WORD: Note

And the WORD for Today is:

Note—refers to a piece of paper which both acknowledges a debt and includes a promise to repay. A promissory note. A note is a written promise to pay a specified sum of money to a designated person or upon their instructions to the holder of the note, at a fixed time or upon demand.

A unilateral agreement which includes an express and absolute promise from the signer of the document to pay the person named a defined sum of money at a specified time or on demand. The holder of a note may assign their right to receive payment to another party, sell or otherwise transfer the note to another party without changing the obligations of the party who gave and signed the note. A note usually includes provisions for the payment of interest. For real estate purposes the note is secured by a mortgage or deed of trust.

“Note”- [in reference to the mortgage document] means the promissory note which is signed and dated by the Borrower. The “note” details the amount owed to the lender and includes the Borrower promise to make periodic payments.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

FYI: Demand Your Note

Demand Your Note

An option for interrupting the foreclosure process which is gaining widespread attention and use across the country is called “demanding the note”. Demand the note means quite simply that you, the borrower, demand that your lender provide you with the note you signed agreeing to the loan.

You have the right to make such a demand. In fact, many courts across the country (especially where judicial foreclosure is required) REQUIRE that the party who initiates the foreclosure provide a copy of the note at the time of the original filing in order to establish that it is a legitimate debt. Unfortunately, many consumers are not aware that demanding to be provided with a copy of the note which establishes that the person demanding repayment has the legal right to do so is both a reasonable request and within the scope of their legal rights.

Cough it up…OR Compromise

Let’s say, just for the sake of discussion, that your lender or servicer could not find the note. Perhaps because your loan has been bundled with hundreds of thousands of other loans in a mortgage-backed security or perhaps because they do not really own it. Perhaps they are not the real party of interest. In that case, their ability to collect on the default is problematic since they can’t prove you owe them anything.

There are numerous lawsuits across the country where consumers are demanding that their loan be rescinded because the note cannot be produced. That option is certainly one you need to consider. Whether rescission is your goal or you just want a reasonable, affordable workout, you are in a much better position to negotiate IF the lender cannot provide documentation of the ‘supposed’ debt. Let the lender either cough it up...OR...COMPROMISE.

Who’s Gonna Make Em?

Well now, that is an interesting question. Look up information on the Qualified Written Request which clearly states that the consumer has the right to request/demand ANYTHING related to the servicing of their loan by using a qualified written request. It is FEDERAL LAW which establishes the borrower’s right to submit such a request to the lender and the guidelines are very clear that whatever is requested must be provided. We will not go into details in this blog because there are several other places on this site and numerous others (National Consumer Law Center, Center for Responsible Lending among them) which will give you clarity on exactly what a QWR is and what the law has to say about it. E-mail Heather for recommended BEST PRACTICES for using this powerful document (homeownershipmatters@gmail.com).

With adequate research and time you can prepare this request by yourself but without taking a class on how to do so you might not get the best result possible. HOM offers classes as well as webinars on the subject; either would be immensely invaluable to you if you need to submit a request.

Do I need an attorney?

If you are wondering whether you should use an attorney, I strongly recommend a good attorney for this project. It would be a wise investment of money to help you with preparing for the biggest fight you are ever likely to get in.

Call your local bar association for recommendations or try to get references from your local REALTOR or title company.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Q&A: Short Sale Dickering

Q: The phone call was from an acquaintance, who had her friend on the line to discuss what to do about a proposed short sale which was stalled. The REALTOR seemed unsure what to do and both women felt he was looking out for the bank’s interest. Her problem: the lender wanted her to sign a promissory note for the deficiency—$25,000 on a $120, 000 loan in order for them to approve the short sale and let her go to closing. They agreed, after some haggling, to accept $6,000. She was frustrated because she felt they should just approve the short sale; further, if they didn’t she was considering just letting them foreclose. She had already moved out of the house and quite frankly, just wanted this to be over with. The question: What is a short sale suppose to do anyway? I thought it was to wipe out what I owed and the bank wrote that off as a loss.

A: There is NOT a simple answer to the issues raised in the above phone call. I will address what a short sale is (and isn’t) and then address a couple of other issues from the query above. First, short sale means that the lender permits a defaulted borrower (under certain circumstances) to close on the sale of the mortgaged property for less than the full amount allowed. There is a broad misconception that a short sale will be without conditions. Nothing could be further from the truth. The lender has the right, under the terms of the mortgage note (or the deed of trust), to pursue the consumer for the deficiency when less than the full amount due is received from a new buyer. The lender has several options to cover the deficiency: a. submit a claim to the insurer (when applicable, subject to certain restrictions) go for a deficiency judgment against the borrower (can be used to get a wage assignment) ask the borrower to sign an unsecured note for all or a portion of the shortage some other alternative I have not heard of yet

If the borrower does not agree to the ‘conditions’ for the approval then the lender has the sole right to reject the proposed offer and move forward with foreclosure.

Foreclosure is an option the borrower should try to avoid in almost all situations. Pretty much the only time foreclosure has limited power to hurt you is: if you are much older (say 70) never plan to buy a house again, you have NO ASSETS (no savings, no retirement, nothing) and you are judgment proof. Otherwise, you need to work something out. Try to negotiate a lower amount on the promissory note ($6,000 is an excellent compromise). She should take it, run get it signed and notarized and thank the Lord for helping her avoid the full impact of the deficiency. It is important that the document state that the payment of the note “satisfies the indebtedness in full” and is signed by someone of authority at the lender’s shop.

The ‘friend’ from this phone call has several other extenuating circumstances which made the decision to advise her to negotiate and agree to the lowered amount very easy. She is younger (early 50’s), wishes to purchase again, is currently employed, already vacated the house (abandonment, which was discussed on Jan 23-24—here and here) has a significant retirement account and for all those reasons she is not in a strong position to refuse to cooperate with a lender whom she owes $120,00 with an offer of $90,000 on the table. She agreed to repay the full amount, with interest. Circumstances such as her escalating variable rate do not alter the terms of the initial contract. Please understand that I empathize with the situation but must still give you the best answer I can, based on your overall situation. Look to save yourself to fight another day by protecting your financial future with each choice that you make.

Copyright © 2009, Home Ownership Matters, LLC. All rights Reserved. "Answer Book in a Foreclosure Climate" by Mildred Wilkins, available in 2009 from www.DovePublishingHouse.com.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

WORD: Notice of Default

And the WORD for Today is...

Notice of Default – is a formal, written notice to a borrower that a default has occurred and that the lender may move forward with foreclosure proceedings.

A notice of default is filed to show that the borrower under a mortgage or deed of trust is behind on their scheduled payments (in default). Whether or not the borrower has received notice of default could be important in their efforts to get the lender’s cooperation with a loss mitigation workout work-out. In judicial foreclosure states, notice of default is a required step in the foreclosure process.

“Notice of Default” – [as used in the PROMISSORY NOTE] basically states that if you are in default the NOTE Holder may opt to send you a notice which states you are in default and that they may demand payment of the full amount due under the NOTE (accelerate) if the past due amount is not received by a certain date. If the NOTE HOLDER chooses to accelerate then payment of the entire principal balance and all interest plus other allowable expenses will become due.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

WORD: Sale of Note

And the WORD for Today is:

Sale of Note – refers to the paragraph in a mortgage which indicates that the note or a partial interest in the note (together with the Security Instrument) can be sold one or more times without prior notice to the borrower. Such a sale is likely to result in a change to the loan servicer who collects payments and performs other mortgage servicing responsibilities. The lender is required to provide notice of a change in loan services.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

WORD: Default

The WORD for Today is:

Default—When a person does not have the ability to make their mortgage payment as scheduled. A default begins on the date when the mortgage payment should have been made. This date should not be confused with the grace period. Once the consumer has gone into default, the lender has the option of accelerating payments, demanding payment in full and/or other action leading to foreclosure. If the lender fails to declare the existence of default, in keeping with the terms of the note and mortgage, they may be deprived of the right to accelerate repayment of the debt.

Default means failing to meet the requirements of an agreement or failing to perform a legal duty. Most often the term is used to indicate that someone has failed to make the required payments on their mortgage. It is important to note that you may also be “in default” due to failure to maintain insurance as required, or failure to keep the collateral in good condition.

“Default”—[as used in the PROMISSORY NOTE] means that a regularly scheduled payment has not been made, in full, on the date it was due to be paid. Many folks miss both the simplicity and the essence of this very short paragraph. Notwithstanding the allowance for a grace period, you are legally in default on a mortgage when the scheduled payment is not in the lender’s possession, in full, on the 1st of the month. While allowances are made for late payments and a grace period exists, there would be no need for “grace’ if you were not already in default.

Default Action Plan—Should include the following, as a minimum. As a consumer you should:

1. Identify the cause of the default. Is the cause temporary or permanent? Can you provide documentation that the reason for the missed payments was either a reduction in your income or an increase in your expenses. In either case, most often you will be required to demonstrate a circumstance which was beyond your control. Voluntarily leaving a job or reducing your hours are considered under your control. Moving from your home to another city, even for a better job opportunity is considered under your control.

2. Design a plan for catching up missed payments. The plan should be feasible based on your current income or realistic expectations of future income (a definite job commitment or date of return from layoff or disability) and include consideration for other expenses which must be carried on at the same time you are resuming payments. Seldom is a 1½ payment realistic and such an arrangement is strictly prohibited on FHA backed loans under Mortgagee Letter 00-05 (See HUD's Website — You will need to click on the letter "00-5" in order to download it).

3. Get in touch with the lender’s loss mitigation shop (also called the work-out department). Your best hope for a good resolution is to speak to the head of this department. Customer service does not typically offer loss mitigation options or work outs that extend past a couple of months of default.

4. Explain the problem. You must be prepared to explain your situation in detail and you should expect to be asked to provide documentation of both the cause of the inability to make payments as well as the detailed information about your current finances as a way to gauge what options might be considered.

5. You should plan to be part of the solution by not only asking for help, but by understanding the different options which are possible, when each might work and under what circumstances. You should see February 24th's entry, where Hardship, Hardship Letters, and Hardship Packages were discussed (here).

6. You should always return phone calls.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Q&A: Real Party of Interest

Q. I had been making payments for more than a year to Company X and fell behind on my mortgage payments by a couple of months. Today I got what looks like a foreclosure notice from a company I have never heard of before. The amount they say I owe is wrong and they are claiming that I have not made payments for the past 8 months. I don’t want to lose my home over some mistake but I can’t afford an attorney. Is there some way that I can figure out how to keep my home on my own?

A. There is a strong possibility that you may be able to block the foreclosure long enough to figure out what is going on. Your first step is to file an “answer” (see here) to all the correct parties.

Let’s cover some basics about the “real party of interest.” The real party of interest is the only entity or individual who can be the plaintiff in a lawsuit. Concerning your mortgage or deed of trust, the real party must either have purchased or otherwise have acquired legal ownership of the collateral in order to sue you as a plaintiff for non-payment of the debt. There is also a provision for a servicer who has been granted servicing rights “with assigns” to be the named plaintiff as well, since such a arrangement grants all rights to the holder as though they were the rightful owner. “Servicing rights only” does NOT grant one the power to sue for payment as a plaintiff in a foreclosure action.

In all cases, the named plaintiff should be able to provide documentation that they have the legal right to pursue you for payment. Send a qualified written request and demand that they provide such documentation. The documentation you need is a copy of the transfer of your note/deed of trust. Or proof that a transfer of servicing rights “with assigns” was made prior to the filing of the foreclosure. With so many lenders making transfers of files all the time, they have gotten really sloppy about these little details. Many times servicers are identified as plaintiffs in a foreclosure action when they have no legal right to do so. Challenge the validity of the action, not the truthfulness of your default. Additionally, dispute the amount declared to be in default and request documentation of all funds paid by you on the account.

Essentially I am saying that many foreclosures are processed and completed, folks lose their homes when the lawsuit was filed by someone who was not, in fact, the “real party of interest.” A consumer borrowed money from Bank X, who transferred the loan to Bank Y, who was then bought by Bank Z. Bank Z owned Bank Y, but your note is still held by Bank Y. Bank Z cannot legally be the plaintiff until there is a transfer of your SPECIFIC note to Bank Z.

It’s a simple concept once you think about it. Use an attorney if you don’t feel competent doing it yourself; but I think you could handle this yourself once you fully understand.

Copyright © 2009, Home Ownership Matters, LLC. All rights Reserved. "Answer Book in a Foreclosure Climate" by Mildred Wilkins, available in 2009 from www.DovePublishingHouse.com.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

WORD: Maturity

And the WORD for Today Is...

Maturity – the termination period of a mortgage note. For example, a 15 year mortgage will become mature in 15 years.

In sales law, the date a note becomes due is said to be its maturity date.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

WORD: Assumption of Mortgage

And the WORD for Today Is...

Assumption of Mortgage – refers to an agreement by a new buyer to take over, or assume, an existing note, which is secured by a mortgage or deed of trust. It is also called simply ‘an assumption’. The transaction usually requires lender approval of the new borrower in order to release the seller from further liability.

Assumption of mortgage means a new buyer agrees to take over or assume the financial liability under an existing note which is secured by a mortgage or deed of trust. Most notes in force today do not have a provision for an assumption. If the lender does agree to allow an assumption they will almost always insist on the submission and processing of full credit application on the new borrower. The assumption cannot be completed without the lender’s approval. The granting of the approval to assume does NOT release the original borrower from their financial obligation unless the lender also signs a release of liability. A consultation with your attorney is advisable.

It is crucial that a borrower who decides to consider an assumption be aware of the assumption clause which basically states that while they allowed another borrower to take over payments on the mortgage, they have not released the original mortgage holder from their obligation. A consultation with an attorney is strongly advised prior to the completion of an assumption, even with lender approval.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Q&A: Landlord in Foreclosure

Q: I have been renting a wonderful house for the past 8 months and really like the neighborhood. My landlord was really nice when I first looked at the place, but I have not heard from him for the past two months. No reason I should, since everything was working okay. Today I came home to find a sheriff’s sale notice stuck to the front door. The landlord’s number is disconnected and I don’t know what to do. Who should I call? What can I do? What did he do with my rent money?

A: First, slow down and take a deep breath. It probably won’t make you feel any better to know that thousands of folks across the country are facing the same dilemma: what to do when your landlord fails to pay the mortgage even though you are paying rent on a regular basis. It has become a common problem.

It is important that you not panic. Let’s discuss the things you can do which are likely to be of help. It is also a good plan to avoid doing stupid stuff which might make you feel better for a minute but will not improve your situation. (Example: tearing something up.)

Before you do anything else: decide what you want. Given this new turn of events, re-consider your options carefully before you decide what steps you will take.

Specifically:

a. do you want to stay through the term of your lease?
b. would you be just as happy to move on to some other option now that you have been given the chance to “break your lease”?
c. do you just want the time to carefully pack and move?

Make a decision, then move to action.

If the sheriff’s notice does not say when the sale will take place, then get that information from the local sheriff’s department so you have an idea how much time you have to take whatever action you have chosen.

Next, check the landlord tenant laws in your state to see what recourse you have, under the law, if the landlord goes into foreclosure. These laws should be readily available, perhaps on your Attorney General’s site.

Then check the foreclosure laws in your state (use google “ _______ state foreclosure laws”). You are looking specifically for notifications required of tenant occupied properties when a foreclosure is pending. Some states require notice be provided to the “unnamed tenants” of a property as part of the foreclosure process in order to avoid exactly your situation. This will be particularly important if you want to stay during the remainder of the leased term.

You need to get some information about the property in order to proceed further. You can start with the information on the sheriff’s notice which will give you some details to get the other information you must have. You will likely need to talk to the county clerk’s office, perhaps the tax assessor and as well as do some on-line research. You will need:

a. the correct names on the title
b. lender or holder of note
c. insurer of the note (if it is Fannie Mae or Freddie Mac you are lucky)
d. attorney who is representing the lender

Notify the sheriff’s department, the attorney, the lender (if you can find a number) and the insurer that you are residing in the home, as a tenant. Be prepared to show that rental payments are current.

If the insurer is Fannie or Freddie, both have implemented programs which will allow tenants to continue to reside in the homes and rent directly from Fannie or Freddie during the time they are being marketed for sale to a new buyer. (Are you up for that?)

Pull yourself together and make a ‘new’ decision based on adjusted circumstances.

**I did not forget that you asked what he did with your rent money. Probably wine and loose women. Doesn’t matter, what is your next step?

Oh, by the way, don’t send off next month’s rent payment just yet.

Copyright © 2009, Home Ownership Matters, LLC. All Rights Reserved.
"Answer Book in a Foreclosure Climate" by Mildred Wilkins, available in 2009 from www.DovePublishingHouse.com.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

Q&A: Adjustable Rate Reset

Q. We re-financed our home 2 years ago so the payment would be more affordable. At the time we did not understand exactly what an adjustable rate mortgage meant. The broker told us the rate might go up later but that was not likely to happen since the rates were so low and that if they did we could always re-finance again so we would not have to worry about it. Our adjustable rate mortgage is scheduled to reset within the next few months. We feel sure the house is worth less than we owe so re-financing again is not likely to work for us. What happens at that time with the present mortgage holder?

A: Adjustable rate mortgages are set for certain periods of time and then the rate changes. Your rate will adjust based on the terms in the mortgage you signed at the inception of the loan.

Your present note holder or servicer is required to make the adjustments in strict adherence to the terms in your original documents. The frequency of the change as well as changes to the interest rate and caps should all adhere to the terms set forth in your note. You might pull out the original document and check to verify that they have, in fact, followed the guidelines there. If a mistake has been made you should bring it to the lender’s attention as soon as possible.

In the event the change in your interest rate will create a hardship in your ability to continue making scheduled payments, then consider the possibility of requesting a modification to the terms of the loan. There is a possibility that you might qualify for a reduction in the rate, or perhaps be able to have the loan converted to a fixed rate in order to keep from falling into default.

You should expect the lender to take a close look at your finances and have you to complete numerous forms and provide information on your finances to document your current situation and project your ability to maintain the payments with a new, adjusted rate. It is not a given that you will be able to get the rate changed, but it is certainly worth looking into.

Most lenders will at least consider a modification if you can demonstrate funds sufficient to make a reduced payment but cannot keep payments current at the higher interest rate. Check with the loss mitigation department of your financial institution if you are currently in default. Otherwise, you may talk to someone in customer service, but the reality is that seldom will you be offered any help unless you have already missed a mortgage payment.

I didn’t tell you to miss a payment; I said “seldom will they help you unless you have already missed a payment." Point of clarity: Loss mitigation is the correct department for someone who is already in default on their loan and customer service helps folks, or answers questions, when you are still current. The new stimulus package has a provision for banks to consider a modification “if default is likely”. We’ll have to wait and see whether banks actually do that.


Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

From the Desk of: Buying T-I-M-E

Never before has the expression “If I could just buy some time” meant so much to people. When you are facing foreclosure you need time to discover your options, analyze your situation and implement an action plan. Your most precious commodity is time…And it’s running out.

When your money is running out…

You don’t have time to wait for the trickle down effect of the stimulus package to make a difference in your personal situation. While the package will make a significant difference over the long haul for thousands of Americans, anyone who thinks it is going to quickly make a difference for EVERY American is kidding themselves. Facing reality is hard, but necessary. As a country, we have ignored hard truths with disastrous consequences for too long. Nothing will be gained by continuing to point fingers. However, we must immediately recognize that each of us has a role to play in correcting the serious housing problem we face as a country. (Even if your home is paid off, FREE and CLEAR). The housing market holds the key to stabilizing our country, so anything we can do to keep people in their homes is a step in the right direction.

First thing’s first...

DO NOT ABANDON YOUR HOME. Even when you are behind on your mortgage, no matter how far behind you are, DO NOT abandon your home until the entire legal process has been played out. You can stay in YOUR house until your right to possession has ended. Exactly when that time is will be determined by three (3) factors:

1. Type of foreclosure in your state: judicial or non-judicial
2. Whether you have a mortgage or a deed of trust
3. State statutes regarding sheriff or trustee sale and possession timeframes

Find out the answers to items 1, 2 and 3, and then abide by them. Make sure your lender abides by them as well. Things could improve while you are holding out. Hold on.

Things are changing radically and very quickly because of the magnitude of the housing problem. Your local courts could dramatically change the way they process pending foreclosures so that you have a chance to work things out with the lender. Stay in our home and fight for the chance to work things out. More banks are willing to work with borrowers today simply because they really can’t manage the huge backlog of homes which have already been lost to foreclosure. If you can present a viable plan, your chances of retaining home ownership are pretty good.

Second thing’s second…

I know you know that, but I needed to get your attention. Probably the second most valuable thing anyone will ever tell you to do to save your home from foreclosure is to

1. Demand the lender or servicer who is threatening to sue you for foreclosure produce the original note/deed of trust which says you owe them. In legal terms you are asking them to demonstrate that they are the “real party of interest.” In common language that means, prove I owe you. Prove you have the right to demand payments from me.
   
2. The most effective way to demand this documentation is with a “qualified written request”. You are entitled to request that and any other information you want which is related to servicing on your loan (any mortgage loan in the United States) under federal RESPA regulations. Details are taught in the workshop.

What Choices do I have????

Let’s consider the answer to that question. It is critical that you start with an honest inventory of your situation. How far behind are you? Do you have the resources to resume payments? If not now, when will you be able to do so? What do you want to do? What are you ABLE to do? Why should the bank consider your proposal? You’ll need to able to defend it as being reasonable, based on your current circumstances.

Space in this article will not allow me to go into detail but I will provide you with the options you can consider. Do further research on each of them, online, in the library, on websites such as HomeOwnershipMatters.com Or at the blog: HomeOwnershipMatters.blogspot.com.

1. Options to keep the house—special forbearance, loan modification or a partial claim. You need to learn what each of these means and how it works
2. Options to let the house go—short sale, assumption or deed-in-lieu. All of these options are better than foreclosure but you need to know exactly how they work to avoid creating yet another problem for yourself down the road.
3. Reverse mortgage could be considered, it could be your solution. Be sure to use a government backed reverse mortgage if you decide to use this option.
4. Receiving disability payments (if you have a claim pending) could make the difference. Hold on until you know what you will be receiving
5. Acquiring a roommate could change your finances—get started working on it (I mean a roommate who will PAY—not one who will add to your expenses)
6. Selling unnecessary items in order to cover the gap until you get a permanent solution. Ebay or Craigslist could bring in some immediate cash. (Stop crying—we are trying to save your home and Buy “T I M E”).
7. Some other solution which has not even occurred to me

“Answer” the summons

The summons is your official notification that the lender has moved to legal action. The court notifies you via the “summons”. Your response should be to the clerk of the courts, the lender/servicer and their attorney. It is critical that your answer be received within the legally stipulated timeframe in your state. It is strongly recommended that the answer be sent by certified mail, with a signature required. This is a task which you can handle on your own, with a little coaching.

Basically, an answer should acknowledge that you are aware of your situation and that you are working with the lender on a plan. Specify what that plan entails. If you are challenging whether or not the lender has the legal right to foreclose (due to failure to produce the original note or demonstrate that they are the “real party of interest”) this is your time to say so. The foreclosure is likely to be stalled based on the quality of a timely, well prepared “answer”.

Buying “T I M E” workshops offered…

Workshops to teach consumers what they can do to “save themselves” will be offered in cities across the country beginning in March. All workshops will be posted to the HOM calendar as soon as they are confirmed so look for one in your area soon. These workshops are 3 hours in length with an hour after for questions and answers. Attendees will leave with a comprehensive packet which details all the options outlined above as well as a sample “qualified written request” with complete instructions on how to use one most effectively. Each borrower who attends will also walk away with clarity on how to prepare an “answer” since this is also critical if legal action has begun.

Want to host a workshop in your town?

The commitment is simple and inexpensive. A workshop can be offered anywhere in the country if a host is willing to provide a suitable space and advertising to let the public know that the event will be held. There is no fee for the speaker (donations will be accepted) but expenses to the event must be covered. For a nominal expense you can offer a very valuable training which can save homes in your community. For details about what is required, please send an email to Heather at meade.heather@gmail.com.

Local initiative is needed

We all have high expectations of the new administration but our President has said repeatedly, and has demonstrated with his grassroots campaign, that the masses can make a difference, when they choose to become involved. If every person who reads this article would share it with the people in your personal database, you would help several people to avoid foreclosure.

If the leaders of organizations would share the articles and the link to the blog with your entire company, you might save not only their home but the home of some of their family members or friends. Driving people to the blog and website so that they can get practical, easy to understand information to help them with their personal choices could make a big difference. Anyone reading this who has the connections to have a workshop in your city or a program aired on Public Access or Government Access television or local radio show could reach thousands of folks with some concrete/self help which could make all the difference in your community. I am a teacher and a writer. I know the role I am to play. I ask each of you to find your role in helping our country get back on its feet. We must find some resolution to our housing problems.

“Working together, we can make a difference”

Copyright © 2009, Home Ownership Matters, LLC. All Rights Reserved.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

WORD: Agent

And the WORD for Today is:

Agent—any person who is authorized to act for or represent another (principal). Such authority may be expressed or implied. It is always recommended that such authority be in writing. In issues related to defaulted loans a housing counselor is working as an ‘agent’ for the consumer. An attorney or real estate person who is helping is also acting as an ‘agent’. It important to note that a lender is prohibited from sharing details of your mortgage situation with any one other than the mortgage holder without WRITTEN notice that such person is in fact, acting as your agent and has given WRITTEN, SIGNED authorization for the lender to discuss your personal finances.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Reinstate and Redemption: Worlds apart

FACT: The two words have dramatically different meanings. To reinstate a loan means that the consumer is behind on their mortgage payment but has arranged with the bank to catch up the past due amount. Even though the lender has accelerated the loan (demanded payment in full along with all applicable costs and fees) the lender reserves the right to allow a re-instatement if they so choose. Most often the lender will decide this is a reasonable option in order to avoid a foreclosure if the consumer’s situation has changed and it appears likely that payments will be made in the future in a timely fashion. The amount needed to reinstate usually includes all past due payments, interest and may include attorney fees. Once the borrower has reinstated the loan, they resume payments just as they had before the default.

On the other hand, redemption typically means that the borrower must pay the entire amount of the loan plus all costs including attorney fees in order to re-claim their home AFTER the foreclosure has been completed. A consumer’s right to redemption, including how long they have in order to exercise this right, is determined by state statutes. What fees the lender is able to collect is governed by the terms of the mortgage note or the deed of trust. Redemption timeframes vary from a very short period of time which expires at the time of the sheriff’s sale or may continue for a matter of months. The longest redemption period in the country (related to foreclosure due to failure to make timely mortgage payments), is 1 year, in the state of Alabama.

Watch for a section on State foreclosure laws which will include redemption timeframes which will be included on the Home Ownership Matters website by the end of April under the Foreclosure section. Share the knowledge with your friends.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

Fast Fact: Release of Liability

Release of Liability

FACT: This is a very important paragraph in your mortgage or deed of trust. Tricky, how the things you don’t pay much attention to can come back and bite you in the proverbial butt. This is one of them.

The reason we are discussing it here is because it comes into play if you decide to let someone assume the mortgage on your home. This is further complicated by the fact that the bank may agree to allow someone to assume the mortgage on your behalf; yet you are still legally obligated to pay the mortgage should THEY become unable to keep up payments.

How could that be? It’s called "release of liability.” Read the section in your note. It clearly says that unless the lender specifically grants a "release of liability" you are still on the hook for all payments until the loan is paid in full. My son said when he was 13, “you better ask somebody." Consider yourself warned: contact an attorney and have him to prepare a "release of liability" to be signed by the lender, PRIOR to agreeing to allow anyone to assume your mortgage. You’ve already agreed to this arrangement when you took out the loan; you need someone to get you “off the hook.”

**This also applies to rental car contracts. You are on the hook for the time and amount you promised no matter what side deal you cook up after you leave the dealership. (In fact, you are prohibited from legally making any side deals). Yes, I know it happens all the time. Consider yourself warned. I am trying to look out for you.

Copyright © 2009, Home Ownership Matters, LLC. All Rights Reserved.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Q&A: Miscommunication—Papers Served

Q. I have not made my mortgage payments for the past six months but the lender had said they would try to do a modification and make the payments lower so I could afford them since I am back at work. Today I received a notice with the word “summons” on it indicating that the lender has filed for foreclosure. It says I have 20 days to respond. I have no idea what to do. Who do I respond to? What do I tell them? Do I need an attorney to do this? Please give me some answers—FAST.

A. First, calm down and let’s take this one step at a time. You do not need an attorney to handle this. (Yes, an attorney can do it but one is NOT necessary.) The “summons” is a notification from the court that the lender has filed legal action against you because you are defaulted on the loan. How much time you have to respond will be determined by your local state foreclosure laws and the terms of your mortgage note or deed of trust. Take a few minutes to check your state statues to be sure you respond within required timeframe or you lose any rights you would have had.

Second, you need to provide an “answer”. An answer will notify all interested parties that you do not plan to lose your home to foreclosure.

An answer will give you time—a valuable commodity--

• time to verify that the plaintiff is the ‘real party of interest’ (if not, this is GREAT news for you)
• time to get your disability claim finalized and start to receive payments
• time to work out a modification, short sale or other option
• time to complete a reverse mortgage and get current
• time to get back to work and resume payments

It is important that you provide an answer to all interested parties: the party who sent the summons/notice (usually the clerk of the courts), the attorney representing the plaintiff as well as the lender themselves. I suggest all copies be sent with return receipt requested and that they require a signature. It is crucial that you keep this information so you can prove (if need be) that you provided the answer within the legal time frame.

An “answer” can be crucial to buying you the time necessary to save your home. However, there is little point in using this option if you have already determined that you simply cannot afford the home.

Do some research on-line or go for it. I am confident you can do it.

Copyright © 2009, Home Ownership Matters, LLC. All rights Reserved. "Answer Book in a Foreclosure Climate" by Mildred Wilkins, available in 2009 from www.DovePublishingHouse.com.

(Please e-mail Heather at homeownershipmatters@gmail.com with any questions, comments, or concerns you might have. We appreciate all feedback, comments, and especially your questions. Don't be shy!)

WORD: Abandon

The WORD for Today is:

Abandon–to voluntarily leave your home, thereby relinquishing your rights to the property (through failure to use the property). It is a serious misstep for a consumer who is in default to abandon. Lenders are usually less willing to engage in loss mitigation if you do not reside in the home. For government backed loans, your RIGHT TO LOSS MITGATION is tied to your continued residence in the house. The lender has the legal right to accelerate foreclosure by virtue of your abandonment, which is in violation of the mortgage note. DON’T DO IT. STAY AND WORK WITH LOSS MITIGATION.

© Copyright 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

Q&A: Offer Doesn't Cover Loan

Q: A common question over the past year has been: “What happens if I am trying to sell my house and I am not able to get a new buyer who will pay as much as my outstanding loan?” “What are my options then?”

A: The questions you raise are faced by many borrowers across the country and the answers to your questions vary somewhat depending on several factors:

a. Your circumstances, including your reason for default

b. Your guarantor, meaning who ultimately is holding the loan and stands to lose the amount NOT being offered by the new buyer

c. Your resources, ie. Money in savings, retirement account, etc.

d. Current restrictions or requirements from external forces such as the TREASURY

Ordinarily, to sell your home, you need to get an offer which will cover all the costs associated with the transfer AND cover the full amount due to the lender to pay off your mortgage in full. In today’s climate frequently the value of the home has fallen and that is not possible, creating what is now commonly called a ‘short sale’. The lender may require one of more of the following options:

1. You sign an unsecured note for the difference (or an amount you negotiate which is less than the difference but will satisfy the guarantor).

2. You bring a check to closing for the difference between the offer and the amount owed.

3. Someone other than you (the real estate agent, the purchaser) pay the difference or a negotiated, compromised amount in order to allow the closing to move forward

HOW do you handle a potential sale when you are not likely to get all that you owe from a new buyer?

Select a REALTOR® who is experienced in handling short sales in your area and work closely with them in providing everything your lender/servicer is requesting in order to get them to accept an amount which is consistent with the current value of the home.

IF you cannot negotiate a compromise for less than the full amount owed: THEN foreclosure is frequently the outcome.

Best of luck with your attempt to move your home in today’s market. With market savvy and determination, it can be done!

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

FAST FACTS: Avoid Modification Relapse

It is critical that you follow up to be sure that the new “modified” mortgage which you have been successful in negotiating is duly recorded. A modified mortgage is intended to be a permanent change in the terms of your loan, but it is important that you not only negotiate for terms which are sustainable, but that you also take care that the agreement includes a provision for the lender to record the new mortgage in a timely fashion. Failure to do so could lead to a disastrous situation in the future when your loan is transferred to a new servicer. Your new servicer could refuse to acknowledge and/or abide by the terms of the “modification” and instead treat it as a temporary agreement between you and the servicer who completed the paperwork. Essentially they can say, "we must abide by the terms of the original note." There has been no subsequent mortgage recorded.

Avoid mortgage modification relapse by either:

1. requiring the lender to record the modification within a short timeframe after the agreement;
2. utilizing the services of an attorney or other professional who accepts responsibility for guaranteeing that the modified loan will be recorded
   

In either case, you must check YOURSELF to be sure that the mortgage has been reported to your local recorder’s office in a timely fashion (you could get transferred to another servicer any minute).

Don’t allow your lender to take advantage of you, AGAIN, by agreeing to a modification and then transferring you to another servicer who is legally obligated to follow the terms of the original instead of your modified loan.

Forewarned is forarmed—but only if you do what you need to do.
We’re trying to look out for you--help us out, DO YOUR PART.

Copyright © 2009, Home Ownership Matters, LLC. All Rights Reserved.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)

WORD: Loan Package

And the WORD for Today is:

Loan Package—refers to the file of all the items necessary for the lender to decide to grant or not grant the loan. These items would include the information on prospective borrower such as loan application, credit report, financial statements, and supporting documentation, employment verification and any other personal information to verify the credit worthiness of the applicant. In addition, the file would also include information related to the acceptability of the proposed property such as an appraisal to substantiate value and a survey. There is usually a charge for “packaging” the loan.

Loan package also commonly refers to the bundle of papers sent from the lender to the title company in order to finalize a real estate transaction. The /loan package/ usually contains all the necessary paperwork to “close the loan.” The mortgage or deed of trust, note and all required disclosures, from anybody to anybody, would be included. A loan closing package might include as many as 60-80 pages of material.

Copyright © 2008, Home Ownership Matters, LLC. All Rights Reserved.

You can find more helpful definitions of WORDS like these in Your Real Estate Advisor which can be purchased at www.DovePublishingHouse.com.

(Please E-mail Heather at homeownershipmatters@gmail.com with any questions, comments or concerns you might have! We appreciate all comments and feedback, so please don't be shy.)