The moratorium on mortgage foreclosures for most federally-backed loans (which comprise about 70% of all loans) now expires on August 31, 2020, extended from the original expiration date of May 18. In addition, Kansas courts are slowly getting back underway as part of phased reopening after the COVID-19 lockdown. Unemployment is at an all-time high, and some of us will never recover from the economic damage suffered. For those and other reasons, homeowners who are behind on their mortgage payments will face foreclosure in the not-too-distant future. If you are in that situation, an experienced foreclosure defense attorney may be able to help.
In a previous blog post, one of our Sloan Law Firm mortgage foreclosure defense attorneys, Tai Vokins, answered some frequently asked questions about the CARES Act mortgage relief provisions. Aside from extension of the foreclosure moratorium end date, the information in that post remains helpful to homeowners who may need help relief from mortgage payments.
A good starting point for learning how a foreclosure defense lawyer might be able to help you is to understand how the Kansas mortgage foreclosure process works.
Under Kansas law, mortgage foreclosure is a judicial process. To initiate a foreclosure action, the lender files a lawsuit against the borrower, requesting a judgment for at least the amount you owe, as well as the right to foreclose the mortgage lien on your home. As a borrower and defendant in the foreclosure lawsuit, you can take advantage of all of the rules of civil procedure. You can file an answer, engage in discovery, file motions, and even go to trial.
If the court grants a judgment for foreclosure and you can’t pay the entire amount owed, the property is auctioned off at a public sale, commonly called a “Sheriff’s sale.” A Sheriff’s sale can only occur after a court order and the required notifications are published and sent to the borrower.
A Sheriff’s sale typically occurs on the courthouse steps, and the mortgage lenders that have the judgments are usually the parties that buy the properties. Sometimes a person or real estate investor will purchase the property at Sheriff’s sale. These people usually are required to pay the clerk of the court the entire amount of the sale with good funds (cash or certified/cashier’s check).
But even after the Sheriff’s sale, the borrower residing in the home still has the right to live in the home during what is known as the redemption period. The redemption period is the period of time in which a borrower living in the home can redeem the property by repaying the purchaser the full amount of the Sheriff’s sale price, plus interest and other costs.
Sometimes, and rarely, the redemption period can be extended to six months. The longest redemption period recognized under Kansas statute is twelve months. The redemption time period generally depends on how much of the original mortgage debt was paid before foreclosure. For example, if you have repaid less than one-third of the original debt, your right of redemption will be three months from the date of the public sale.
Sometimes the property is sold for an amount that is insufficient to pay the entire judgment. When that happens, if the borrower does not take immediate steps to protect their rights, the lender may have a deficiency judgment against the borrower for the difference between the foreclosure sale price and the total mortgage debt, with some restrictions. The lender then can use traditional collection methods to collect the deficiency, like wage or bank garnishment.
Defending against a Kansas mortgage foreclosure action is a complicated undertaking that requires an advanced knowledge of a series of complex laws and legal principles. A foreclosure defense attorney should be an experienced litigator that understands and uses the rules of civil procedure to their fullest extent.
If your lender initiates an action, you should immediately contact an experienced foreclosure defense attorney. Your attorney analyzes your circumstances and the facts of your case to determine the best strategy for defending against the foreclosure action. If options are available, your lawyer explains them and works with you to decide on the best course to follow.
Compliance with specific court procedural rules, filing processes, and deadlines is absolutely essential. Courts do not treat unrepresented individuals any differently, and attempting to defend against a foreclosure lawsuit yourself would be a serious mistake. Ignoring notice of a foreclosure action would also be catastrophic for your rights as a homeowner.
In representing you in the foreclosure action, your attorney explores all possible avenues available to you, including resolving the lawsuit to avoid sale of your home. Whether that can be accomplished depends on your specific situation.
In addition to defending against a court action, a foreclosure defense attorney may be able to help you navigate the complex process of obtaining a loan modification and avoid foreclosure altogether. If you have worked with your lender and attempted to find a solution, or if you don’t know where to begin to resolve the issues, retaining an experienced foreclosure defense lawyer may be able to assist you.
You have specific rights under state and federal law that you must assert. For example, our previous blog post about mortgage relief provisions in the CARES Act includes details about a temporary forbearance available to most homeowners. An attorney that specializes in mortgage law can help you assert those rights to the maximum extent possible, and also defend your rights when they are violated.
In all cases, your options depend on your individual circumstances and on effective (and sometimes persuasive) communication with your lender. A foreclosure defense attorney has the knowledge and skill to explore all options and attempt to find the best viable solution for you.
Unfortunately, the significant federal and state efforts to provide mortgage relief to homeowners during COVID-19 created opportunities for unscrupulous mortgage companies and servicers, and scammers alike. Mortgage scammers have already taken full advantage. The Federal Trade Commission website includes detailed information about prevalent types of mortgage scams. You should exercise the utmost caution to avoid these scammers.
The best way to avoid potential scams and unscrupulous lenders is to communicate only directly with your mortgage lender or mortgage servicing company — and know your rights. Remember to document everything. That means take detailed notes of your interactions related to your mortgage loan. Make copies of any document you sign and send to any individual, including your mortgage lender. Do not hesitate to turn to an experienced, reputable attorney that is knowledgeable about mortgage and foreclosure law the second you need help.
From our offices in Topeka and Lawrence, we assist clients throughout Kansas with mortgage foreclosure defense and avoidance. We invite you to contact us by calling (785) 357-6311 or using our online contact form.
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