Monday, August 15, 2011

Help In Preventing Foreclosure

I wrote the post that follows almost two years ago, soon after I “hung a shingle” as a solo mediator.   In some parts of the country, mediation has been used very successfully to help homeowners and lenders negotiate terms that help avoid foreclosure.  I thought of foreclosure mediation as an obvious example of a potential win-win for both homeowners and the lender:  the homeowner gets to stay in the home, and the lender doesn’t have to spend $20,000 repossessing a house and then re-selling a distressed home in a buyer’s market.  Unfortunately, not everyone else saw it that way.  Groups representing homeowners already seem to see mediation as an incursion into their turf.  Why would a homeowner need a mediator, when they have a representative?  Lenders are being represented by law firms that are getting paid by the hour or by the case.  The law firms have nothing to gain from mediation.  Indeed, it makes it more complicated for them because there’s an added issue.  Many home loans were packaged and resold, and there may be 10 or more “stakeholders” on the side of the lender.  It’s not that attorneys for lenders are evil.  Rather, mediation creates a huge logistical challenge for the attorney representing the lender to get all their constituents to the negotiating table.  Because of this latter challenge, in fact, the success of foreclosure programs throughout the USA depends largely on the “clout” built into the foreclosure process.  If lenders are not required to participate in mediation, with strong enforcement of that requirement through fines for example, mediation is not likely to be successful. 


Well, that’s a long explanation, but the long and short of it is that I do not do foreclosure mediation.   There is no requirement of mediation prior to foreclosure, and lenders will not voluntarily mediate, and agencies representing homeowners see no value in mediation.  For these reasons, there is no demand for my services as a mediator in foreclosure actions.  Moreover, it takes special training that I do not have.  What I will offer, however, this article, which has links to resources for homeowners who are behind on payments and facing the possibility of foreclosure.


Here, then, is the reprint of an article I originally wrote on my blog in January of 2010: 



Are you unable to make the payments on your home loan?  Are you confused about what to do?  Are emotions clouding your judgment and making it difficult for you to talk about it to your mortgage company?  If so, you are not alone.  Nationwide, about one in six families is behind on their mortgage.

Facing potential loss of  your home may also be a very emotional experience.  It may, simply, be difficult to face this issue.  However, it's important not to ignore the problem, because it will not go away.  If foreclosure proceedings are brought against you, the wheels have been set in motion to evict you from your home.  You must develop a "Plan B"!

What is a reasonable Plan B for a person who cannot make their mortgage payments? There are some steps you should take immediately.  First, assess realistically whether it will ever be possible for you to meet the obligation, under any circumstances.  A credit counseling agency may be able to assist you with this assessment. (Click HERE for link to HUD approved programs in  your state.  If you are in South Carolina, the link is HERE.)

There are federal programs for distressed homeowners (see links, HERE).  While helpful for some, these are less useful for others.

There are also some facts which may be important to your lender:  Can you show that you would be able to make payments if (1) the debt were restructured, (2) if the interest rate were lower, (3) if penalties were forgiven, (4) if any missed payments were tacked onto the end of the loan or spaced out over a period of time?  Also, can you prove to the bank that you will have ability to meet the restructured terms?  Can you produce income statements and a budget that shows you could do it?  There are many other options, as well, which are more detailed and which are beyond the scope of this article.

The worst thing you can do is to ignore this problem!  Your first step is to call either your lender or a credit counseling agency who can speak with your lender on your behalf.  Put your best foot forward, and give it a shot.

A lawyer recently told me, "By the time these cases come to mediation, the homeowner is nine or ten months in arrears, and there is just too much money owed.  The homeowner can't come up with the amount of money the bank needs to stop foreclosure."  Do not, do NOT wait nine months to talk to the bank!  Do not wait two months.  If possible, work things out with the bank so that you put your finger in the dike before you are even late on one payment.  Taking preventive measures may save more than your house, it may save your credit report as well.

It may be that talking with the bank seems too hard for you to do on your own.  Perhaps it is very emotional, or perhaps confusing.  Or perhaps the mortgagee doesn't seem willing to talk or talks break down.  If so, then you may wish to engage an attorney to assist you.

In South Carolina, a good resource to find an attorney who represents parties in foreclosure is through the S.C. Bar Lawyer Referral Service (click HERE).  If you don't have funds to pay for an attorney, you may also try South Carolina Legal Services.  (To qualify for help from SCLS, your income cannot be greater than 125% of the federal poverty level.)    Additional counseling agencies for South Carolina are also listed HERE.

*** [here the original article discussed mediation in foreclosure cases]

The most important thing is this:  You must not just sit there and wait for your house to be foreclosed.  Mediation is successful in somewhere between 1/5 (New Jersey) and 3/4 (Philadelphia, Connecticut) of cases.  Perhaps this seems like a discouraging statistic.  Yet, it's better than nothing.   Doing nothing will result closer to a 100% probability of your being evicted from your home.  Moreover, even if you cannot meet the obligation and must give the house back to the bank, there is a possibility that you may qualify for additional avenues that may help save your credit or cushion the financial blow of having to move.  (See resources HERE.)  These options are called a "graceful exit," and may be better for both parties than the alternative of a sheriff's eviction and judicial sale.  (For example, see article, HERE)

Whether you consult with an attorney, with a mediator, or with both, don't wait until you are many months in arrears to do so.  Waiting just makes the problems -- and the size of the missed payments -- all the bigger.  Talking may help prevent foreclosure.  Mediation helps the talking.  If you need help, call someone today.

[caption id="attachment_861" align="alignright" width="300" caption="Generally speaking, your proposal to prevent foreclosure must show some realistic way you can repay the debt if it is restructured"][/caption]

Important:  This article is for educational use and represents my opinion only.  Please understand that this blog is not intended as legal advice for your particular case. Nothing about this blog makes me your lawyer. Nor can I answer your particular legal problems. If you have a legal problem, you need to hire an attorney.

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  1. The best bet is to see if you can get a modification before you get into foreclosure. Before you are 60 days late. Before the government ends Makign Homes Affordable, or refinance before you ever get late with historic lows.

  2. Nik, I like that suggestion very much. Any particular concrete steps you recommend? Also, do you recommend that people first talk with their lender on their own, or do you recommend they go through one of the federally designated loan counseling agencies (e.g. the HUD link in the main blog post)?

  3. Good foreclosure advice to help prevent it. I think the best way is to have a 6 month cash reserve in case your income comes to a halt.


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