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Can Bankruptcy Stop Foreclosure

March 23, 2009

foreclosures1Stop Foreclosure in the United States

Mortgage companies continue to foreclose on American homes at an alarming rate. The real estate market boomed in the late 1990’s and early 2000’s. Property values appreciated at an unprecedented rate and homeowners cashed in on their new found home equity. At the same time, a variety of “creative” mortgage options became available, options mortgage lenders said would allow people who might otherwise not have qualified for home financing to become homeowners.

Now, interest rates have climbed, and the real estate market has cooled. Homeowners with adjustable rate mortgages (ARMs) and interest-only loans are reaching the “shock point” and seeing payments increase dramatically, but prepayment penalties, rising interest rates, and declining home values make refinancing difficult-especially since these “creative” mortgage options have left most borrowers with little or no equity.

What is Mortgage Foreclosure?

Foreclosure, in simplest terms, is the process by which the bank or mortgage company that has a lien on a piece of real property takes that property back because the borrower / property owner hasn’t complied with the terms of the mortgage agreement. Most often, this is because the borrower has fallen behind on payments.

The exact foreclosure process differs somewhat from state to state, but the real problems usually begin when mortgage payments are 16 days past due. Although it is still possible to work out a repayment plan with the lender at that point, many homeowners do not. This may be because they’re still in the midst of the financial difficulties that caused the past-payment, or simply because they’re hoping things will get better with the next paycheck or the next month or some other change in circumstances.

Unfortunately, many people delay too long while hoping for things to get better. If a homeowner has significant equity (usually at least 15 – 25%) in the home and is less than 90 days past due, there may be a variety of possible ways to stop foreclosure, including refinancing. However, once a loan is more than 90 days past due, or if the homeowner doesn’t have significant equity-which is often the case due to creative financing options-refinancing can be difficult. In those cases, Chapter 13 bankruptcy may still allow the homeowner to stop foreclosure.

How Can Chapter 13 Bankruptcy Stop Foreclosure?

Many people file for Chapter 13 bankruptcy specifically to stop foreclosure. In most cases, an automatic stay is entered as soon as a Chapter 13 bankruptcy petition is filed. The automatic stay will temporarily stop foreclosure, along with all other collection action, regardless of the stage of the foreclosure proceedings. With the automatic stay in place, the debtor and his attorney have the breathing room to work out a Chapter 13 repayment plan.

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