Facing Mortgage Foreclosure: Don’t Jump Ship or Walk Away!

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Falling Behind Mortgage Payments

A borrower facing foreclosure should not simply walk away from the property. The lender might agree to modify the loan. Often, the lender’s first notice to the defaulting borrower includes information about possible modification or repayment arrangements. That is why it is important for the borrower who stopped making mortgage payments to still open mail from the lender. In the past, it was difficult to get lenders to make many concessions with borrowers who got behind on their mortgages, but in this sluggish real estate economy, lenders are more willing to bargain. The lender might recover very little for the property or have to hold onto it for a long time, costing money for taxes, upkeep, and insurance.

Available Resources

If default is due to a sudden increase in payments, the borrower may be able to get a new mortgage under the federal program, FHA Secure. If the homeowner’s dire situation is temporary, the borrower can reinstate some types of mortgages by catching up on the payments. Some homeowners may be able to take advantage of the Foreclosure Prevention Act of 2008 which includes offering the borrower increased tax credits. And even if the property cannot be saved, borrowers with government-insured loans (FHA, VA, and USDA) often have additional rights to modify or reinstate their mortgages. These borrowers should contact a housing counselor certified by the relevant agency for advice.

Seeking Advice

Many Legal Aid programs offer representation or advice to people in foreclosure. It’s worth calling the local Legal Aid office, even if the defaulting borrower doubts eligibility for Legal Aid’s assistance. The office may be able to refer you to a real estate lawyer who will work for a reduced fee.  

When You Can’t Save the Property

A Short Sale

Sometimes the lender will agree to a short sale. This is a sale of the property for less than the mortgage amount, after which the lender forgives any loan balance not covered by the sale price. Lenders will agree to this arrangement because it saves them the cost of selling the property and maintaining it until it is sold. Borrowers benefit because they avoid a deficiency judgment. This will not usually work if the borrower has a second mortgage, but even then, it’s worth asking the lender to agree to a short sale.

A Deed in lieu of Foreclosure

The borrower might consider signing over the deed to the lender. The lender saves the cost of foreclosing on the property. The borrower avoids a deficiency judgment.

Impact on Your Credit Rating

Sometimes borrowers wonder if a deed in lieu of foreclosure or a short sale will affect their credit score differently from a foreclosure. For most purposes, all methods have similar effects on the defaulting borrower’s credit. However, choosing an option other than foreclosure ends the process sooner. This may offer you an advantage later, because over time the credit score will get better assuming the foreclosure is the last negative entry.

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