Foreclosure Attorney

Indianapolis Foreclosure Attorneys Can Give You Critical Help Early in the Process

If you stop making mortgage payments, the loan servicer (who works for the lender) will begin the foreclosure process. Indiana requires lenders to file a legal action in court to foreclose. State laws spell out the process, while both federal and state laws give you rights and legal protections while it happens.

When you get a loan to buy your home, you’ll probably sign a promissory note and a mortgage. The promissory note is your agreement to pay the loan, and the mortgage gives the lender a security interest in your property. If you stop making payments, the mortgage gives the lender the right to sell your home through a foreclosure sale to get back at least some of the money it loaned you.

Your Foreclosure Defense Attorney May Recommend Filing Bankruptcy

If your situation is at the point where you may lose your house, you should consider filing for bankruptcy. It may give you many benefits, including stopping a foreclosure sale. After you file for bankruptcy protection from your creditors, there’s an automatic stay that temporarily blocks the lender from foreclosing on your home or trying to collect its debt.

A Chapter 7 bankruptcy may delay the foreclosure for months. It involves selling your assets (including, possibly, your home) to pay your debts. If you want to keep your home and the equity you created, Chapter 13 bankruptcy may be the answer. You may be able to limit or end other debts, so your mortgage payments are more affordable.

Your Foreclosure Attorney in Indianapolis May Negotiate a Way Out

Another way to avoid the foreclosure process, though you would lose the house, is a deed in lieu of foreclosure agreement. The lender may agree to accept the deed to your property instead of going through the foreclosure process to get the title to it.

If your house’s fair market value is less than what you owe, the lender may try to get the difference from you through a deficiency judgment. If that’s ordered by a judge, you’d be obligated to pay it. To avoid this, part of the agreement between the parties must also be that the lender won’t pursue you for this deficiency in exchange for the deed. The lender agrees that the transaction fully satisfies your debt.

Your Foreclosure Attorney Will Defend Your Rights

In an Indiana foreclosure, you’ll probably have a right to:

• Get a pre-foreclosure notice
• Seek loss mitigation (a way to pay what you owe)
• Have a settlement conference
• Receive notice of the foreclosure action and a chance to respond in court
• Stop the foreclosure sale if you can get current on the loan
• File for bankruptcy, which stops the process
• Be paid any money paid at the foreclosure sale above what you owe.

If you miss a few payments, the servicer will probably send you letters and call you to try to collect what you owe. Federal laws may require it to contact you by phone to inform you of foreclosure alternatives (or “loss mitigation”). Later you would get a written notice of help you may get. You would also be assigned someone to try to help you.

Many mortgages in Indiana require the lender to send you a breach letter after you fall behind. It puts you on notice of the fact that your loan is in default. If it’s not cured, the lender can accelerate the loan and start the foreclosure process.

In most cases, under federal law, the loan must be more than 120 days delinquent before the foreclosure can start, though it may start sooner, depending on the situation (12 C.F.R. § 1024.41). During this period, you can submit a loss mitigation application to the servicer. In it, you could ask for help through a repayment plan, a forbearance agreement, or a loan modification.

If this is your primary residence, the lender must mail you a pre-foreclosure notice at least 30 days before filing a foreclosure action. This notice should:

• Tell you about the default
• Encourage you to get help from a mortgage foreclosure counselor
• Tell you about your rights before your home is sold. This includes your right of redemption (paying the entire debt and stopping the sale) and your right to live in the home until it’s sold
• Give you the contact information for the Indiana Foreclosure Prevention Network
• Include a statement about the advice you can get from housing agencies and associations and caution to be careful when contacted by people claiming they can stop the foreclosure (Ind. Code § 32-30-10.5-8).

Our Indianapolis Foreclosure Attorneys Will Represent You in Court

After the foreclosure action is filed, you’ll be served with a summons and a complaint. With our help, you should respond to the complaint. If you do nothing, the court may declare you to be in default, and your home will be on the fast track to being sold. Just participating in the process can give you more time to find a way to pay your mortgage or at least find another home.

You should get a notice about a foreclosure settlement conference where the parties can try to come up with an alternative, like a loan modification. You can ask for one 30 days after you’re served with the complaint (Ind. Code § 32-30-10.5-8).

If the material facts of your situation aren’t disputed, the lender may ask the judge for summary judgment. If the judge agrees, the lender will get a decision in its favor and your home will be ordered to be sold. If there are disputed facts, there can be a trial. If you lose, there’ll be an order to sell your home. Unless there’s a reason to appeal the decision, the process will move forward.

Depending on the facts, some defenses to a foreclosure action include:

• The lender made severe errors and didn’t comply with state procedures during the foreclosure process.
• The lender lacks standing. It can’t prove you owe it money. The mortgage may have changed hands many times. Important information and documents may have been lost. It’s up to the lender to prove its case; and without important evidence, it can’t do so.
• The servicer made serious mistakes. You may not have gotten credit for all the money you paid. You may be current on payments or owe less than the lender claims.

A Foreclosure Defense Attorney May Help Prevent a Sale

Before your house is sold, the sheriff must post a notice of the sale at the courthouse. It will be advertised in a newspaper for three weeks. This published notice must start at least 30 days before the expected sale. You must also get a copy of the notice of sale when the first advertisement is published (Ind. Code § 32-29-7-3).

You may be able to reinstate your mortgage before the sale. This means you pay what you missed, making the loan current, including principal, interest, fees, and costs. If you can do this before the judge enters judgment for the lender, this would stop the sale, and the court would have to dismiss the foreclosure. If it’s between the judgment and the sale, the sale must be postponed, but can start again if you miss another payment (Ind. Code § 32-30-10-11).

In most cases, the foreclosure sale can’t occur until at least three months have passed after the complaint was filed (longer if your mortgage was before July 1, 1975) (Ind. Code § 32-29-7-3). The process ends with the sale of your home. Your lender will probably bid on it, using the amount you owe as a “credit bid” rather than using cash. If there are multiple bidders, the one with the highest bid buys the property.

If the winning bid isn’t enough to pay all you owe, the lender may seek a legal judgment against you (a deficiency judgment) for the deficiency balance (the difference between the sale price and your debt). You can prevent this if you can accept your house’s sale earlier than the three-month period required by state law. If you agree in writing to waive this waiting period, with the lender’s consent, it can’t get a deficiency judgment. It will be unable to try to collect from you any loss on the foreclosure (Ind. Code § 32-29-7-5, § 32-30-10-7.)

Find the Right Foreclosure Lawyer in Indianapolis

As you can see, this is a very technical area of law. There are many deadlines and notices, and both sides have legal rights they will defend. Your home and the money you’ve invested in it are at risk. Given all that’s at stake, you should hire Jerry E. Smith to defend your interests, represent you in court, and negotiate the best possible outcome on your behalf.