Homeowner Rights On a Foreclosure

Susan Weber
Homeowners have rights during the foreclosure process.

Your homeowner rights on a foreclosure can help you delay or alleviate the foreclosure altogether. Be sure you understand your rights and the timeframes within which you have to exercise those rights.

Foreclosure Basics

Foreclosure is a legal process during which a lender goes to court in order to take possession of a home on which the mortgage is delinquent. The foreclosure process includes many distinct steps. Each step has a specific timeframe which must be followed. Once the lender regains possession, the homeowner must leave the property.

Basic Types of Foreclosures

There are two basic types of foreclosure: "foreclosure by sale" and "strict foreclosure." It is up to the homeowner to select the type of foreclosure that will be used.

Foreclosure by Sale

In a foreclosure by sale, the judge sets a "Sale Date" when the property is sold by the lender. The money received from the sale is used to pay the unpaid mortgage debt. Any remaining money is given to the homeowner. Homeowners would probably choose this type of foreclosure if equity existed in the home which they want to try to regain from the sale.

The homeowner's rights until the Sale Date include:

  • The homeowner has full possession of the home.
  • No one can enter the home without the homeowner's permission.
  • The homeowner can stop the sale by paying the amount of the judgment and any court costs and legal fees.

Strict Foreclosure

In a strict foreclosure there is no sale of the property. Instead, the judge sets the date that the lender receives the title to the property, called the "Law Day." Law Day might be anywhere from several weeks to six or nine months from the date of the judge's ruling. Since there is no sale of the home, the homeowner has no chance to receive any money. A homeowner might select this type of foreclosure if they have no equity or only a very limited equity in their home.The homeowner's rights until Law Day include:

  • The homeowner can avoid the foreclosure by paying what is owed on the mortgage plus any court costs and legal fees.
  • The homeowner can try to sell the property.
  • The homeowner can try to borrow the money from another lender.

Homeowner Rights on a Foreclosure

Homeowners do not lose their rights just because they are told that their home is going into the foreclosure process. In fact, homeowners should be sure they know their rights and do everything they can to avoid foreclosure.

Rights to Understand the Foreclosure Process

  • Free foreclosure counseling - Homeowners can receive free counseling from non-profit housing counseling agencies. These specially-trained counselors can help the homeowner understand the foreclosure process and point out the options available to the homeowner. These counselors provide free counseling to homeowners who are trying to avoid foreclosure. HUD-approved counseling agencies can be easily located on the internet.
  • State programs - Many states sponsor special programs and resources to avoid foreclosure.
  • Emergency mortgage assistance - Some states have special programs to provide assistance to homeowners who have been unemployed and feel that they will be able to resume their mortgage payments in the future. These programs may include special grants which are given to the homeowners.

Rights to Avoid Foreclosure

  • Workout options - Homeowners can work with their lender to see if they can find a solution to their outstanding mortgage payments other than foreclosure. For example:
    • Reinstatement - Pay the entire amount owed by a specific date
    • Forbearance - Reduce or suspend mortgage payments for a period of time
    • Repayment plan - Establish a plan to pay unpaid mortgage payments in addition to current mortgage payments
    • Mortgage modification or refinance - Under the federal Homeowner Affordability and Stability Plan (HASP) passed in 2009, homeowners might be able to reduce their monthly payments with a loan modification or refinance. Lenders are required to work with homeowners to determine if a permanent change can be made to the terms of the mortgage in order to lower the monthly payment. Some of the potential changes might include lowering the interest rate or extending the term of the mortgage.
  • Give up the property - The homeowner can choose to give the property title back to the lender and totally avoid the foreclosure process. By avoiding the foreclosure process, the homeowner may be able to avoid a negative entry on their credit report.

Rights during the Foreclosure Process

  • Sell the property - The homeowner has the right to sell the property any time before the Law Day or Sale Date. This is called a "Right of Redemption."
  • Extend the Law Date or Sale Date - The homeowner can ask the court to delay the foreclosure date.
  • Rights to the property - The homeowner keeps the rights to the property until the Law Day or the sale of the property. As long as they have the rights to the property they can do anything they want with the property including live in the property, rent the property and make changes to the property. The homeowner will be notified of the date and time by which they must leave the property. If they don't leave by that date, they will be evicted. Any possessions left in the property will be put in storage. The homeowner will have 15 days to claim their possessions after which any unclaimed property can be sold to the highest bidder.

Pay Attention to Protect Your Rights

The foreclosure process is a long series of court proceedings and deadlines. Homeowners need to pay special attention to these proceedings and deadlines to know how much time they have to protect their homeowner rights on a foreclosure. Homeowners can file an "Appearance" to be sure that they receive notice of all court activities related to their foreclosure proceedings.

Homeowner Rights On a Foreclosure