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Understanding the Foreclosure Process and Timeline- Part 1
by Eric Penfield
http://haltyourforeclosure.us/
The legal process of foreclosure is precipitated by a
borrower failing to honor the terms and conditions of the
agreement with their lender. It occurs when one or more
mortgage payments are missed, compelling the lender to seek
to protect its interests by bringing a legal action against
the borrower. While payment delinquencies occur for a
variety of reasons with a wide group of creditors, mortgage
delinquency is generally considered to be a much more
serious matter. This article addresses the foreclosure
within the United States of America only.
While the basic foreclosure process follows a general
series of events, the exact course of action varies by
state and county. It is essential that a delinquent borrower
facing a foreclosure filing understand the rules and laws
that apply in his/her state and county of residence. You
should consult with an attorney and the courts that apply
for any foreclosure action being brought against you for
the specific dates that apply.
A Breach Letter will follow one or missed payments to the
lender. This is an extremely serious piece of correspondence
that signals the intent of the lender to escalate their
efforts to protect their financial interest. It can be
issued to the borrower within 90 days of the first mortgage
delinquency. Borrower failure to respond to a lender
Breach Letter can likely result in the lender
filing a foreclosure petition.
The lender will generally wait 45 days following the
issuance of a Breach Letter to file for foreclosure. The
borrower must use this period of time to contact the lender
in an attempt to find a way to bring the loan current.
Lenders do understand that circumstances arise that pose
difficulties for borrowers, and will generally work with a
borrower to find a solution. Do not ignore communications
from your lender, and certainly never ignore a Breach
Letter. Failure to respond to it may likely lead to the
loss of your home.
If satisfactory response to a Breach Letter is not received,
the lender will likely instruct an attorney to file a
foreclosure petition. This will result in the court issuing
a Summons to the borrower, which is an official legal
document that signals the beginning of a formal legal
process in which the lender is seeking to deprive the
borrower of his/her legal rights to their property. If you
have received a Summons, it is strongly recommended that
you seek the services of a qualified and licensed attorney
to represent you. Failure to do so could cost you your
home.
Two very important components of the Summons are the Return
Date and the Complaint. The Return Date is the day by which
formal response to the court must have been received. It
is not the date that the borrower must appear in court.
This is an extremely important date to observe. Failure
to reply to the court will result in the borrower no longer
being entitled to official communications from the court.
It is best to respond to the court at least two days prior
to the Return Date.
The filing an Appearance Form is the required communications
to the court to indicate your intention to be subject to the
court jurisdiction in the foreclosure proceedings. It is
strongly recommended that you consult with your attorney
regarding the filing of the Appearance Form.
The Complaint contains language the lays out all of the
terms and conditions of the mortgage agreement that have
been violated by the defendant (borrower). In this section
the plaintiff (lender) will be very specific as to why they
are alleging the borrower has violated their agreement.
A number of very special circumstances can be cited by the
plaintiff as valid reasons why the foreclosure should not
be allowed to continue. For borrowers who are either
unemployed or under-employed, special protections may exist
to assist you in stopping or forestalling the foreclosure
process. These special circumstances are normally spelled
out in the Complaint. You must apply to the court within
25 days of the Return Date if you wish to seek court
protection under these protections.
If your mortgage is insured by the Veterans Affairs (VA),
Housing and Urban Development (HUD), Federal Housing
Administration (FHA) or the Federal National Mortgage
Association (Fannie Mae), you may also have additional
rights during the foreclosure process. You should consult
your mortgage closing documents, your attorney and these
organizations to determine if additional rights apply with
respect to a foreclosure upon your home.
An Answer to the court must be filed within 15 days of
the Appearance Form filing. The Answer contains the
defendants response to the allegations set forth in the
Summons. The Answer should address each and every allegation
contained within the Complaint. The defendant and
his/her attorney must decide if they agree or disagree
with each allegation. Any defense to any or all of the
allegations should be set forth in the Answer.
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