Archive for the ‘Home Foreclosure’ Category

Bankruptcy auctions tend to be pretty mundane affairs, but every once in a while, a bankruptcy court has to sell a wildly valuable piece of property in order to help a deeply indebted person discharge his or her debts.

A recent case in Newport, California highlights just how expensive these auctions can be. Recently, a bankruptcy court decided it had to auction off a massive estate that was once valued at $87 million, according to a report from Forbes magazine.

So, if anyone is in the market for an Italian-style villa, there is one to be had at a bargain price. Of course, the discounted cost will likely still be above $50 million.

Creditors Demand Bankruptcy Auction for Huge Estate

According to a report from Forbes, the bankruptcy saga of one California estate appears to be nearing an end:

  • The owner. Sources say that the estate, which is modestly known as the Villa del Lago, was put on sale after its developer, real estate agent John McMonigle, filed for Chapter 7 bankruptcy after amassing more than $50 million in debts. This year, McMonigle sold the estate to a group of developers, who proceeded to invest an extra $10 million into improvements on the property.
  • The estate. Remarkably, the Villa del Lago is the largest plot of private residential real estate in Orange County, which is one of the country’s wealthiest zip codes. The estate is spread across 12.5 acres of gated hillside land and includes a 17-car garage, which is difficult to even imagine, let alone construct. The estate also includes a man-made lake with waterfalls and a horse stable.
  • Placed on the market. Not surprisingly, the extent of this construction project left a lot of creditors with holes in their wallets. In order to recoup their lost costs, creditors looking for millions of dollars in debt asked the bankruptcy court to put the estate up for auction. The court agreed, and the starting auction price is $37 million, which is $50 million less than the price at which the property was initially valued.

Nuts and Bolts of Bankruptcy Auction

Most bankruptcy filers don’t have to worry about an auction of their home, but this is a truly unique example of a filer who accrued a remarkable amount of debt.

In this case, according to sources, the court-mandated sale of the estate is being held by an online auction marketplace based in California.

Interestingly, while the trustee who runs the auction has a mandate to meet creditors’ expectations, the trustee still has the power to accept a sale regardless of the price. So, some bargain-hunters may wish to see how low their offers can go.

Federal bank regulators from the Office of the Comptroller of Currency, the Board of Governors of the Federal Reserve System, and the Office of Thrift Supervision have announced a measure that might mean compensation for millions of families who have lost homes to foreclosure.

According to an announcement released in early November, a newly instituted program will allow certain homeowners to collect compensation for mistakes their loan servicers made during the foreclosure process. Specifically:

  • Qualified homeowners will be mailed letters about their eligibility to participate. Homeowners should expect to receive their letter by the end of the year; those who wish to find out if they are qualified can visit the website
  • To be eligible, a mortgage must have been handled by one of the mortgage servicers participating in the program.
  • To determine whether mistakes were made in the processing of your foreclosure, you must apply for an independent review of your mortgage and foreclosure documents. Your application must be sent in by the end of April 2012.
  • If the reviewer finds that there were mistakes in your foreclosure or mortgage documents, you may be eligible to collect compensation.

Some analysts estimate that as many as four million homeowners might be affected and eligible for compensation.

Problems in Mortgage Documents

This announcement is not the first to highlight the problems that plagued the mortgage market during the housing boom whose collapse led to the Great Recession. In addition to the robo-signing scandal and several lawsuits against mortgage servicing company MERS, lawyers and judges have found many individual foreclosure cases that did not hold up to scrutiny.

This latest iteration of the problematic foreclosure theme highlights just how troubled all components of the U.S. housing market really are.

Sources note that mistakes or misrepresentations in foreclosure or mortgage documents that could make a homeowner eligible for compensation might include the following:

  • Fees that were unwarranted or calculated incorrectly;
  • Foreclosures that were carried out while the homeowner was protected by bankruptcy’s automatic stay; and
  • Foreclosures carried out while the homeowner was in talks with a lender about the possibility of a mortgage modification.

Who’s Paying for All This?

The independent review firms will be compensated by the mortgage loan servicers targeted by the federal investigation. As part of the terms laid out in the investigation’s findings, regulators required those mortgage servicers to hire review agencies unrelated to them to conduct the review of mortgage documents.

In other words, homeowners who apply to have their mortgages reviewed will not be responsible for paying the fees associated with the independent review process.

Photos leaked to the New York Times last week reveal shocking behavior on the part of a New York law firm responsible for about 40 percent of the state’s 46,572 mortgage foreclosures in 2010. Apparently, members of the Steven J. Baum law firm dressed as homeless people and squatters, and decorated the office to resemble a row of foreclosed properties.

Office decorations also reportedly included shopping carts, tarps, and other temporary residence structures associated with homelessness. The photos, it seems, were leaked by a former employee of the firm and come on the heels of foreclosure-related troubles for the law group.

Like many other bodies enacting mortgage foreclosures in recent years, the Steven J. Baum law firm faced allegations of improper behavior on its end of dealings. Specifically, the Department of Justice charged the firm with filing “misleading pleadings, affidavits, and mortgage assignments” in both state and federal courts.

To settle the charges, the law firm forked over $2 million, admitted wrongdoing, and agreed to change its practices.

But this most recently exposed blunder has reportedly led to further investigation, this time from New York’s Attorney General, Eric Schneiderman.

Insensitivity to Foreclosures?

Foreclosure firms are not popular during the best of times, but given the present housing situation in the U.S., they’re viewed as particularly villainous. An estimated three million people have already faced foreclosure since the housing boom ended about five years ago; some analysts predict that number will climb to six million by 2013.

It’s no secret that the widespread troubles in the housing market (of which foreclosures are currently the primary symptom) are to blame for much of the economic weakness the U.S. has experienced since 2008. Because of current economic conditions, the Halloween costumes and decorations donned by Baum employees read as particularly harsh.

Help for Foreclosures?

Foreclosures are often difficult to remedy, but at present those with mortgage troubles may have a number of options to help them hold on to their homes:

  • HARP: The Obama Administration’s recently beefed-up Home Affordable Refinance Program (HARP) offers homeowners who are current on mortgage payments a chance to refinance with their banks before they default and become at risk for foreclosure.
  • Chapter 13 bankruptcy: While the bankruptcy court cannot rewrite a mortgage loan during proceedings, people who file for Chapter 13 bankruptcy may have a chance to delay foreclosure proceedings long enough to find alternate living quarters. They may also be able to shed enough auxiliary debt to afford mortgage payments.
  • Chapter 7 bankruptcy: Those facing foreclosure may be able to eliminate some of the burdensome tax consequences through Chapter 7 bankruptcy protection. At a minimum, Chapter 7 filers often gain enough breathing room from creditors to find another place to live.

The Obama White House has announced two new plans to help struggling Americans better manage their debt burdens. Both measures are targeted at debts that even filing personal bankruptcy cannot always eliminate, student loans and mortgages. Here’s a look at what the debt relief programs are designed to do and how they might help you.

Mortgage Relief: The New HARP

On the mortgage side of things, the Obama Administration recently rolled out revisions to its Home Affordable Refinance Program (HARP). At present, the program provides a pathway to mortgage refinancing for those who are underwater on their mortgage loans and have loans backed by Fannie Mae or Freddie Mac.

The changes will:

  • Add protections for lenders who agree to refinance. At present, the main problem with implementing HARP has apparently been getting lenders to agree to refinance mortgages. The new version will add more protections for these lenders so they’re more likely to actually offer modified mortgage loan terms to needy borrowers.
  • Expand those eligible to participate. When the new changes go into effect, any homeowner who is underwater on a federally backed loan, is current on payments, and has no late payments in the recent past will be eligible for HARP help.
  • NOT help those who are delinquent on their mortgages. While mortgage delinquency numbers have been reportedly creeping downward in recent months, fully 3.9 percent of borrowers are currently 90 days or more late on their mortgage payments, and another two million are in some stage of the foreclosure process. The HARP revisions will not help these groups.
  • NOT help those with private mortgages. Homeowners whose mortgages are backed by an institution other than Fannie Mae or Freddie Mac are also ineligible for the HARP protections.

Student Loan Relief: Pay as You Earn

On the student loan side of things, the White House has offered an updated alternative to the current Income Based Repayment (IBR) option. When the new rules take effect, students with educational debt enrolled in Pay as You Earn will be required to pay no more than 10 percent of their monthly income in student loans.

Further, the new program will forgive federal student loans after 10 years of working in the public sector and after 20 years in certain other jobs. Certain student borrowers who are unemployed may be excused from making payments until they find work.

The Pay as You Earn program will not offer relief to:

  • Those with privately funded student loans. Only federally backed loans qualify for this particular program.
  • Those who are currently late on loan payments. As with IBR, Pay as You Go requires loan holders to be current on payments in order to enroll.

The number of graduates defaulting on their loans within a year of earning their degree rose from seven percent between 2008 to 2009 to 8.8 percent between 2009 to 2010.

Monday, October 24th, 2011

Second Mortgages & Foreclosure Rights

Filing for personal bankruptcy is often cited as a way to stop or delay mortgage foreclosure. But what happens to a person’s home in the months and years after a bankruptcy discharge? Bankruptcy may temporarily relieve the threat of foreclosure, but it doesn’t necessarily offer lifetime foreclosure immunity.

Here’s a closer look at some issues homeowners might face after filing for bankruptcy to prevent or delay foreclosure.

Second Mortgages & Home Equity Lines of Credit

One major concern for people who bought houses or refinanced their homes during the housing bubble is “junior mortgages,” or the secondary and tertiary loans and lines of credit that many homeowners were able to afford when housing prices kept rising.

Now that home values have fallen around the country, many of these secondary loans are unsecured – that is, the value of the house is less than the value of combined primary and secondary mortgages and/or credit lines.

Worry comes into play when the so-called “balloon payments” come due on these secondary loans: many homeowners simply don’t have the money on hand to cover such payments and are afraid of losing their home to foreclosure processes started by secondary mortgage lenders.

If you’re in that situation, here’s some essential information:

  • Filing for bankruptcy might help. If you haven’t already filed for bankruptcy and are having trouble making payments on secondary mortgages or lines of credit, you may be able to discharge them during a bankruptcy case. If your house’s value has fallen below the total value of your loans, secondary mortgages become unsecured debt, which is often dischargeable in Chapter 7 bankruptcy.
  • Reaffirming debts may be risky. In Chapter 7 bankruptcy, filers have three options for how to treat secured debts: they can reaffirm them (i.e. agree to keep making payments), redeem them (i.e. pay the remainder in one lump sum) or surrender the attached property (i.e. stop making payments and lose the collateral). If a filer reaffirms secondary mortgages in Chapter 7 bankruptcy, she is responsible for repaying them regardless of what happens to the house (i.e. even if she loses the house to foreclosure).
  • Lender negotiation may be possible. Chapter 7 filers who do not officially reaffirm a secondary mortgage but continue making payments may be able to negotiate modified payment terms if they become unable to afford those payments. This is particularly true if your secondary mortgage loans are unsecured: though the lender could legally foreclose, it would have to pay proceeds for the home’s full value to the primary lender before taking any money itself.
  • Debt collector negotiation may be possible: Because most secondary mortgage lenders aren’t likely to make a profit from foreclosing, there’s often a better chance that they would sell the debt to collectors than that they would foreclose. In that case, you may be able to negotiate with the debt collectors for lower monthly payments or a reduction in principal. If you do successfully negotiate modified loan repayment terms, be sure to find out whether you’ll have to pay taxes on the difference.

On September 2, the Federal Housing and Finance Authority (FHFA) sued 17 companies over sales of toxic mortgage-backed securities to Fannie Mae and Freddie Mac. Among those named in the suit were many of the country’s largest banks, including Bank of America, JP Morgan Chase, CitiGroup, and Morgan Stanley.

The suit does not currently request a specific amount of money in damages, but according to the Associated Press, Fannie and Freddie bought $196 billion worth of toxic securities during the housing boom. Here’s a closer look at the suit and what might happen.

FHFA: Financial Firms Broke State & Federal Laws

One of the suit’s allegations is that the financial firms violated federal and state laws by selling the securities to Fannie Mae and Freddie Mac, two government-sponsored companies that help make mortgages more affordable to Americans. Specifically, the lawsuit claims that the banks and other lenders:

  • Sold mortgage-backed securities that had “materially false or misleading” statements and omissions of critical information;
  • Falsely indicated that the mortgages met legal underwriting guidelines and were all thoroughly reviewed; and
  • Substantially overstated borrowers’ ability to make mortgage payments on their loans.

At its core, the lawsuit claims that the 17 sellers lied to Fannie Mae and Freddie Mac to get them to buy loans that they knew were toxic, yet sold them as low-risk to the government agencies.

Housing Market Bubble, Burst & Fallout

The housing boom allowed millions of Americans to get mortgage loans. Many of those loans were sub-prime, had adjustable rates or were ultimately unaffordable to the borrowers. When interest rates reset a few years after the loans were originated, many borrowers were unable to make payments and defaulted.

While those borrowers faced the problem of foreclosure and perhaps filed for bankruptcy to help ease their debt burden, they were not the only ones affected by their inability to pay.

Investors that bought their mortgages (often after the loans were pooled and sold off in sections in a process called “securitization”) stopped earning money on their investments. Because Fannie and Freddie were big investors, they stood to lose a lot of cash – which put into question their ability to continue supporting the U.S. housing market by buying mortgage debt.

The FHFA (which oversees Fannie and Freddie) is taking legal action in part because of the devastating financial consequences the two companies faced. In July 2008, the federal government had to take action to make sure the two enterprises didn’t fail because, at the time, they guaranteed or owned about half of the residential mortgages in the U.S. (worth about $6 trillion).

Theoretically, the lawsuit could help recover losses that Fannie and Freddie suffered from the collapse of the housing bubble. It might also serve as a warning and/or deterrent to other financial institutions and could prompt legislative change to regulate how residential mortgages are originated, securitized and sold.

The lawsuit was filed in New York and Connecticut.

Seven fraudulent mortgage modification services are facing cease and desist orders from the state of New Jersey, according to reports from The legal action comes from the state’s Department of Consumer Affairs and includes steep civil penalties against the firms.

Unfortunately, mortgage scams are nothing new and in fact have been fairly common since the housing market collapsed and adjustable-rate mortgages began to reset en masse. Here’s a look at how these particular companies allegedly scammed New Jersey residents:

  • Promise for negotiation: Scammers apparently piqued victims’ interest by offering to negotiate with their mortgage lenders on their behalf. This offer is understandably attractive to those homeowners struggling to make mortgage payments, who might be in danger of foreclosure or considering a bankruptcy filing to help ease their debt burden.
  • Collection of fees: Naturally, the scammers insisted on collecting payment for their work up front, before actually delivering on their promises. In many cases, consumer protection laws prohibit companies from collecting fees before performing any services.
  • Failure to follow through: Unsurprisingly, the scammers did not actually help victims adjust their debt. In fact, the seven companies weren’t even registered as debt-adjustment services, as the state requires, according to reports.

Debt Negotiation as a Bankruptcy Alternative

While New Jersey’s attorney general has now taken action to repair some of the damage these fraudsters caused, it’s likely that at least some victims endured serious financial hardship because of the scam.

On the (mildly) positive side, the scam provides an excellent opportunity to review some of the differences between debt adjustment services and personal bankruptcy.

Bankruptcy alternatives:

  • Are not regulated as strictly as bankruptcy: At both the federal and state level, there are laws designed to protect consumers from scammers like the ones that struck in New Jersey. But, as this mortgage scam shows us, it’s fairly common for fraudsters to break those laws. Bankruptcy, on the other hand, follows the same set of laws no matter where in the country a filer lives. Those laws are published online where filers can easily access them.
  • May affect credit differently than bankruptcy: One reason many people seek non-bankruptcy alternatives to eliminating or reducing debt is because of the negative perceived impact that bankruptcy can have on a credit score. But assuming your credit won’t be hurt by debt settlement or debt negotiation is a gamble: if you work with a less-than-trustworthy company, you may end up losing money and hurting your credit.
  • Do not offer the legal protections that bankruptcy does: One major benefit of bankruptcy is that filers know that they can expect certain protections (e.g. from creditor contact and collections) after they file their case. No such legal protections exist for bankruptcy alternatives.

Bankruptcy is not right for everyone, but it’s an important and powerful debt-relief option to consider for those in financial distress.

Wednesday, July 20th, 2011

Foreclosure after Bankruptcy

Chapter 13 bankruptcy is sometimes considered “famous” for helping people avoid or delay foreclosure. But it’s important to understand that filing for Chapter 13 (or even Chapter 7 bankruptcy) does not guarantee that you will avoid foreclosure.

Here’s a look at foreclosure laws and how foreclosure after bankruptcy works.

Preventing Foreclosure During Bankruptcy

Filing for bankruptcy temporarily stops foreclosure in most cases. Here’s why:

  • A legal protection called the automatic stay takes effect as soon as the bankruptcy case is filed. The automatic stay halts all collection actions, including creditor calls, repossession and foreclosure.
  • This protection typically stays in effect for the duration of the bankruptcy case. That could be as little as four to six months for a Chapter 7 case and as long as three to five years for a Chapter 13 case.

But the protection of the automatic stay only lasts as long as a filer sticks to the terms outlined by the bankruptcy agreement. In Chapter 13, that means making regular monthly payments according to the repayment plan.

If the filer can’t catch up on mortgage payments even with the help of bankruptcy, foreclosure might still be an option after the bankruptcy case ends.

Liens, Second Mortgages & Foreclosure after Bankruptcy

Things can get tricky, too, when filers have second mortgages or home equity lines of credit (HELOCs) when they file for bankruptcy. And thanks to the housing market that collapsed in 2007, many Americans currently do have multiple mortgages or loans attached to their homes.

Here’s how they’re treated by the bankruptcy court:

  • A HELOC in Chapter 13 bankruptcy: In Chapter 13, filers are required to make payments to their primary mortgage lender and to the bankruptcy trustee. The trustee distributes these payments among priority debtors. After the case concludes, the HELOC may be eliminated (discharged). The lender will have gotten a percentage of trustee payments during the case.
  • A HELOC in Chapter 7 bankruptcy: Chapter 7 may cancel the debt on a home equity credit line, but it cannot cancel the lien that creditor has on the house. In fact, a HELOC lender may still be able to foreclose on a filer’s house after bankruptcy is over (though if there’s no equity in the house, this would be unlikely). One way to avoid post-Chapter 7 foreclosure is to reaffirm payments to a HELOC lender in during bankruptcy.
  • Second mortgages in Chapter 13: Second mortgages that are no longer secured by a home’s value can be discharged in Chapter 13 bankruptcy. Underwater homes may have second or third mortgages that are not secured any longer by the house’s value (that is, the amount of the loans totals more than what the house is currently worth). However, discharging a second mortgage will not affect what a bankruptcy filer owes on a first mortgage.

Could You Face Foreclosure after Bankruptcy?

If you’re considering filing for bankruptcy as a way to escape foreclosure, it’s essential to speak with a bankruptcy lawyer to make sure you understand how your mortgage will likely be affected by a bankruptcy filing – and whether you might find yourself facing foreclosure after you get your discharge.

Monday, June 6th, 2011

Housing Prices Hit Eight-Year Low

The latest figures from Standard & Poor’s Case-Schiller Index show that the double-dip in the housing market many economists feared is now a reality. In other words, according to sources, housing market prices have taken another nosedive and home values are now near the same level they were in mid-2002.

How much of a dip is this second downward spike? Reports indicate that:

  • The first quarter of 2011 saw a 4.2 percent decline in home prices.
  • In the final quarter of 2010, prices dropped 3.6 percent.
  • Home prices are currently 5.1 percent lower than they were this time last year and, according to Standard & Poor’s, have reached a new low even for the recession.

If all this sounds like bad news, the kicker is that the cycle of foreclosures and lowered home values seems unlikely to end any time soon.

Gloomy Outlook for the Housing Market

Consider these troublesome figures.

  • About 1.9 million homes in the U.S. are currently in some stage of foreclosure, according to RealtyTrac, a company that keeps track of such things.
  • Housing prices fall when supply is greater than demand (that is, when there are more homes available than people looking to buy).
  • Right now, supply is skyrocketing: empty foreclosure properties are common sights in many states, and apparently nearly two million more are about to follow.
  • Unfortunately, demand is also fairly low: many Americans are still skittish about their employment situation and unwilling to take on the burden of a mortgage. Further, many banks have tightened lending standards, making mortgage loans harder to come by even for those interested in buying.
  • On top of all this, sources note that as many as 28 percent of U.S. homes are currently underwater, meaning that the owner owes more on the mortgage than the home’s current value. Underwater homeowners may find themselves in foreclosure down the line, whether by strategically defaulting or by being unable to make payments.

Can Chapter 13 Bankruptcy Help?

In the past, Chapter 13 bankruptcy has often been heralded as a way to stave off or prevent foreclosure for some filers. The question of whether Chapter 13 could help some of the millions of Americans who might have mortgage foreclosure in their future is a complex one.

Chapter 13 may work for some people facing foreclosure, but only if those people have sufficient income to make regular payments according to the repayment plan. In other words, if you’re in danger of losing your home because you lost your job, Chapter 13 may not do the trick.

One interesting note, though, is that some sources have reported bankruptcy judges ruling for mortgage cram-downs in Chapter 13 cases, despite laws that prohibit such rulings.

Many Americans currently considering bankruptcy are in financial trouble partly because of the struggling housing market. Underwater mortgages (those in which the homeowner owes more than the home’s current value) are a reality for as many as 28 percent of American homeowners.

Even though bankruptcy law prohibits the court from modifying the terms of a primary mortgage, some bankruptcy lawyers have found a legal way to help their clients stay in their home and avoid foreclosure.

Unsecured Second Mortgages

Here’s the process some bankruptcy petitioners are following to help ease their mortgage debt:

  • File for Chapter 13 bankruptcy: Entering a Chapter 13 case means that the filer agrees to a three- to five-year repayment plan in which she will catch up on past-due debts.
  • Petition the court to declare a second mortgage unsecured debt: Filers who have second mortgages that, combined with their primary mortgages, exceed the value of their home’s current value, may be able to make this move. A bankruptcy lawyer can explain in more detail how the move works and whether it might be possible in any individual’s case.
  • Make payments according to the repayment plan: If the court accepts the petition, the filer must continue making payments according to her repayment plan for the duration of the bankruptcy case. At the end of the case, the remaining unsecured debt (including that from the second mortgage) may be excused by the court.
  • Avoid foreclosure: In many cases, reclassifying a second mortgage as unsecured debt allows filers to make mortgage payments and remain in their homes.

The Winners and the Losers

Naturally, this legal maneuver is good news for struggling homeowners and potential bankruptcy filers. But banks and other lenders are apparently less than thrilled about the development – after all, they’re the ones who lose out on mortgage payments when debts are excused in court.

But, as one news outlet reminds us, the only way to change the law is an act of Congress. Given the current state of the American housing market and level of financial difficulty many Americans are facing, a move of that sort seems unlikely: what politician would want to be responsible for taking away a tool for avoiding foreclosure?

Can You Save Your Home from Foreclosure?

In order to take advantage of this legal protection, your financial situation must meet a number of criteria:

  • Sufficient income to make payments: In order to benefit from Chapter 13, you have to be able to make monthly payments according to a repayment plan, which means you have to have a steady source of income.
  • Two (or more) mortgages: Again, primary mortgages cannot be modified in bankruptcy court.
  • An underwater home: Finally, you can only have debt declared unsecured if there is no property to secure it (that is, if your loan is worth more than your home). If your home value exceeds the amount of your primary mortgage, then at least a portion of the second mortgage is secured by the home, and cannot be excused by the court.

If you’re ready to find out whether this might work for you, connect with a bankruptcy lawyer today.