Your House is in Foreclosure: What Should You Do?

03 Feb Your House is in Foreclosure: What Should You Do?

Your house is in foreclosure, the mortgage company is calling you every day. They make it sound like they’re going to come and put your stuff out on the street any minute. You’ve heard about, or read about, or even applied for a mortgage modification. You’ve also heard about short sales and deeds in lieu of foreclosure. And then there’s Chapter 13 bankruptcy. So which is the right option, and how do you decide? I’ll divide this post into two parts, so it doesn’t get too heavy.

Let’s take mortgage modification first. If you have already applied for modification, and been turned down, that should be some indication that it may not be your best option. Sometimes though, circumstances have changed, and that might change the outcome. When I’m advising clients about whether to continue to hold out hope of a mortgage modification, the first thing I look at is the equity in the property. It is very rare to see a meaningful modification offered when the client has equity in the property. In other words, and it makes perfect sense, the mortgage company is only likely to offer you a modification when they stand to lose in a foreclosure. If they’re not going lose anything, the chances are they’re not going to offer you a modification. There may be exceptions; there may be mortgage bankers out there with a heart. I just wouldn’t hold my breath.

The other thing to consider is whether you qualify for help under the federal government’s HAMP modification program, or some similar government-sponsored program. For example, under Hamp, you are not eligible for modification if your existing mortgage payment is less than 31% of your gross income. The mortgage company may let you apply, and the mortgage company may have other programs that you could qualify for. But, you’re looking to be eligible for one of the biggest, and if you’ve already been turned down, you may want to focus your efforts on another solution.

Even if you clearly qualify for help under HAMP, or some other program, you can still be turned down. The paperwork can be a nightmare, and if you’re not good at paperwork, you may just want to take a pass on the whole process. You can find any number of people who can tell you about the frustrating experience of trying to produce the paperwork a mortgage lender requires, over and over again, to no avail. Everyone that I know who has been rewarded with a meaningful modification has been extremely persistent, and has stayed on top of the paperwork. If you’re going to go the modification route, expect to have to do the same.

So when should you consider a short sale? A short sale involves your lender agreeing to take less than the full balance due when you sell the property. Obviously, it is a sale, and doesn’t allow you to keep the property. Therefore, if your goal is to keep your house, there’s not really much point in discussing or attempting a short sale. A short sale assumes that you are underwater, i.e., you owe more on the house than it’s worth. Of course, as in most parts of the country, it’s hard to get a sale of any kind. When you add the complication of a short sale to the equation, it may be even more difficult. You have to find a buyer who not only wants your particular house, but he’s willing to wait, sometimes for an extended period of time, for an answer from the lender. I have yet to see a lender who was willing to agree to a short sale before an actual offer had been received. There are other factors to consider when trying to decide whether to attempt a short sale. In addition to the ordinary inconveniences of getting your house ready to show, and keeping it in that condition, a short sale also requires a knowledgeable closing attorney, who is willing to do some extra work to get the sale closed. It probably also takes a knowledgeable and experienced real estate agent, who’s also willing to go the extra mile. The benefits to a short sale can be significant. A short sale can keep your house out of foreclosure, and if that’s the only potential black mark on your credit report, it may be worth the time and trouble. It can also, in the right situation, help you avoid a deficiency, that is, owing the mortgage company after your property is sold.

In part two of this post, I’ll discuss the pros and cons of a deed in lieu of foreclosure, and the circumstances under which you should consider a chapter 13 bankruptcy in order to save your home, as well as the circumstances which may warrant a Chapter 7 filing.

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.
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