cuauhtli v. Chase Home Fin. LLC, 308 Fed. Appx. 772, 773 (5th Cir. 2009) (holding that husband and wife were in privity, such that wife's prior suit challenging legality of foreclosure proceedings precluded subsequent similar claims by her husband); In re Rhoads, 2012 WL 603652 (9th Cir. BAP 2012) (finding privity between a husband and wife with regard to claims arising out of the foreclosure of jointly owned property); Hintz v. JP Morgan Chase Bank, N.A., 2011 WL 579339, *7 (D. Minn.,2011) ("The First Lawsuit involved the same parties, or their privities, as the current lawsuit. Here, Mr. Hintz, one of the two Plaintiffs in this case, was the plaintiff in the state lawsuit. As a joint owner of the Property, Ms. Hintz, the second Plaintiff in this case, was in privity with Mr. Hintz. Two parties who have similar interests in the same realty are in privity.") (citation and internal punctuation omitted).
Third, regarding the Identity of the Cause of Action:Finally, there can be little doubt that the claim the Merricks' advance against Citi in this proceeding is identical to the one Mr. Merrick pursued against Citi in his adversary proceeding. Both actions involve allegations of Citi's lack of "standing" to enforce the judicial
sale provisions of the mortgage deed; both actions rely on allegations that Citi lacks a "proof of claim" that would allegedly demonstrate its legal authority to foreclose the mortgage; and both actions allege that
Citi is not the current holder in due course of the mortgage deed, with power/authority to enforce it. Compare Adversary Complaint (document no. 4-3) with Motion to Order a Temporary Restraining Order (document no. 1-1).
click here for the full opinion: Click here: ISYS:web 8
Stopping foreclosure of your home.
In New Hampshire, most home mortgages have a "power of sale" clause. A "power of sale" clause means that the lender can take your home without taking you to court if you are behind in your home mortgage payments. Because of this "power of sale" clause allowed in New Hampshire home mortgages, New Hampshire is called a "non-judicial" foreclosure state.
A non-judicial foreclosure in New Hampshire can happen very quickly.
Take a look at the following time line from the HomeHelp web site to understand the process that shows you can lose your home in less than 120 days if you do nothing.
click here: http://www.homehelpnh.
Here are the steps to losing your home:
1. Default: Meaning, you are not current in your home mortgage payments. If you do not cure the default, you will soon receive an acceleration letter from the "mortgagee" (a "mortgagee" is the person or entity holding your mortgage and you, the borrower, are the "mortgagor") telling you that you need to pay the past due amounts within a certain time frame.
2. You may also incur late fees, penalties and the lender's costs and fees for the mortgagee's attorney for being in default - so being late in your mortgage payments may cause you to incur these $$$ additional charges.
3. After the acceleration lender, if you have not brought all of your mortgage payments, cost, fees and late charges current, the mortgagee is permitted to schedule a foreclosure sale of your home. The mortgagee must send you a notice of foreclosure sale at least 25 days before the foreclosure sale.
4. Mortgagee advertises once a week for three weeks before the foreclosure sale to publish the date and time that your foreclosure sale is going to take place.
5. Day of the Foreclosure sale: An auctioneer on behalf of the mortgagee shows up on your front lawn on the day of the foreclosure sale and auctions off your home. Up to the point of foreclosure sale, you can "reinstate" by paying back the lender all the past due payments, costs, fees, late fees and penalties - again, it is not just paying back the late mortgage payments.
6. Whoever buys your home at the foreclosure sale has 60 days to record the foreclosure deed. The mortgagee may buy your home at a foreclosure sale auction in addition to a third-party.
7. After the foreclosure sale deed is recorded, the new owner (often the mortgagee) will proceed to the process of eviction of the homeowner.
How do I stop foreclosure?
1. Lender consents: Ask the mortgagee to adjourn the foreclosure sale and give them a reasons to do so - such as you have a mortgage loan modification pending, or you have a sale pending of your home that will repay the loan. With respect to a loan modification, remember you can get FREE help in the State of NH from a Housing Counselor (click on our article regarding Housing Counselors which gives you the names and addresses of a free housing counselor near you). If the mortgagee agrees to adjourn the foreclosure sale, it is very wise to get this in writing. Or, you can pay the lender all of the back payments, late fees, penalties etc., that have accrued up to the date of the foreclosure sale, also called "curing the arrearages" - and then you can go back to making your normal monthly mortgage payments on time - but you normally only have until the time the foreclosure sale takes place to "cure the arrearages".
2. TRO: You may be able to seek a temporary restraining order, also called an "injunction", in the state court to temporarily stop the foreclosure sale, but you need to give the judge a reason to stop the foreclosure sale and you need to do this before the foreclosure sale. You must file for the TRO before the foreclosure sale.
3. Bankruptcy: File a petition in bankruptcy which automatically stops the foreclosure proceedings. In a Chapter 13 bankruptcy proceeding, you can have up to 60 months (5 years) to cure the back payments you owe to the lender and keep your home, as long as you can make the normal monthly payments going forward. A Chapter 7 bankruptcy will also automatically stop the foreclosure sale as well; however, once the Chapter 7 case is over, the mortgagee can reschedule the foreclosure sale.
Wednesday, March 13, 2013
Foreclosure: First Circuit would not force mortgagee to foreclose.
Canning v. Beneficial Maine, Inc. (In re Canning), ___ F.3d ___(1st Cir. Feb. 1, 2013).
The refusal by the Chapter 7
debtors’ mortgage creditor to accede to the debtors’ demand that the creditor
either foreclose the mortgage on their residence, which the debtors had surrendered
and vacated, or release its lien on the property did not violate the discharge
injunction. Distinguishing In re Pratt, 462 F.3d 14 (1st Cir. 2006), in which the court held that a secured creditor's refusal to
foreclose or release its lien on an inoperable, worthless car was intended to
objectively coerce the debtor into paying a discharged debt, the court observed
that the creditor offered to release its lien through either a settlement offer
or a short sale, which indicated the intent to collect no more than the value
secured by the underlying lien, as well as a willingness to negotiate a palatable
solution for all involved.
Click here for the full opinion from the court's web site: Click here: USCA1 Opinion
Click here for the full opinion from the court's web site: Click here: USCA1 Opinion
Sunday, March 3, 2013
FORECLOSURE: Homeowner's legal challenges must occur BEFORE the foreclosure sale auction of their home occurs, per the Federal Court.
In a recent opinion issued by the Federal District Court in New Hampshire, Chief Judge Laplante held that challenges to the foreclosure must occur BEFORE the foreclosure sale is held, relying upon NH R.S.A. 479:25,II. See Calef v. Citibank, N.A. et. al., CV-11-526 (D.N.H. 2/21/13).
Click here for the full text of the opinion, which can be found on the Court's web site:
The Calef case involved the federal court sitting in diversity, applying the state law as the court so interpreted it. In so ruling, the court relied upon Gordonville Corp. N.V. v. LR1-A Ltd. P'ship, 151 N.H. 371, 377 (2004); Murphy V. Fin. Dev. Corp., 126 N.H. 536, 540 (1985); People's Utd. Bank. v. Mtn. Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 167-68 (D.N.H. 2012). Having failed to move to enjoin the foreclosure sale before launching such legal challenges, Calef (the home owner being foreclosed upon) was barred from doing so, after the foreclosure sale. Fuller v. Fed. Nat'l Mortg. Ass'n, No. 218-2011-CV-00668, slip op. at 4-6 (N.H. Super. Ct. Oct 2, 2012)(Section 479:25, II barred challenge to foreclosure based on alleged invalidity of assignment where plaintiffs had notice of assignment well before sale); Baril v. JP Morgan Chase Bank, N.A., No. 218-2010-CV-501, slip op. at 4-6 (N.H. Super. Ct. July 20, 2011)(similar); Fed Nat'l Mortg. Ass'n v. Goyal, No. 09-C-0543, 2011 WL 4403839 (N.H. Super. Ct. Feb 25, 2011)(similar).
Further, as the court previously ruled in LeDoux v. JP Morgan Chase, N.A., 2012 D.N.H. 194, 13-15, the borrower did not have standing to object to the transfer of a note on grounds that would merely render the transfer "voidable" as opposed to "void", such as a challenge to the mortgagee's pooling and servicing agreement.
Click here for the full text of the opinion, which can be found on the Court's web site:
The Calef case involved the federal court sitting in diversity, applying the state law as the court so interpreted it. In so ruling, the court relied upon Gordonville Corp. N.V. v. LR1-A Ltd. P'ship, 151 N.H. 371, 377 (2004); Murphy V. Fin. Dev. Corp., 126 N.H. 536, 540 (1985); People's Utd. Bank. v. Mtn. Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 167-68 (D.N.H. 2012). Having failed to move to enjoin the foreclosure sale before launching such legal challenges, Calef (the home owner being foreclosed upon) was barred from doing so, after the foreclosure sale. Fuller v. Fed. Nat'l Mortg. Ass'n, No. 218-2011-CV-00668, slip op. at 4-6 (N.H. Super. Ct. Oct 2, 2012)(Section 479:25, II barred challenge to foreclosure based on alleged invalidity of assignment where plaintiffs had notice of assignment well before sale); Baril v. JP Morgan Chase Bank, N.A., No. 218-2010-CV-501, slip op. at 4-6 (N.H. Super. Ct. July 20, 2011)(similar); Fed Nat'l Mortg. Ass'n v. Goyal, No. 09-C-0543, 2011 WL 4403839 (N.H. Super. Ct. Feb 25, 2011)(similar).
Further, as the court previously ruled in LeDoux v. JP Morgan Chase, N.A., 2012 D.N.H. 194, 13-15, the borrower did not have standing to object to the transfer of a note on grounds that would merely render the transfer "voidable" as opposed to "void", such as a challenge to the mortgagee's pooling and servicing agreement.
In Calef, the plaintiff/pro se challenged the foreclosure sale of his home, after the foreclosure sale auction of his home occurred. The Court held that insofar as Calef's claims arise from alleged infirmities in the assignment of his mortgage to the foreclosing entity, New Hampshire state law preclude him for pursuing those claims because he failed to file a petition to enjoin the foreclosure sale prior the the sale occurring. Here, the owner of the home allegedly defaulted, and was sent a foreclosure notice by the mortgagee's counsel, the Harmon Law firm. In the process, MERS assigned its interest in the mortgage to Citibank and copied Calef on the assignment. Defendant/mortgagee characterized Calef's suit as a challenge to its pre-foreclosure conduct (i.e. claims that the assignment of mortgage from MERS to Citibank was invalid) and claims related to post-foreclosure sale conduct (allegations that foreclosure deed and affidavit were invalid).
Further, the court found that even where a foreclosure deed and affidavit are not recorded at all, that does not affect the validity of the foreclosure sale as applicable to the mortgagor (meaning, the home owner). "It follows that where the recorded deed and affidavit are deficient in some respect . . . that, too, is a matter of no concern to the mortgagor." Calef, at p. 13.
As such, summary judgment was granted to the foreclosing entity.
Friday, March 1, 2013
Housing Counselors - FREE Help to Process Your Loan Modification
For those New Hampshire home owners who want to try and reduce their home mortgage payments, FREE help is available to you. Contact a Housing Counselor to work with you to process an application for a home mortgage loan modification. Below is a current list (year 2013) of counselors in your area. Each one has a link to the agency's web site to click on for more information:
Southwestern Community Services
Click here for more information:
AHEAD
161 Main St.
Littleton, NH 03561
Tel: 603-444-1377 or 1-800-974-1377
Web: www.homesahead.org
Service Areas: Grafton, Coos and Carroll Counties
Laconia Area Community Land Trust
658 Union Ave
Laconia, NH 03246
Tel: 603-524-0747
NeighborWorks Southern NH
801 Elm St., Second Floor
Manchester, NH 03101
Contact: Paul McLaughlin
Tel: 603-626-4663
Web: www.nwgreatermanchester.
Service Areas: Merrimack, Hillsborough and parts of Rockingham Counties
Service Areas: Merrimack, Hillsborough and parts of Rockingham Counties
CATCH Neighborhood Housing
76 South State St.
Concord, NH 03301
Tel: 603-225-8835
Community Home Solutions
14 New Zealand Rd.Seabrook, NH 03874Tel: 603-474-7449www.communityhomesolutions.orgService Areas: Rockingham and Strafford CountiesSouthwestern Community Services
36 Community Way, P.O. Box 603
Keene, NH 03431
Tel: 603-352-3618
Service areas: Cheshire, Sullivan, and lower Grafton Counties, Western Hillsborough Counties
The Housing Partnership
767 Islington St, P.O. Box 466
Portsmouth, NH 03802
Tel: 603-766-3125
The Way Home
214 Spruce St.
Manchester, NH 03103
Tel: 603-218-1466
Service Areas: Merrimack, Hillsborough, and parts of Rockingham Counties
211 NH
Tel: 603-621-6893 or
Tel: 603-621-6892
Service Areas: Statewide
Wedu
Tel: 603-647-9338
Service Areas: Statewide
Wednesday, June 27, 2012
Foreclosure in New Hampshire: Lose your house in 120 days!
In New Hampshire, most home mortgages have a "power of sale" clause. A "power of sale" clause means that the lender can take your home without taking you to court if you are behind in your home mortgage payments. Because of this "power of sale" clause allowed in New Hampshire home mortgages, New Hampshire is called a "non-judicial" foreclosure state.
A non-judicial foreclosure in New Hampshire can happen very quickly.
Take a look at the following time line from the HomeHelp web site to understand the process:
http://www.homehelpnh.org/timeline.htm
Here are the steps to losing your home:
1. Default: Meaning, you are not current in your payments.
2. You may also incur late fees, penalties and the lender's costs and fees for the lender's attorney for being in default - so being late in your mortgage payments may cause you to incur these $$$additional charges.
3. Bank sends you a notice of foreclosure sale at least 25 days before the foreclosure sale.
4. Lender advertises once a week for three weeks before the foreclosure sale of the date and time the foreclosure sale is going to take place.
5. Foreclosure sale: An auctioneer on behalf of the lender shows up on your front lawn on the day of the foreclosure sale and auctions off your home. Up to the point of foreclosure sale, you can "reinstate" by paying back the lender all the past due payments, costs, fees, late fees and penalties - again, it is not just paying back the late mortgage payments.
6. Whoever buys your home at the foreclosure sale has 60 days to record the foreclosure deed.
7. Eviction of the homeowner.
How do I stop foreclosure?
1. $$$: Pay the lender all of the back payments, late fees, penalties etc., that have accrued up to the date of the foreclosure sale, also called "curing the arrearages" - and then you can go back to making your normal monthly mortgage payments on time - but you normally only have until the time the foreclosure sale takes place to "cure the arrearages".
2. TRO: You may be able to seek a temporary restraining order, also called an "injunction", in the state court to temporarily stop the foreclosure sale, but you need to give the judge a reason to stop the foreclosure sale and you need to do this before the foreclosure sale.
3. Bankruptcy: File a petition in bankruptcy which automatically stops the foreclosure proceedings. In a Chapter 13 bankruptcy proceeding, you can have up to 60 months (5 years) to cure the back payments you owe to the lender and keep your home, as long as you can make the normal monthly payments going forward.
Lesson Learned: As soon as you are involved in the foreclosure process, consider seeking the advice of an attorney. Most foreclosure and bankruptcy attorneys provide an initial free consultation (I do) to help you understand your options. Good luck!
Friday, May 6, 2011
Can I keep my house if I file for bankruptcy?
What you can keep in a bankruptcy case depends on what Chapter you file and where you live.
In many, many instances, bankruptcy allows you to keep your house and is the only tool to allow you to keep your house.
CHAPTER 7
Normally, in a Chapter 7 case, you can keep whatever you can exempt under the allowed "exemptions".
An "exemption" is something that you may keep, regardless as to how much money you owe to creditors.
There is a State Exemption scheme in many states and there is a Federal Bankruptcy Code exemption scheme applicable to all states.
If you live in New Hampshire, where I practice, you can choose either (1) the State Exemptions or the (2) Federal Exemptions. If you go to my prior articles, click on "exemptions", and it will tell you what you can exempt under the Federal or State Exemption schemes.
Under the New Hampshire State Exemptions, you have a homestead exemption of $100,000. Under the Federal Bankruptcy Code exemptions, you can exempt $21,625 in value of your home.
So, if you own a home worth $250,000 and owe $150,000 on the mortgage, you have an equity cushion of $100,000. Under the New Hampshire State Exemptions, you could protect all of the equity in your home (remember, there is a $100,000 homestead exemption) and go through Chapter 7 without the bankruptcy trustee touching your home. You can keep it. The only issue is then between you and the mortgage holder on your home. If you are current in your mortgage payments, then regardless as to whether you file Chapter 7, the mortgage holder cannot foreclose on your home as long as you are current in all of your obligations under the mortgage. Many people who are overwhelmed by credit card debt or medical bills, stay current on their home mortgage payments, and file Chapter 7 to get rid of the credit card debt and medical bills - and still keep their home.
If you are not current on your mortgage payments, then the lender may foreclose - but you still get to keep the surplus proceeds over and above what you owe on the mortgage on any foreclosure sale of your home.
CHAPTER 13.
In Chapter 13, you would still choose either the State or Federal Exemption scheme. However, as long as you make the Chapter 13 payments under your Chapter 13 re-payment plan, you can normally keep ALL of your assets.
The reason you list the exemptions in Chapter 13 is to figure out how much equity you have in your assets after application of exemptions. Why? Because, in Chapter 13, under your repayment plan you should pay your unsecured creditors (nomrally credit card debt or medical bills) the same percentage they would receive if you liquidated all of your assets after application of the exemptions - essentially, pennies on the dollar spread over the life of your Chapter 13 re-payment plan.
Many people file Chapter 13 because they are behind in their mortgage payments and just cannot catch up, but they want to keep their home. Chapter 13 gives the home owner the opportunity to keep their house.
Let's say Mrs. X pays $1000 monthly to her bank for her mortgage but she was out of work for a few months and fell behind 4 payments - she now owes the bank $4000 in past-due payments, called "mortgage arrearages". She tries to get a loan modification, but the bank just will not work with her. Mrs. X tells the bank she can still make her $1000 monthly mortgage payment if they would just let her spread out the $4000 she owes in mortgage arrearages over time. Mrs. X says to the bank, if you just let me spread the $4000 I owe in back payments over 36-months, I can catch up. The bank says "no". They tell her they are going to foreclose on her house.
[When a bank says the "f" word ("foreclosure") - take action. Please click on the articles under "foreclosure" on my blog to learn more about foreclosure - because in New Hampshire, the bank normally does not have to take you to court to foreclose on your home and you can be on the street in a matter of months.]
Mrs. X can force the bank to take her deal by simply filing Chapter 13 and sucessfully completing the same 36-month re-payment plan!
In many, many instances, bankruptcy allows you to keep your house and is the only tool to allow you to keep your house.
CHAPTER 7
Normally, in a Chapter 7 case, you can keep whatever you can exempt under the allowed "exemptions".
An "exemption" is something that you may keep, regardless as to how much money you owe to creditors.
There is a State Exemption scheme in many states and there is a Federal Bankruptcy Code exemption scheme applicable to all states.
If you live in New Hampshire, where I practice, you can choose either (1) the State Exemptions or the (2) Federal Exemptions. If you go to my prior articles, click on "exemptions", and it will tell you what you can exempt under the Federal or State Exemption schemes.
Under the New Hampshire State Exemptions, you have a homestead exemption of $100,000. Under the Federal Bankruptcy Code exemptions, you can exempt $21,625 in value of your home.
So, if you own a home worth $250,000 and owe $150,000 on the mortgage, you have an equity cushion of $100,000. Under the New Hampshire State Exemptions, you could protect all of the equity in your home (remember, there is a $100,000 homestead exemption) and go through Chapter 7 without the bankruptcy trustee touching your home. You can keep it. The only issue is then between you and the mortgage holder on your home. If you are current in your mortgage payments, then regardless as to whether you file Chapter 7, the mortgage holder cannot foreclose on your home as long as you are current in all of your obligations under the mortgage. Many people who are overwhelmed by credit card debt or medical bills, stay current on their home mortgage payments, and file Chapter 7 to get rid of the credit card debt and medical bills - and still keep their home.
If you are not current on your mortgage payments, then the lender may foreclose - but you still get to keep the surplus proceeds over and above what you owe on the mortgage on any foreclosure sale of your home.
CHAPTER 13.
In Chapter 13, you would still choose either the State or Federal Exemption scheme. However, as long as you make the Chapter 13 payments under your Chapter 13 re-payment plan, you can normally keep ALL of your assets.
The reason you list the exemptions in Chapter 13 is to figure out how much equity you have in your assets after application of exemptions. Why? Because, in Chapter 13, under your repayment plan you should pay your unsecured creditors (nomrally credit card debt or medical bills) the same percentage they would receive if you liquidated all of your assets after application of the exemptions - essentially, pennies on the dollar spread over the life of your Chapter 13 re-payment plan.
Many people file Chapter 13 because they are behind in their mortgage payments and just cannot catch up, but they want to keep their home. Chapter 13 gives the home owner the opportunity to keep their house.
Let's say Mrs. X pays $1000 monthly to her bank for her mortgage but she was out of work for a few months and fell behind 4 payments - she now owes the bank $4000 in past-due payments, called "mortgage arrearages". She tries to get a loan modification, but the bank just will not work with her. Mrs. X tells the bank she can still make her $1000 monthly mortgage payment if they would just let her spread out the $4000 she owes in mortgage arrearages over time. Mrs. X says to the bank, if you just let me spread the $4000 I owe in back payments over 36-months, I can catch up. The bank says "no". They tell her they are going to foreclose on her house.
[When a bank says the "f" word ("foreclosure") - take action. Please click on the articles under "foreclosure" on my blog to learn more about foreclosure - because in New Hampshire, the bank normally does not have to take you to court to foreclose on your home and you can be on the street in a matter of months.]
Mrs. X can force the bank to take her deal by simply filing Chapter 13 and sucessfully completing the same 36-month re-payment plan!
Friday, April 22, 2011
Get help before the foreclosure sale!
If you are told by your lender that you are on "foreclosure track" or in "foreclosure mode", even if you are trying to get a modification of your existing mortgage terms - get help fast!
Once a foreclosure sale is completed, the homeowner (no longer a homeowner after the foreclosure sale) has his or her options limited very much.
If you have a sale pending on your home and the lender properly notices you for a foreclosure sale, you may need to go to court to enjoin the lender's foreclosure sale until your have a reasonable opportunity to complete your own sale of your own home. If a sale of your own home will payoff your mortgage and leave you with a few dollars, it is worth the time and effort to try this.
Once the foreclosure sale is completed, the new buyer has 60 days to record the new deed, and you (as the foreclosed-upon person) will usually have thirty days to vacate your now foreclosed-upon home and the sheriff is usually involved in that process. It is an ugly experience for any homeowner to go through.
Lesson learned: When you are in foreclosure mode, get help. If you don't think you can afford a lawyer, contact the NH Bar Association and ask for a low income or pro bono referral. But, don't wait, and don't let a lender take advantage of you.
Tenants rights in foreclosure: If you are a tenant in a foreclosed property, you have rights too. The home help web site has good information for tenant's rights in a foreclosed building - click here for more information.
Once a foreclosure sale is completed, the homeowner (no longer a homeowner after the foreclosure sale) has his or her options limited very much.
If you have a sale pending on your home and the lender properly notices you for a foreclosure sale, you may need to go to court to enjoin the lender's foreclosure sale until your have a reasonable opportunity to complete your own sale of your own home. If a sale of your own home will payoff your mortgage and leave you with a few dollars, it is worth the time and effort to try this.
Once the foreclosure sale is completed, the new buyer has 60 days to record the new deed, and you (as the foreclosed-upon person) will usually have thirty days to vacate your now foreclosed-upon home and the sheriff is usually involved in that process. It is an ugly experience for any homeowner to go through.
Lesson learned: When you are in foreclosure mode, get help. If you don't think you can afford a lawyer, contact the NH Bar Association and ask for a low income or pro bono referral. But, don't wait, and don't let a lender take advantage of you.
Tenants rights in foreclosure: If you are a tenant in a foreclosed property, you have rights too. The home help web site has good information for tenant's rights in a foreclosed building - click here for more information.
Wednesday, April 20, 2011
New Hampshire Foreclosure Prevention Initiative
The State of NH provides some great resources for people who are having financial difficulties and want to stay in their homes, rather than losing their homes to foreclosure. One of them has been initiated by the governor, called the "New Hampshire Foreclosure Prevention Initiative" and I am part of that initiative. I assist in giving information at their seminars and I provide free consultations for home owners facing financial difficulties.
The goal is to get the information to the people who need it, so they can save their homes, if possible.
A primary resource is found on the HomeHelp web site, click here,
http://www.homehelpnh.org/reverse.htm
There is free counseling available for foreclosure prevention:
click here,
http://www.hud.gov/offices/hsg/sfh/hcc/fc/
Our "older" population is a target for mortgage modification and predatory lender scams, so if you are not sure if the organization you are seeking help from is reputable, call one of the numbers from the HomeHelp web site or call one of the free HUD counselors for information or advice.
Finally, something to think about as our aging population struggles to live on fixed incomes, and that is the reverse morgan option. Information on this option can be found on the HomeHelp web site, click here,
http://www.homehelpnh.org/reverse.htm
Lesson Learned: Avoid scam artists and start with your state agencies to learn more about solving your financial difficulties.
The goal is to get the information to the people who need it, so they can save their homes, if possible.
A primary resource is found on the HomeHelp web site, click here,
http://www.homehelpnh.org/reverse.htm
There is free counseling available for foreclosure prevention:
click here,
http://www.hud.gov/offices/hsg/sfh/hcc/fc/
Our "older" population is a target for mortgage modification and predatory lender scams, so if you are not sure if the organization you are seeking help from is reputable, call one of the numbers from the HomeHelp web site or call one of the free HUD counselors for information or advice.
Finally, something to think about as our aging population struggles to live on fixed incomes, and that is the reverse morgan option. Information on this option can be found on the HomeHelp web site, click here,
http://www.homehelpnh.org/reverse.htm
Lesson Learned: Avoid scam artists and start with your state agencies to learn more about solving your financial difficulties.
Monday, April 18, 2011
Foreclosure Seminar
The New Hampshire Department of Banking, along with
Patricia S. Gardner, Esq., and other Professionals,
is hosting a Seminar on April 19, 2011 from 6-8 p.m. on
"Alternatives to Foreclosure".
http://www.homehelpnh.org/
Presentations will include free help from the State on mortgage modification assistance, information about the foreclosure process
and bankruptcy.
It will be held at 1 New Hampshire Ave, 3rd Floor Conference Room in Portsmouth, NH. 03801 as hosted by the Gardner Law Firm.
There is plenty of free parking and the building is handicapped accessible.
There is no charge to attend, and it is intended to be an educational service for local residents.
Call 603-766-4933 for more information.
Knowledge is power!
Patricia S. Gardner, Esq., and other Professionals,
is hosting a Seminar on April 19, 2011 from 6-8 p.m. on
"Alternatives to Foreclosure".
http://www.homehelpnh.org/
Presentations will include free help from the State on mortgage modification assistance, information about the foreclosure process
and bankruptcy.
It will be held at 1 New Hampshire Ave, 3rd Floor Conference Room in Portsmouth, NH. 03801 as hosted by the Gardner Law Firm.
There is plenty of free parking and the building is handicapped accessible.
There is no charge to attend, and it is intended to be an educational service for local residents.
Call 603-766-4933 for more information.
Knowledge is power!
Wednesday, April 13, 2011
Am I a failure because I filed for bankruptcy protection?
Will people think poorly of me because I did so? A question that often bubbles to the surface in client meetings, even if never asked, it is there.
Inflation, rising property taxes, trying to help the kids, well you know what's next - use the credit cards to make ends meet. Then there are the school bills, kid's activities, medical bills, and you have run out of money. Retirement is no longer the "golden years" because social security payments just don't cover the bills.
There are a lot of reasons people need protection under the bankruptcy code, one of the most important being people just do not want to lose their home and they don't have to, because bankruptcy gives them a way of staying in their home and catching up on past due mortgage payments, while ridding themselves of credit card debt. Bankruptcy, because of the "exemptions", (please read my blog article on exemptions) allows you to keep a reasonable level of assets, which in most homeowner’s cases is all of the assets they have.
When you decide to address your difficult financial position, you succeed. The solution may be a credit consolidation loan, or it may be a loan modification program with the lender who holds your home mortgage. You may use Chapter 13 of the bankruptcy code to catch up on your overdue car and home loan payments. In any event, when you face the problem and decide to find a solution, you are never a failure. Sometimes, bankruptcy is simply the answer.
You have decided that you will control the outcome of a difficult situation, rather than letting it control you.
Thursday, March 31, 2011
New Hampshire Foreclosure - HELP!
A familiar phone call:
"Hi, I just got a letter from my bank where I have my mortgage and the letter says the bank has scheduled a foreclosure sale - should I be worried?"
The answer to is "yes"!
New Hampshire is a non-judicial foreclosure state. That means, if the lender who holds your mortgage has a "power of sale" clause in the mortgage (and most home lenders do have this clause) then the bank is not required to go to court to take your house if you fall behind in payments. They send you a notice of default, that if not timely corrected, the lender can then schedule a foreclosure sale of your house - the lender must give you at least 25 days notice prior to the sale and publish the notice of the sale three weeks in a row in the newspaper 21 days prior to the sale. So, start to finish, you could be out of your house in four months, depending upon how aggressive your lender is. Real life, most traditional lenders these days are swamped with people who are behind in their mortgage payments, and facing a slew of foreclosure sales.
Click below to see a a chart of the foreclosure timeline, from start to finish, that shows how you can lose your home in 4 months and be evicted and on the street in five months.
http://www.homehelpnh.org/timeline.htm
The state has a wonderful web site with valuable information on understanding your situation. For example, you can receive free help from a HUD counselor to learn if you qualify to modify your mortgage to a more affordable payment than what you are now paying
click here for more information:
http://www.makinghomeaffordable.gov/get-assistance/explore-eligibility/Pages/eligibility.aspx
or:
http://www.makinghomeaffordable.gov/programs/lower-payments/Pages/default.aspx
Once the house is sold at the bank's foreclosure sale, you do not have a right to buy it back, so, if staying in your home is what you want to do, then check out the above programs and see if they help you.
You also have available the right to file a Chapter 13 bankruptcy, often called the "home owner's" bankruptcy because it allows you up to five years to pay back the mortgage arrearages. Bankruptcy stops creditor action against you and gives you a chance to breathe.
For more information, contact:
web site: www.GardnerBusinessLaw.com
"Hi, I just got a letter from my bank where I have my mortgage and the letter says the bank has scheduled a foreclosure sale - should I be worried?"
The answer to is "yes"!
New Hampshire is a non-judicial foreclosure state. That means, if the lender who holds your mortgage has a "power of sale" clause in the mortgage (and most home lenders do have this clause) then the bank is not required to go to court to take your house if you fall behind in payments. They send you a notice of default, that if not timely corrected, the lender can then schedule a foreclosure sale of your house - the lender must give you at least 25 days notice prior to the sale and publish the notice of the sale three weeks in a row in the newspaper 21 days prior to the sale. So, start to finish, you could be out of your house in four months, depending upon how aggressive your lender is. Real life, most traditional lenders these days are swamped with people who are behind in their mortgage payments, and facing a slew of foreclosure sales.
Click below to see a a chart of the foreclosure timeline, from start to finish, that shows how you can lose your home in 4 months and be evicted and on the street in five months.
http://www.homehelpnh.org/timeline.htm
The state has a wonderful web site with valuable information on understanding your situation. For example, you can receive free help from a HUD counselor to learn if you qualify to modify your mortgage to a more affordable payment than what you are now paying
click here for more information:
http://www.makinghomeaffordable.gov/get-assistance/explore-eligibility/Pages/eligibility.aspx
or:
http://www.makinghomeaffordable.gov/programs/lower-payments/Pages/default.aspx
Once the house is sold at the bank's foreclosure sale, you do not have a right to buy it back, so, if staying in your home is what you want to do, then check out the above programs and see if they help you.
You also have available the right to file a Chapter 13 bankruptcy, often called the "home owner's" bankruptcy because it allows you up to five years to pay back the mortgage arrearages. Bankruptcy stops creditor action against you and gives you a chance to breathe.
For more information, contact:
web site: www.GardnerBusinessLaw.com
Monday, December 27, 2010
Foreclosure Timeline
A non-judicial foreclosure in New Hampshire can happen very quickly.
A homeowner could lose their home in just a few months if they are behind in their mortgage payments.
Take a look at the following time line from the HomeHelp web site to understand the process:
http://www.homehelpnh.org/timeline.htm
POSTED BY,
PATRICIA S. GARDNER, ESQ.
THE GARDNER LAW FIRM
All Mail to: PO Box 453, Newmarket, NH 03857
Portsmouth Office: One New Hampshire Ave, Suite 125,
Pease International Tradeport, Portsmouth, NH 03801
Phone: (603) 766 - 4933 Fax: (603) 292 - 5207
Newmarket Office. PO Box 453 New Market, NH 03857. Call (603) 766 - 4933.
CONFIDENTIALITY NOTICE: This transmission contains information that is privileged, confidential
and/or exempt from disclosure under applicable law and is intended only for the recipient(s) listed
above. If you are not the intended recipient(s) nor a person responsible for the delivery of this trans-
mission to the intended recipient(s), you are notified that any disclosure, copying, distribution,
or use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED.
If you received this transmission in error, immediately contact the sender at (603) 292-5119 and
destroy the material in its entirety, whether in electronic or hard copy format. Personal Information:
Do not email personal information.
IRS Circular 230 Disclosure: In compliance with Treasury
Department Regulations, we inform you any U.S. tax advice contained in this communication
including any attachments is not intended or written to be used by any taxpayer, and cannot be used,
for the purpose of avoiding penalties under the Internal Revenue Code or any other U.S. taxing authority
that may be imposed on the taxpayer; or promoting, marketing or recommending to another party any
transaction or matter addressed herein.
NOTICE: We are a debt relief agency. We help people file for
bankruptcy relief under the U.S. Bankruptcy Code.
email to:GardnerBusinessLaw@gmail.com
web site: http://www.smallbizlawandbankruptcynh.com/
blog: http://gardnerbusinesslaw.blogspot.com/
A homeowner could lose their home in just a few months if they are behind in their mortgage payments.
Take a look at the following time line from the HomeHelp web site to understand the process:
http://www.homehelpnh.org/timeline.htm
POSTED BY,
PATRICIA S. GARDNER, ESQ.
THE GARDNER LAW FIRM
All Mail to: PO Box 453, Newmarket, NH 03857
Portsmouth Office: One New Hampshire Ave, Suite 125,
Pease International Tradeport, Portsmouth, NH 03801
Phone: (603) 766 - 4933 Fax: (603) 292 - 5207
Newmarket Office. PO Box 453 New Market, NH 03857. Call (603) 766 - 4933.
CONFIDENTIALITY NOTICE: This transmission contains information that is privileged, confidential
and/or exempt from disclosure under applicable law and is intended only for the recipient(s) listed
above. If you are not the intended recipient(s) nor a person responsible for the delivery of this trans-
mission to the intended recipient(s), you are notified that any disclosure, copying, distribution,
or use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED.
If you received this transmission in error, immediately contact the sender at (603) 292-5119 and
destroy the material in its entirety, whether in electronic or hard copy format. Personal Information:
Do not email personal information.
IRS Circular 230 Disclosure: In compliance with Treasury
Department Regulations, we inform you any U.S. tax advice contained in this communication
including any attachments is not intended or written to be used by any taxpayer, and cannot be used,
for the purpose of avoiding penalties under the Internal Revenue Code or any other U.S. taxing authority
that may be imposed on the taxpayer; or promoting, marketing or recommending to another party any
transaction or matter addressed herein.
NOTICE: We are a debt relief agency. We help people file for
bankruptcy relief under the U.S. Bankruptcy Code.
email to:GardnerBusinessLaw@gmail.com
web site: http://www.smallbizlawandbankruptcynh.com/
blog: http://gardnerbusinesslaw.blogspot.com/
Subscribe to:
Posts (Atom)