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If you are being sued for failure to make your mortgage payments, or feel you may be soon, you need to know some very basic facts that can protect you during this current storm of foreclosures sweeping the country. The single most important advice that we can offer you at this time is to seek professional legal consul to assist you in knowing your rights and preventing an unlawful foreclosure on your mortgage before it is too late. You may feel you are more than capable of navigating these issues, and some folks very well may be, but most people are simply not prepared to wade through all the legal documents and jargon, and most importantly know whether or not the person or entity suing them has a legitimate claim to do so.

During the rush of the last decade to sell more mortgages lenders and originators were found to have shoddily recorded transactions and contracts, or sold them to other entities, and the fact is that in many cases those who are suing have no legal right to do so. If lenders were unscrupulous in the manner in which they issued loans in the first the place, do not assume that the scrutiny that has been put on them will have forced them into not being unscrupulous now. It has become a statistical fact that in upwards of 98% of all foreclosures the homeowner does not have knowledgeable legal representation, and in many cases those who are suing have no legal right to do so and know it. It has been proven time and again in the last few years that the wrong bank is seeking judgment, and that these cases are being dismissed by the courts because the documentation is not legitimate and no one knows where the proper documents have gone. The banks and lenders simply spent too much time selling mortgages and very little or no time servicing them. Greed and commissions were the only factors.

So many mistakes were made in the past that it is nearly impossible for an untrained individual to recognize them for what they are, and lenders and banks are taking undue advantage of this fact. If you are facing a foreclosure you need to arm and defend yourself with an attorney who is able to conduct a forensic audit of your mortgage and the suit that is being put upon you. In many locals the onus is on the banks and lenders to prove in a court of law that they have the right to seek a judgment and foreclose on your home if you have legal representation. However, if you do not have legal consul, they do not have to prove anything. Do not waste your time trying to understand how this can be, just prepare yourself by knowing it is the law in many jurisdictions.

If you have proper legal representation at your foreclosure hearing you may be able to retain ownership of your home while a new loan is negotiated that is more beneficial to your situation and ability to continue making payments. This process can drag on for several years if the lender is obstinate enough, but in the long run it’s worth it to you if you can hold onto your home and continue to build your credit as you had originally planned to do.

Another good reason to hire legal counsel is to fend off the harassing phone calls that most homeowners receive from their banks. An attorney can issue a Cease and Desist letter on your behalf that, although may not always constrain the calling, will in many cases. Banks do have the right under the Fair Debt Collection Practices Act (the FDCPA) to call, but most will stop if the letter is issued. The FDCPA does not protect collection agencies however, and if they receive a Cease and Desist letter and then continue to harass you with calls, you are then in a position to receive damages plus your attorney fees as well if you take them to court over it.

Word of Caution: Be wary of foreclosure prevention companies as they are scams for the most part and rely on fear as their primary tactic. Because foreclosure is rampant now many companies have sprung up around the country that will call and offer to help you in your time of duress. Most are prohibited from law from accepting advanced fees for doing such work, and most cannot help you to begin with. Do not be drawn in by their sympathetic pitch or offers to resolve you problems for a little as a few months of mortgage payments.

Preventative Measures: Ways to Stay Clear of Foreclosure

If you know that you are struggling to make your mortgage payments now, and feel that in the near future you may not be able to continue doing so, it is best to act now rather than later. Here we offer a few ideas that may help you stave of foreclosure and the loss of your home, your investment and you good credit rating.

The first thing anyone should do is try to discuss with their bank or lender about their payment problems. The bank has a lot to lose if you default and with so many other homeowners in the same situation there is safety in numbers. If you are currently making arrangements to continue your loan payments, after having missed one or two, you should go to the bank and speak directly to the loan officer in charge of your account and let them know that you have a solution in process. This simple action can help fix the situation rather than having your file sent to the lenders attorney for processing. Once a foreclosure has been issued to the lenders attorney any remedies that may come into effect will undoubtedly cost you more, and at a time when funds are already short, that should be avoided at all costs.

If you are late in heading off the above situation, and your file has been sent to an attorney to press for legal action you may find that the lawyer, who is working in the best interests of the lender, may have some very useful solutions that can help you get back on track and making your payments.

If you find that you still need assistance then it is time to look towards a mortgage broker to help resolve your problem. Despite having had your credit damaged by being late a month or two it may still be possible to secure some re-financing that will pay your past due installments and make it easier for you to make payment in the future. When looking at re-financing be certain to not be acting out of fear and the anxiety that it creates. Be sure the deal you are entering into can actually help you and sustain your ability to keep paying every month, not frustrate an already precarious situation.

The next option, although it may not be the route you wish to travel, can many times solve your mortgage crisis and help you to retain your credit for a future purchase. If you have sufficient equity in your home put it up for sale at a reasonable price that will allow you to pay off the current loan. You do not want to default, you want to keep your credit in good standing, and hopefully have enough left over to either down-size on your next home purchase, or rent until you are back on your feet and have a reasonable down-payment saved to buy another home in the near future.

Seek Help from the FHA

The FHA has the ability to issue mortgages that can help a borrower modify an existing loan. Contact the FHA and gather information on their certified non-profit housing counselors who can hopefully help you to devise a plan that will rescue your mortgage and prevent the worst from happening, they may suggest taking advantage of the Foreclosure Prevention Act of 2008. This act offers alternative solutions for some on the verge of foreclosure. Within the Foreclosure Prevention Act of 2008 is the relatively new program known as HOPE. In order to be qualified to participate in the HOPE program you must be unable to pay your mortgage, you must be living in the home, and you must have bought it before January 1, 2008. In addition to these qualifications no less than 31% of your income must be going towards the monthly mortgage payment, taxes and the insurance. You are further required to have a lender who will be able to forego the current mortgage balance and pay 3% of the loan balance to the FHA; finally, you can have no other loans or liens on your property, agree not to assume any within the next five years, agree to pay the FHA a share of any equity or appreciation in the property if you sell it within five years, and you must assume the new mortgage with thirty-year fixed rate terms.

Because your lender will have to suffer a loss with this arrangement the success of getting the FHA bailout will be dependent solely on their willingness to cooperate.


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