Mortgage second » Creditor

More Than One Mortgage Company Filing Foreclosure at Once

admin — Wed, 24 Feb 2010 07:06:11 +0000

“When it rains, it pours.” Homeowners with more than one mortgage who have fallen behind on all of them know that old cliche possibly more than anyone else. When a financial hardship comes up, and there is not enough income to make all of the mortgage payments, more than one of the lenders may initiate foreclosure proceedings in the county court at roughly the same time. In fact, if one starts the process of filing paperwork in the court system, all of the others may also file as soon as they are aware of the first foreclosure, and that the homeowners are behind on all of their bills. This situation can be somewhat confusing for homeowners, though, if the second mortgage files first, followed by the first; or the HELOC holder filing first, followed by the first and then the second.

But, to put it in as simple terms as possible, filing foreclosure is simply one creditor, who has had the house pledged as collateral for a mortgage loan, asking the appropriate local court to sell the house, in order for the mortgage company to regain any losses experienced on the nonpayment of the loan. The fact that more than one lender is claiming losses at once, when all of the lenders are behind on payments, should not be surprising at all.

It will be the court itself that orders the sheriff sale of the property, as long as the plaintiff in the case, the bank, can prove that the loan is in default and that the property is collateral. This, of course, is usually quite easy to prove, and, far too often, homeowners do not even make an appearance at the foreclosure hearing to make an answer or request more solutions outside of the legal foreclosure process. However, in any case, it does not matter if one mortgage company or lienholder files foreclosure paperwork first or second, as the proceeds from the eventual foreclosure auction will be paid out the same way. The order of payments is determined far in advance, even before the house is sold to the foreclosure victims to begin with.

At the sheriff sale, any back property taxes will be paid off first. Then, the first recorded mortgage will be paid off. After that, any other parties will be paid off in order of when their lien was filed with the county recorder. The only exception would be for a mechanics lien, which may not be recorded at the time of the foreclosure or auction, but the creditor may be able to collect a portion of the proceeds before an earlier-recorded lienholder. This is a somewhat more uncommon event, though, and most homeowners in foreclosure will not experience it. It is also a broader topic than can be discussed fully in this post.

It is the order in which the parties had filed their liens, for the most part, that will determine who is paid off with the proceeds from the auction first, second, third, and so on. Not surprisingly, county property taxes are always paid off first, since the government needs to make sure it gets its share before anyone else. Also, this prevents the new purchaser from having to pay off the back taxes or worry about a tax foreclosure if the transfer does not take place quickly. County property taxes are almost always paid to a current status or otherwise settled in any sale of real estate, whether through foreclosure or otherwise.

Thus, the payment of proceeds from a sheriff sale is not determined by which lienholder files for foreclosure first; rather it is decided solely by the recorded date of the lien. Any lien is counted in the determination of order, whether it is a first mortgage, second mortgage, judgment lien, income tax lien, or other assessment.

This is also a major reason that second mortgage companies are often far more willing to work with homeowners in setting up a repayment plan or taking less money on a short sale they know that, in a foreclosure auction, they will probably not be paid any of the proceeds after the taxes and first mortgage are paid. Other liens beyond the second mortgage often have even less of a chance of getting any real benefit from forcing a sale of a property through foreclosure.

However, any lienholder who has had the property pledged as collateral for a loan can initiate foreclosure proceedings. Even second mortgage companies will start the process if the homeowners are not in contact with the bank and have not expressed an interest in getting the monthly payments back on track. They may hesitate to file for foreclosure, but no response by the owners will eventually force them to take action in the courts. Homeowners will most likely be facing only one foreclosure action against them by a first mortgage company, but this does not preclude the possibility of facing more than one foreclosure lawsuit at a time.

By: Nick Adama

Removing Second Mortgages Though Lien Stripping

admin — Mon, 18 Jan 2010 08:59:39 +0000

In the present economic times many individuals are living with financial decisions causing them to hold assets, such as houses, automobiles and boats, whose values have plummeted. Individuals are living in properties whose values have dropped far below the mortgages or driving cars, which are valued at a third of the loans. Those individuals with financial difficulties are looking for assistance through the bankruptcy courts in an attempt to get out from underneath all of the debts and liens acquired, which now vastly exceed their current assets.

There are two types of liens, which can be attached to an individual’s property or assets. The first is a voluntary lien, which is basically a situation where you have agreed to use the asset as collateral for a debt, i.e. mortgages and auto loans. A non-voluntary lien is one that a creditor imposes on you and that gives them the right to force you to sell the asset so that they can be paid, for example: judgments against you or tax liens. These liens are either secured or unsecured as to the asset they are attached to.

The most common issue for an individual nowadays is the situation where a homeowner who has a first and second mortgage on a primary residence is facing bankruptcy and wondering if they have the ability to save the family home. As real estate markets fall and the fair market values of the homes fall, homeowners are left with mortgages that far exceed the current fair market value of their homes. There is a process which could be of help to many in this situation and it is called “lien stripping”.

“Lien stripping” refers to the process of reducing a secured claim to the value of the underlying collateral. It uses the combined effect of 11 U.S.C.A. § 506(a) and 11 U.S.C.A. § 506(d) to bifurcate the lien into secured and unsecured. The secured lien is allowed in the amount up to the fair market value of the property at the time of the stripping. The balance of the lien, which exceeds the fair market value of the property, is now deemed unsecured.

Liens can be stripped off of the debtor’s assets in Chapter 11 or Chapter 13 when there is not enough equity in the assets. Section 506(a) and 506(d) of the Bankruptcy Code acknowledges that a lien is only a secured claim to the extent there is value in the asset to which it attaches. To the extent that the claim exceeds the value of the collateral, that portion of the lien is now unsecured. The most common application of lien stripping is the reduction of car loan liens to the present value of the vehicle however it is currently used more often with home mortgages in bankruptcy situations. Lien stripping with car loans has been limited to vehicles purchased over 910 days.

The Bankruptcy Code does permit a bankruptcy plan to “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence”. Section 1322 (b)(2). This section provides protection to the holder of a claim secured only by a lien on the debtor’s principal residence by prohibiting any modification of the terms, however the issue arose as to if this section precluded “lien stripping” of undersecured residential mortgages in the face of Bankruptcy Code section 506 which appears to permit bifurcation of undersecured mortgages and voiding of unsecured portions of the mortgage lien. At least two bankruptcy court judges sitting in Massachusetts have permitted such bifurcations.

In any event, there is an exception as to the lien on a principal residence lien and that is if there is a second or third lien on the same property. In this instance those liens, lien stripping is available to render them totally unsecured if the first mortgage balance equals or exceeds the value of the personal residence. The exception is only if there are two distinct mortgages on the property, not a refinancing situation. It should also be noted that the limitation of lien stripping of first mortgages only apply to personal residences, it will be allowed for a mortgage on a building used for business or renting.

As always, all situations relative to a strategy for bankruptcy and lien stripping should be discussed in detail with a bankruptcy attorney to understand all your avenues open to you.

By: Michael A. Goldstein

Second Mortgage Loans After Bankruptcy

admin — Tue, 22 Dec 2009 18:34:47 +0000

The purpose of bankruptcy is to give the debtor a new start in his life by repaying creditors in a systematic way. Thus, bankruptcy does not prevent anybody from taking a loan. Today, the lending rules are becoming much more relaxed, and you should not worry that you have lost your dream to buy a home or acquire a property even after you have gone bankrupt.

A second mortgage after bankruptcy requires at least two years waiting on part of the borrower. He should also pay all the bills on time during this period and save for the down payment amount, if possible. One fact that you have to keep in mind is that you may not qualify for the best interest rates, but your determined efforts to re-establish your credit could convince the creditor. A large down payment might impress the lender, and he may offer a lower interest rate. PMI is the other factor that would be involved, due to the poor credit history. Avoid mortgages with two to three years of prepayment penalties. Remember, the rates on mortgage after insolvency may be up to 12 times higher than that of the regular mortgage.

If you plan to get a mortgage within two years of bankruptcy discharge, you have to provide evidence for the flawless on-time payments you have made since your bankruptcy. But after the two-year waiting period, it is easy to get a mortgage with a small down payment, and you may even qualify for a 100% mortgage.

By: Max Bellamy