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Sheriff Sale in Foreclosure - Use Your Equity to Defeat or Delay It

One of the complaints of many homeowners that deal with foreclosure but whose houses have a large amount of equity is that their property is auctioned for far less than its true value at the county auction. In the majority of cases, there is no one else bidding at the sale besides the original lender, and the mortgage company only bids enough to pay off the balance owed on the mortgage or deed of trust. For borrowers in this situation, though, there may be a different solution.

Courts in the past have ruled that, because foreclosure is such a harsh remedy to a default of a contract, the use of the court and forfeiture of property should be a last resort. Especially in cases where there may be enough equity to pay off the loan in full as well as give the owners back some amount of money, selling on the open market may present a more equitable solution.

Thus, borrowers may be able to have their foreclosure enjoined for a reasonable length of time in which to list and sell their home. If there is enough equity to pay off the mortgage and receive some sort of gain on the sale, foreclosure should not be used unless there are no potential buyers. As well, open market sales present no risk to the lenders, who will be paid in full if the sale goes through.

The main issue holding this solution back is often the homeowners themselves, who are unable to use the courts with the same skill as the lender’s attorneys. They may not know how to file motions to enjoin the sale, or not even respond to any of the legal paperwork the mortgage company sends them. When the borrowers do not respond to the foreclosure, then there is little the courts can do to help them.

Lenders also have a duty to the homeowners to obtain the highest price possible for a property even at a sheriff sale. Allowing the owners to list the house for sale on the open market can be an effective way to show that the bank has made efforts to retain their equity and avoid foreclosure. The lender must meet its fiduciary duty to the homeowners to get the highest price for a property, even if state laws allow a faster process.

Despite this duty, some lenders may be unwilling to stop foreclosure for long enough to sell the house. In these cases, homeowners may be able to file bankruptcy in order to take advantage of the automatic stay and then list the house on the open market. Filing Chapter 13 may allow the borrowers to move forward with an orderly sale in order to liquidate the property and avoid a sheriff sale.

To be able to sell the house, utilize the equity, and prevent a foreclosure sale, homeowners may decide to retain an attorney about getting an injunction against the sheriff sale. Especially if there is a realistic chance of retaining some equity, courts may realize that there is only minor risk to the lender of allowing the borrowers to attempt their own sale.

Article Source: http://www.articlecat.com/Article/Sheriff-Sale-in-Foreclosure—Use-Your-Equity-to-Defeat-or-Delay-It/320952

Thursday, November 5th, 2009 at 6:28 am and is filed under Stop Foreclosure Sale. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.