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Founded in 1997 we are experienced and knowledgeable Tampa attorneys practicing exclusively in Divorce, Family, Stepparent/Relative Adoption, Criminal Defense, and Personal Bankruptcy. We practice primarily in the cities of Tampa, Riverview, Brandon, Valrico, Lithia, Carrollwood, Northdale, North Tampa, Plant City as well as Hillsborough County, Pinellas County and Pasco County. We have offices conveniently located throughout Tampa Bay. Our lawyers have extensive experience practicing in contested and uncontested divorces, including military divorces, and family law, child support, child custody and visitation, relocation of children, alimony, domestic violence, distribution of assets and debts, retirement/pensions (military and private), enforcement and modification of final judgments, paternity actions, adoptions and name changes as well as criminal defense. We offer a free consultation to discuss your options. Please call us at 813-672-1900 or email us at info@familymaritallaw.com to schedule a consultation. Our representation of our clients reflects our dedication to them. We look forwarding to hearing from you! Se habla EspaƱol.
Showing posts with label foreclosure. Show all posts
Showing posts with label foreclosure. Show all posts

Monday, July 9, 2012

What Happens in a Foreclosure

See my website at http://www.familymaritallaw.com/CM/Bankruptcy/Chapter-13-Bankruptcy.asp for information on how a chapter 13 bankruptcy can help you avoid foreclosure and catch up on any arrearages. Chapter 7 bankruptcy, unfortunately, does not allow you to do this; however, it will delay the foreclosure through the date of discharge or if the creditor motions to lift the automatic stay, the date an order is signed by the Court allowing the automatic stay to be lifted.

(Note that not all of the following article is valid in Florida.)
Copyright © 2011 FindLaw, a Thomson Reuters business

Certain creditors may have special rights when faced with collecting bad debts. One of these rights is the availability of a procedure called foreclosure. Foreclosure is most often exercised in relation to unpaid mortgages on real property. In a foreclosure proceeding, the creditor exercises its option under the mortgage to force a sale on the property that is the subject of the mortgage in order to use the proceeds to pay the debt.

The rights of a mortgagee (usually the lender; commonly a bank or mortgage company), when the mortgagor (borrower or homebuyer) defaults, vary considerably from state to state. There are, however, a number of similarities. Generally, there are only two types of foreclosure sales: a judicial sale and a sale pursuant to a power of sale clause contained in the mortgage documents. Judicial sales are more common. Although the details of judicial sales are mainly a matter of local law, they usually require notice of a hearing, a judicial determination of default, notice of sale, a sale, confirmation of a sale, possible redemption and entry of a judgment for any deficiency (the difference between the sale amount and what is owed on the debt).

In order for a mortgagor to avoid a judicial foreclosure once he or she has defaulted in making scheduled payments, the entire debt must be paid. In about half of the states, the period in which the mortgagee can exercise this option, or redeem the debt, extends even beyond actual foreclosure. In that case, the redemption amount is the sale price plus interest, not the amount of the debt secured by the mortgage.

In a judicial foreclosure, the sale is not enforceable by the buyer until it has been confirmed by the court. Legal rules limit the court's discretion on whether to confirm the sale. Mere inadequacy of price without more is not enough to justify the court's refusal to confirm a foreclosure sale, but adequacy of price is a primary concern. In many states, the property must be appraised before the foreclosure sale, and the sale will not be confirmed unless the sale price is at least a certain percentage of the appraised value.

Because judicial foreclosures are time consuming and procedurally complicated, some mortgagees include in their standard mortgages a power-of-sale provision permitting a sale without any court involvement if the mortgagor defaults on the payments. This approach has only limited recognition in the United States. In the states that do allow it, the sale must be public and preceded by a notice (usually by advertisement) that specifies the amount due, the property description, the date and location of the sale and whatever other matters the statute and the mortgage specify. Because courts tend to be critical of non-judicial sales, they are quick to grant relief against such sales for even slight irregularities. This reluctance to accept non-judicial sales can result in uncertainty of title, which could be the main reason that power-of-sale foreclosures have failed to gain greater acceptance.

Due to the important rights involved, debtors facing the prospect of foreclosure and loss of their homes can benefit from the advice of counsel experienced in this area. Attorneys working in this area can also assist borrowers proactively by reviewing the mortgage documents before the borrowers sign them, in order to protect the borrowers' rights and eliminate provisions that do not serve the borrowers' best interests, such as power-of-sale clauses. On the other hand, lawyers representing creditors can guide them through the sometimes cumbersome foreclosure process and aid them in the recovery of the money that they are rightfully owed.

Copyright © 2011 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.


Monday, January 10, 2011

Mortgage Loans Discharged In Chapter 7 Bankruptcy

Mortgage loans can be discharged in Chapter 7 bankruptcy proceedings so that homeowners no longer have to worry about paying an expensive loan when their income has dropped. But with a discharge, the owners will not be able to keep their house, as the bank will receive the collateral back as a result of the loan being eliminated. So there must be other reasons for owners to consider this tactic, since it does not actually save the house.

The main benefit of doing this is that homeowners are able to stop foreclosure from moving any further along in the legal process, meaning no more court documents, lawsuit paperwork, sheriff sale dates, or eviction hearings. Even if the borrowers move out of their house before the foreclosure process is complete, the courts will still move ahead with the necessary procedures to sell the house to satisfy the mortgage lien. Discharging the mortgage through bankruptcy ends this sequence of events.

Another important reason to consider filing Chapter 7 to eliminate the mortgage and move out of the house is the possibility of avoiding deficiency judgments after foreclosure. Although few banks sue again after the sheriff sale for any difference between what was owed and what the property sold for, it may be best just to discharge the mortgage and not worry about any further lawsuits regarding this property.

Bankruptcy is an important legal defense that homeowners have against unmanageable debt burdens and aggressive collections efforts, whether they are from credit cards, collection agencies, or mortgage companies. Collectors will never give up trying to go after a debt, and every day of the foreclosure process can be a nerve-wracking experience. Although the social stigma of bankruptcy may be severe, many debtors will liberated and generally much feel better with a fresh start and no extra debt.

www.FamilyMaritalLaw.com

Thursday, December 23, 2010

Are people who file for bankruptcy "using the system"?

As a bankruptcy attorney, I was asked by a criminal law attorney whether I thought people were acquiring debt with the intention of discharging it in bankruptcy. I assured this attorney that this was NOT the case. The overwhelming majority of clients we have had and have are devastated by having to file for bankruptcy. There may be a few that “work the system”, but that is the exception.

Furthermore, I can also vouch through my experience that the majority of people who are on unemployment compensation would much rather be working. They are making a minimal amount of money on unemployment which doesn’t even begin to cover the income they received when they were working. Without even the income to pay their living and food expenses, unpaid debt starts accruing and creditors add fees and raise interest rates and the amount owed increases rapidly, making it even more impossible to pay back. It’s a no win situation.

My advice if you are falling behind on paying your debt is that you do not use equity from your homestead or use funds from your retirement accounts as both of these assets are usually exempt in bankruptcy. In essence, if you cannot pay your bills, do not devastate yourself even more financially by using up assets which you may keep if you must file for bankruptcy. I have seen too many clients who have done so and they are destitute. Many of these people should be retired, but they don't have the means to retire.

Beware of Foreclosure Rescue Scams. Help is Free!

There is never a fee to get assistance or information about the Making Home Affordable program from your lender or a HUD-approved housing counselor.

For a HUD-approved counselor, visit: http://www.hud.gov/offices/hsq/sfh/hcc/fc

Beware of any person or organization that asks you to pay a fee in exchange for housing counseling services or modification of a delinquent loan.

Beware of anyone who says they can “save” your home if you sign or transfer over the deed to your house. Do not sign over the deed to your property to any organization or individual unless you are working directly with your mortgage company to forgive your debt.

Never make your mortgage payments to anyone other than your mortgage company without their approval.

Sunday, November 14, 2010

Reasons to Delay or Speed Up Your Bankruptcy Filing

There are many factors to consider when deciding when you should file for bankruptcy. Here are a few common reasons for delaying or speeding up a bankruptcy filing.

Reasons to Delay a Bankruptcy Filing

Your income recently decreased. One good reason to delay a filing is if your income over the last six months puts you over the means test limit but a recent decrease in your income would put you under the limit if you waited a month or two to file. Remember, the means test is based on your average gross income received during the six-month period just prior to the month you file. So, if you file in October you would average your income during the months of April through September.

You face foreclosure but the sale is not yet scheduled. An impending foreclosure is another reason to delay you filing (or speed it up, see below). If the foreclosure sale hasn't been scheduled yet, you may want to delay your filing until the sale is both scheduled and close to taking place. This tactic will result in a delay of the sale for at least two months and sometimes longer, which will give you an extra couple of months of payment-free shelter.

Certain credit card use. Still another reason to delay filing is if you used a credit card within the previous 90 days or obtained cash advances within the previous 70 days. If the credit card charges totaled more than $550 on any one card and were for luxuries, or the advances on any one card exceeded $850, the creditor can obtain a court ruling that the charges or advances will not be discharged in your bankruptcy. If you have recent charges or cash advances that might survive your bankruptcy you should consider delaying your filing until the three month or 70-day period has expired.

Other reasons. Other common reasons you might want to delay filing are:

•you made preferential payments to creditors (wait 90 days or one year to file, depending on the type of creditor)
•you transferred property for less than fair value within the past two years and the property is valuable enough that the bankruptcy trustee may go after it (typically over $1,000)
•you had a previous bankruptcy case dismissed within the past year (or in some cases within the previous 180 days)
•you are seeking a mortgage modification (the bankruptcy may bring the modification process to a screeching halt)
•you are seeking to discharge back income taxes (wait until three years have passed since the taxes first became due or until two years have passed since you filed a return), or
•you filed a previous bankruptcy in which you obtained a discharge (wait until you are eligible to file again).
Reasons to Speed Up Your Bankruptcy Filing

Sometimes, you'll want to file for bankruptcy right away. If your income greatly increased during the last few months, but was much lower during the previous three or four months, the sooner you file the better your chance of passing the means test. Also, if your house is in foreclosure and the sale is scheduled and you want to delay the sale, you should file for bankruptcy immediately.

To learn more about choosing the right time to file for bankruptcy, see Nolo's article Should I File Bankruptcy Now or Wait? Or visit, Nolo's Bankruptcy Center for articles, FAQs, Legal Updates, books, and software on bankruptcy.

http://www.bankruptcyforeclosureblog.com/2010/11/timing-your-bankruptcy-filing.html

http://www.FamilyMaritalLaw.com

Friday, October 8, 2010

Bank of America Halts Foreclosures in 50 States

WASHINGTON – Potential flaws in foreclosure documents are threatening to throw the real estate industry into a full-blown crisis, as Bank of America on Friday became the first bank to stop sales of foreclosed homes in all 50 states.

The move, along with another decision on foreclosures by PNC Financial Services Inc., adds to growing concerns that mortgage lenders have been evicting homeowners using flawed court papers.

See the following link:

http://news.yahoo.com/s/ap/20101008/ap_on_bi_ge/us_foreclosure_mess

http://www.familymaritallaw.com/CM/Bankruptcy/Foreclosure-What-Are-YourRights.asp

Friday, July 9, 2010

MySolutionSpot.com - Business Law | Easy way to reform bankruptcy and stimulate the economy

Bankruptcy and foreclosure is at an all time high. You are not stigmatized if you go through bankruptcy. Bankruptcy does help to stimulate the economy as funds that were used to pay medical bills, credit card, and other unsecured debt, can now be spent on living expenses and necessities. Furthermore, discharging unsecured debt can enable you to pay your mortgage, reducing the number of foreclosures and helping the housing market. It's a circle.

MySolutionSpot.com - Business Law Easy way to reform bankruptcy and stimulate the economy

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