FORECLOSURE PREVENTION AND LOAN WORKOUTS

February 18, 2010

ATLANTA MORTGAGE AND LOAN MITIGATION LAWYERS INQUIRE; UNDER O.C.G.A. SECTION 23-2-114, DOES THE BANK OR LENDER HAVE A DUTY TO YOU? YES MAYBE THE ANSWER

As an Atlanta foreclosure lawyer, it is apparent to me that in today’s economy, many people are having problems with their mortgage payments and their mortgage companies. Many people have suffered a loss of income that has affected their ability to make their monthly mortgage payment. Others have found themselves stuck in homes that are worth far less than what is owed on the mortgage. Should you have any trouble making your mortgage payments, you likely are going to have to deal with a mortgage company in order to retain your home and move on with your life. Unfortunately, this is easier said than done.

Our Georgia loan modification lawyers realize Mortgage Companies and Banks were not prepared for the economic changes that have occurred in the housing market. Over 3.3 million homes have gone into foreclosure since January of 2008. The Banks simply do not have the employees, time or resources to adequately deal with the number of foreclosures and loan defaults that are occurring. This means long delays in modification deals, never speaking to the same person at the bank twice and general confusion that can lead to losing your home in foreclosure, even if you think that you are negotiating a modification or that you have an agreement concerning you arrearage in place with your lender.

Complicating the situation even further is the fact that most mortgages in Georgia provide that any foreclosure are “non-judicial”. This means that the lender does not have to use the court system to foreclose on your property and sell your house. Instead, they are allowed to send you a notice that they intend to sell your house on the courthouse steps on the first Tuesday of the next month. They also publish this notice in the local paper. Then when four weeks have passed, they auction the house at a sheriff’s sale to the highest bidder.

Fortunately, legal options are available those are facing foreclosure. In Georgia, mortgagors are required to use the utmost good faith in their dealings with you.

Specifically, O.C.G.A. § 23-2-114 provides:

Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of sale shall be that pointed out for public sales. Unless the instrument creating the power specifically provides to the contrary, a personal representative, heir, heirs, legatee, devisee, or successor of the grantee in a mortgage, deed of trust, deed to secure debt, bill of sale to secure debt, or other like instrument, or an assignee thereof, or his personal representative, heir, heirs, legatee, devisee, or successor may exercise any power therein contained; and such powers may so be exercised regardless of whether or not the transfer specifically includes the powers or conveys title to the property described. A power of sale not revocable by death of the grantor or donor may be exercised after his death in the same manner and to the same extent as though the grantor or donor were in life; and it shall not be necessary in the exercise of the power to advertise or sell as the property of the estate of the deceased nor to make any mention of or reference to the death.

The Supreme Court of Georgia has interpreted this statute to mean that a mortgagor must deal with a mortgagee in the utmost good faith, and if they do not, then the mortgagee may have a cause of action against the mortgagor for not acting in good faith. This includes lenders and banks failing to negotiate in good faith with the homeowner regarding payment and when lenders fail to provide the proper notices in foreclosure. If a court determines a foreclosure to have been in violation of these duties, then the foreclosure may be rescinded or the homeowner may be awarded monetary damages.
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February 9, 2010

HOMEOWNERS UNDERTAKING A SHORT SALE OR A DEED IN LIEU OF FORECLOSURE SHOULD HAVE AN ATLANTA, GEORGIA, FORECLOSURE LAWYER REPRESENT THEM

by Kasey Libby and Duncan Adams

Our Atlanta, Georgia, loan negotiation lawyers strongly advise you hire experienced Georgia mortgage attorney if you are engaging in a short sale or a deed in lieu foreclosure to mitigate the losses incurred by foreclosure on your home. Remember, the banks have attorneys working hard for them to ensure that the bank losses as little money as possible.

A short sale occurs when the sales proceeds are less that the balance owed on the mortgage. The bank or mortgage lender agrees to accept the short sale and incur a smaller loss rather than waiting for a foreclosure. Sometimes the bank will forgive the remaining loan balance, but this needs to be negotiated and properly documented. Otherwise, the bank may initiate litigation against the homeowner to recover the remaining unpaid loan balance plus costs and attorney’s fees.

A deed in lieu of foreclosure provides another alternative to foreclosure. With a deed in lieu of foreclosure, you give your home to the lender in exchange for the lender agreeing to accept the loan without a foreclosure sale. The lender also should promises not to initiate foreclosure proceedings. In many cases, it is possible to have the lender agree in writing to forgive any deficiency that remains after the house is sold. Forgiveness of any deficiency needs to be negotiated and properly documented much as it would in a short sale.

Short sales and deeds in lieu of foreclosure are considered better for homeowners than a foreclosure. The main reason is that they have less of an adverse affect on a person’s credit report and can dispense with forgiveness of debt. However, they have many pitfalls. As such, it is very important to be represented by counsel when negotiating a short sale or deed in lieu of foreclosure.

February 9, 2010

AN EXPERIENCED ATLANTA, GEORGIA, MORTGAGE LAWYER CAN HELP SAVE YOUR HOME — ATLANTA, GEORGIA, FORECLOSURES ON THE RISE!

by Kasey Libby and Duncan Adams

Our Atlanta, Georgia, mortgage loan modification lawyers know that if you are among one of the tens of thousands of Georgia homeowner’s facing an Atlanta foreclosure it is imperative you contact an experienced Atlanta foreclosure attorney immediately and at the first sign of mortgage troubles – before it is too late.

Contacting a highly knowledgeable foreclosure attorney when you first start having trouble paying your mortgage can prevent or stop the foreclosure process altogether. Early contact is one of the most important steps you can take to save your home from foreclosure, sale, and the loss of your home.

The Atlanta Journal-Constitution reports that Georgia mortgage-holders now have the 5th highest delinquency rate in the nation according to TransUnion. Moreover, the Georgia foreclosure process is very fast. Georgia permits both judicial and “power of sale” foreclosures. In Georgia, the “power of sale” refers to a clause in most mortgages allowing the lender the right to sell the property outside the court system. This means your lender can schedule the sale of your home as soon as you are in default – and does not have take you to court. You may be able to stop the foreclosure by paying off your delinquency, but your lender is not required to reinstate the mortgage.Having an experienced Atlanta, Georgia, loan modification attorney involved at the start – before you receive a notice of default – is crucial for several different reasons.

October 1, 2008

BANKS AND LENDERS WANT TO WORK WITH YOU AS GEORGIA MORTGAGE CRISIS WORSENS – THE BANKS ARE IN TROUBLE TOO – MAYBE MORE THAN YOU KNOW

by Kasey Libby and Duncan Adams

Everyone knows that times are tough for homeowners right now, especially here in the Atlanta, Georgia area where there are unprecedented amounts of foreclosures. As a real estate lawyer in Atlanta, I have certainly seen a dramatic change in my own practice. Until fairly recently, I was able to help many clients become homeowners by reviewing and writing contracts and agreements for their new homes. Unfortunately, a large part of my real estate practice has now shifted to helping homeowners with financial problems avoid foreclosure by negotiating with the banks and lenders that hold their mortgages. In fact, we are seeing remarkable and unprecedented times as banks and lenders are in trouble, confused about where their institution will end up next and with no viable help from the government.

I believe that part of the problem is that some homeowners don’t realize that there is a foreclosure process — and that it offers several opportunities to work things out with a lender. Banks don’t like to foreclose because they often lose money on foreclosures, and because maintaining and selling homes is not really part of their business. They are open to working with you to keep your payments current, especially if your financial problems are temporary. There several ways banks and lenders are engaging in this loan workout process as the banks and lenders know that getting something is better than nothing. They oftentimes will forestall payment requirements, work out different interest rate percentages, mortgage loan types and terms.

If you are behind on your mortgage payments in GA, you will get only get certified letters and maybe phone calls. If your having trouble paying your mortgage or have already missed payments, it is well worth the money to hire an experienced attorney to stall or re-negotiate your loan terms and the before the bank or lender begins the foreclosure process. At any point during that time, an experienced real estate loan workout attorney can call your bank or lender, explain your situation and ask about your options. You may be able to get a temporary break from payments, refinance or supplement partial payments with a loan. Even after foreclosure proceedings have started, in this unprecedented market and time, are likely still be able to have an experienced attorney negotiate with your former bank or lender to re-instate your mortgage or stay the official proceedings of removing you from your home.
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