If The Lender Asks For An Order Nisi
At the first court hearing in a foreclosure action, the lender asks the court for an order nisi. This order sets the length of the redemption period, which is the time period during which you can redeem, or pay off, the mortgage. The order nisi also includes a personal judgment against you for the amount you owe.
Under the law in BC, the default redemption period is six months. However, the court can order that it be shortened or extended. One good reason to attend the court hearing is to ask the judge for as much time as possible to get the money to pay off the mortgage or sell the home.
Tip
Courts rarely order a redemption period longer than six months. What is more common is to apply later to extend the redemption period beyond six months. You will need to show you have enough equity in the property to pay the lender the amount owed. You also need to show theres a reasonable chance of payment within the added time.
Applying For Loss Mitigation
Under federal law, if you send the servicer a complete loss mitigation application after foreclosure starts, but more than 37 days before a foreclosure sale, the servicer canât ask a court for a foreclosure judgment or order of sale, or conduct a foreclosure sale, until:
- it tells you that youâre not eligible for any loss mitigation option
- you reject all loss mitigation offers, or
- you donât abide by the loss mitigation agreement, like by not making payments on a trial modification.
The foreclosure stops if you get approved for a loss mitigation option, like a loan modification.
But just applying for a foreclosure alternative probably wonât buy you a lot of time. Generally, the servicer must review your application within 30 days and proceed with the foreclosure when any of the three conditions mentioned above is satisfied. Also, the servicer doesn’t have to review more than one loss mitigation application from you. However, if you bring the loan current after submitting an application, and then submit another one, the servicer must consider your subsequent application.
Some states also have a law that prevents a foreclosure from going forward if the borrower submits a loss mitigation application.
While the COVID-19 national emergency continues, homeowners with a federally backed mortgage loan who’re experiencing a financial hardship because of the coronavirus crisiscan get a forbearance.
Other Options To Consider
If you’re having trouble making your mortgage payments, consider looking into other foreclosure prevention options. A few different options to consider include getting a loan modification, reinstating the loan, working out a repayment plan, or giving up the property in a short sale or deed in lieu of foreclosure.
You might also consider selling the home and moving to more affordable accommodations.
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How Can I Stop Foreclosure
For the hundreds of thousands of homeowners confronted by it each year, foreclosure can be an emotionally and even physically draining experience. Fortunately, you may be able to stop foreclosure by tackling the situation head-on and taking proactive steps to turn things around.
Foreclosure occurs when a borrower falls behind on mortgage payments, and the lender that extended the loan seizes the property and sells it to try to recover at least some of the money that the property owner borrowed. In many cases, a lender won’t start the foreclosure process until a mortgage is 120 days past due.
In March 2020, with a pandemic-caused recession looming, the Department of Housing and Urban Development established a moratorium on foreclosures for single-family homes purchased with a federally backed mortgage. That moratorium has subsequently been extended to at least June 30, 2021.
Moratoriums were almost certainly a big reason why the number of foreclosure filings fell to a 16-year low in 2020. Filings affected fewer than 215,000 homeowners last year, according to a review of foreclosure filings by ATTOM Data Solutions, a stark contrast to the more than 1.2 million foreclosures in 2007the first year of the Great Recession. Foreclosures peaked at 2.87 million in 2010, the year after that recession was declared over.
Take The Case To Chicago Courts
A court action against the lender to stop foreclosure is the last effort most attorneys will suggest you take. Court action can be a time-consuming and expensive process, and there is never a guarantee of the outcome. If you involve court action in fighting foreclosure, it is usually through bankruptcy court or filing a claim of equity.
Bankruptcy
If your financial circumstances warrant bankruptcy, the bankruptcy court may address your foreclosure. If the deed of trust has not been prepared and recorded, there is a potential that the judge can find that the sale is not final and is in fact void at the time of the bankruptcy filing. Foreclosure attorneys often also handle bankruptcy cases or work closely with attorneys who will address the bankruptcy court on your behalf.
Equity
Equity in the legal sense is fairness. You can seek to stop foreclosure based on a lawsuit of equity against the lender. Your attorney would argue all the facts and circumstances of your situation and ask a court to find that foreclosure is simply not fair. If the lender has sought and obtained a decree of foreclosure, courts may not consider an equity case. But if not, an equity suit is an option, but it is an uphill battle and therefore not often pursued.
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How To Stop Foreclosure: Filing For Bankruptcy
One way of stopping a foreclosure is by filing for bankruptcy. Bankruptcy is a process by which you declare yourself financially insolvent and unable to meet your current financial obligation. Depending on your circumstances and the type of bankruptcy you file for, you either get essentially a clean slate or an opportunity to rearrange your debts into something more manageable. In either case, a bankruptcy halts the foreclosure of your home.
A lender can contest the stoppage of the foreclosure in bankruptcy court, but that can not happen for at least 30-60 days from the date of filing. The advantage here for the borrower, though, is that it buys time to find a resolution to the delinquent mortgage dilemma. There are two kinds of bankruptcy, Chapter 13 and Chapter 7, which we will go into more detail in the following sections.
Work It Out With Your Lender
This is a good option if you had a temporary setback that prevented you from making your mortgage payments for a period of time and are now able to continue making payments in full each month, but cant afford to pay back the missed payments in one lump sum.
Your lender may be willing to work out a repayment plan to get your past-due loan back on track, provided you wont have trouble continuing to make payments going forward. As part of this repayment plan, the lender will take the amount you owe in missed payments and add increments of it to your regular monthly payments, allowing you to pay back what you owe over a specified time period.
As you work with your lender to create a new payment plan, be sure to honestly evaluate what you can afford to pay back each month and dont agree to pay more than what you know your budget can handle. Ask about other mortgage relief options. Depending on the situation, your lender may offer one of the options below.
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Communicate With Your Lender When Youre In Trouble
When you know that your payment will be delayed or absent one month, get in touch with your lender right away. Explaining the issue is far better than letting the lender think youve forgotten to pay, disappeared, or are dodging their inquiries. This is the moment to ask for a clear plan for repaying any missing payments, one that you believe you can realistically stick to.
If you have the ability to show why you werent able to make this payment and why it wont happen again, this can help your case in requesting a reasonable payment plan to follow.
Bring Your Loans Current
Bringing the loan current means that you pay the total amount past due. You can stop the foreclosure process by informing your lender that you will pay off the default amount and extra fees. Your lender would prefer to have the money much more than they would have your home, so unless there are extenuating circumstances, this should work. Unfortunately, this option isnt viable for most people, because most people dont have the money to bring their loan current.
How financially fit are you?
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Discuss Options For Forbearance Or Loan Modification
Realistically, some financial obstacles create longer-term issues than just one missing payment. If you have a situation that means you might skip two or more payments, it is still best to talk to your lenderit doesn’t want the difficulties associated with repossessing your house. Your lender can review your situation and discuss options for either forbearance or loan modification.
In a loan modification, you might have longer to pay down your mortgages total balance in exchange for a more affordable monthly payment. With forbearance, you would get time, usually a few months, in which youre allowed to pay nothing, with all the missed payments due at the end of the forbearance.
Sometimes, just getting rid of the pressure to pay every month is enough to assess your whole financial picture and marshal the resources you have to keep your home.
Seek Special Relief: Cares Act And Covid
Your local, state, or federal government may issue a mandate that will protect you from foreclosure in rare circumstances. Times of a nationwide recession, health crisis, or natural disaster may initiate laws to help homeowners. The relief may come in the form of:
- Forgiveness of missed payments
- Forbearance of payments or
- A ban on foreclosures for a period of time.
During the pandemics national health crisis , the United States government created the Coronavirus Aid, Relief and Economic Security Act. One purpose of the act was to help homeowners keep their homes during the pandemics health and financial crisis. The CARES Act:
- Gave a minimum of a 60-day suspension of foreclosures against homeowners
- Stopped lenders from taking any legal action that could lead foreclosure and
- Prohibited lenders from finalizing existing foreclosure-related evictions.
There were specific criteria to receive CARES assistance. For instance, a homeowners mortgage must be federally held to qualify. You can read more about CARES by reviewing the CARES Act Fact Sheet and information from the Consumer Financial Protection Bureau.
If you were facing foreclosure before the CARES Act, its possible that laws will continue to protect you from foreclosure for the foreseeable future. Also, the state of Illinois strongly encouraged financial institutions to pause payments for individuals during this public health emergency.
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Modify Your Current Loan
One of the first steps to take is speaking with your loan lender. Communicate with them about your missed payments and your current financial struggles. Be open and honest with them from the very first missed payment.
The two of you may be able to work something out to help the situation. You can consider asking the lender to extend the length of the loan. When the loan is extended, youll pay less each month but for a longer period of time.
However, in the meantime, youll have reduced monthly payments. You may also want to consider asking the lender to decrease the interest rate on the loan. Keep in mind that its much easier for the lender to work something out with you than have to go through the foreclosure process.
During the pre-foreclosure stages, if you and the lender can come to an agreement, then the foreclosure process ends and regular payments on the loan will continue.
What Happens To Your Credit After Foreclosure
Homeowners facing foreclosure might also wonder how the process will affect their credit, even if they manage to stop the foreclosure process before its finalized.
It depends how the foreclosure is stopped, Richardson says. Credit scores are based on late payments, among other things. A loan modification and short sale will both stop late payments.
That said, your credit will repair faster on a short sale because you will be paid in full for less than the amount owed, Richardson says. Still, a short sale will leave you without a home, so its up to you to determine which option is the lesser of two evils.
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Common Questions About Bankruptcy Foreclosure
A common question about foreclosure vs mortgage bankruptcy is how the process works. Many people wonder if theyll lose their home or not, what rights their mortgage lender has, or if getting a loan will help them. Some of your questions might be answered in the information above.
In Canada, when you declare bankruptcy, your mortgage isnt automatically in foreclosure. Your mortgage is a secured debt, so it isnt included in your bankruptcy. The rules in each province are a little different, so your trustee will explain what happens to your home and your mortgage if you declare bankruptcy, and how declaring bankruptcy can affect foreclosure.
Loans To Stop Foreclosure
Once you have mortgage arrears, it is difficult to find a lender who is willing to help you catch up. Especially since traditional big banks are not in the business of bailing clients out of a jam. If you are behind on your mortgage you will likely find that your mortgage lender wants little to do with you.
With this in mind, it is imperative that you act quickly. It is essential you find loans to stop foreclosure or loan modification to stop the power of sale. Working with a mortgage broker who specializes in loans to stop foreclosure is imperative if you want the bank to sell the property. Only a small percentage of mortgage brokers deal with mortgage debt. For this reason, you will need to find a mortgage broker who has access to a variety of lenders.
An experienced mortgage broker will have access to both institutional and private lenders who understand the foreclosure process. Their lenders will be willing to overlook a variety of challenges like a poor credit score or income challenges. An experienced broker will have lenders who approve deals based on the amount of equity in a borrowers home and can help you avoid foreclosure, bringing your mortgage back into good standing.
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Negotiate With The Lender To Resume Payments
If you can pay the money you owe to the lender due to missed mortgage payments, now or shortly, you may be able to save your home. Your mortgage is a loan. A bank is usually the lender of the mortgage. Foreclosure is the lenders process for taking a homeowners property because the homeowner failed to make agreed-upon payments to pay back their loan. The lender forecloses to take the property and sell it.
The sale of the foreclosed property is the typical way the lender gets its money back. But suppose you can demonstrate your ability to pay the lender the money you owe and stay current with future payments. In this case, your lawyer may be able to negotiate with the lender to stop your foreclosure. There are a couple of ways to do this.
Pay the Amount Past Due in Full Now
Your attorney can call your lender and determine precisely how much you owe the lender. If you can pay that full amount, the attorney will contact your lender immediately. They will make an offer for you to pay the full amount in arrears and your next mortgage payment due in a timely manner. In return, they will ask that the lender end the foreclosure process.
Get on a Payment Plan
Another option is to catch up on the arrears over time. Your lawyer can work with you to determine what amount you can pay beyond your standard mortgage amount. They can then negotiate with the bank for you to pay this additional amount until you catch up on your past due amount.
Why Work With Lendtoday
When you’ve been served a statement of claim or you’ve been notified that your lender intends to pursue a power of sale, it’s easy to feel overwhelmed. Here’s a list of common questions about mortgage foreclosures:
In 2020, the Bank of Canada expressed concern about the potential for mortgage defaults to quadruple. But while missed payments are the most common form of mortgage default, financial missteps aren’t the only way that you can default on your mortgage.
For instance, you can be considered in default by:
- Not paying your property taxes
- Not insuring your property if your lender required it
- Letting the property become damaged
According to Investment Executive, 53 percent of Canadians were living paycheck to paycheck in 2019. As such, missed payments are more common than you might think.
For this reason, the best way to reinstate your mortgage after a default is to focus on paying off your outstanding debts as quickly as possible.
Sadly, yes.
In the past, credit bureaus didn’t receive reports on mortgage payments. But now that the rules have changed, a foreclosure will fall under the general category of “negative credit information”.
According to the Government of Canada, this information will appear on your credit score for six years.
Bankruptcy can discharge unsecured debts. But mortgage loans are secured against the value of your home.
None of those individuals were able to stop the foreclosing process through their bankruptcy proceedings.
Not necessarily.
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