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Monday, November 28, 2011

What's The Next Step When Served With a Foreclosure Writ in Connecticut?

In Connecticut foreclosure writs are served by State Marshalls who despite the common belief to the contrary do not have to serve a homeowner in hand rather they can make abode service which means rubber banding to a front door constitutes valid service. If the wind has not blown your writ away (I wish this was only a joke, but it happens on occasion) and you find this on your door what is your next step. The first thing you'll see in front of the actual summons is the notice of foreclosure mediation. It sometimes confusing placement aside this well intentioned program was enacted by the Connecticut legislature to provide homeowners with the opportunity to enlist the help of a mediator to negotiate a modification of their mortgage loan and place the foreclosure process on hold during mediation.  Based on my experience prior to deciding on proceeding with mediation homeowners should consult with an attorney especially one with both bankruptcy and foreclosure defense/workout expertise. In my case I offer a free initial consultation to review all of the homeowner's options and recommend the best option to suit the facts of their case.
 I do recommend foreclosure mediation in most cases. Foreclosure mediators are judicial department employees who work at the courthouses where the mediation sessions are held. They are borrower friendly since their goal and reason for existence is to achieve an acceptable settlement of the parties. This does not always mean a modification, however, this can also mean a short sale, a deed in lieu of foreclosure or an agreed upon judgment date. In order to qualify for foreclosure mediation:

You must be the owner-occupant of a 1, 2, 3 or 4 family residential property;
you must be the borrower; the signatory to the mortgage note;
the property being foreclosed must be your primary residence;
the mortgage on your owner-occupied residential property must be in foreclosure; and the property must be located in Connecticut. See Form JD-CV-108.

Based on my experience I have seen more loans modified in foreclosure mediation than by borrowers on their own. This is an unfortunate reality of the current way most banks handle modification requests and that it takes the actual commencement of the foreclosure to lead to an acceptable modification. Again this is not to say all cases in mediation are modified, however, it does allow homeowners the opportunity to plan and negotiate other resolutions as well like short sales. Finally, no matter what the ultimate result mediation stops the foreclosure process and provides additional time to homeowners to stay in their homes while negotiating with their mortgage lenders.

Removal of Judgment Liens in Bankruptcy

In many Chapter 7 bankruptcy cases where debtors are seeking to discharge their unsecured debts or Chapter 13 payment plan bankruptcy cases where debtors are paying only a portion or not any of their unsecured debt homeowners can remove existing judgment liens from their primary residences.  This lien avoidance under Section 522f of the Code allows homeowners to use their homestead exemption under Federal or State Law as necessary to obtain an order to record on the land records which effectively releases the judgment liens avoided by the order. This secured debt is therefore converted to unsecured debt just like credit card debt and can be discharged like other unsecured debt.  The fact a judgment by itself has been entered on a debt does not make it nondischargeable.  The usual formula to determine if a judgment lien can be avoided takes into consideration the value of the property and compares it against consensual liens like mortgages on the property together with the appropriate homestead exemption. If the total amount of the mortgage(s) plus the homestead exemption equal or exceed the value of the property the judgment liens can be avoided.  Therefore, in a Chapter 7 debtors can enhance their fresh start by not only discharging unsecured debt, but can remove judgment liens to increase their equity in their homes. In a Chapter 13 case the same is true contingent upon the successful completion of their Chapter 13 payment plan.