We received a foreclosure notice in the mail. Is there a way to fight it?

There are two basic types of foreclosure: judicial and nonjudicial. In a judicial foreclosure, the mortgage company files against the borrower in order to obtain a decree of sale from a court having jurisdiction in the county where the property is located. If the borrower is found in default, the court gives the borrower a set time to pay the delinquency, plus costs. If there is no payment, then the court orders a sale.

A nonjudicial foreclosure is pursued by the lenders under a power of sale clause that is in the language of most standard mortgage documents. In other words, when you sign a mortgage, you preauthorize the lender to sell the house in the event of default.

Generally the power of sale process involves a notice of sale which is mailed to the property owner more than 25 days before the sale and recorded in the county where the property is located. Notice must be published once a week for three weeks, with the first publication appearing not less than 20 days before the sale, in a general circulation newspaper in the county where the property is located. The notice contains basics including the time, date and place of sale, and a warning that the property is going to be sold.

An attorney involved in this process gives the advice to act early. Call your mortgage company's workout department or home retention department at the earliest moment possible to explore options. The home retention department of a lending institution does just what it sounds like: It tries to help lenders retain their homes.

The reason you want to act early is that once the foreclosure process starts, costs start to add up. Publication can cost up to $1,000. Attorney fees add up. Costs can reach $4,000 to $5,000 before you realize it.

There are only two absolute defenses to the foreclosure. One, pay all amounts due. Second, if one of the borrowers is in the military, the Servicemembers Civil Relief Act applies. Previously known as the Soldiers and Sailors Act, it stops all judicial proceedings while a member is on active duty and for 90 days thereafter, and offers other protections.

There are strategies for homeowners facing foreclosure where these two options do not apply. As recommended above, call the mortgage company early to avoid things getting worse than they already are. In addition to calling early, call often. Don't simply wait for a package to arrive from the company. Remember, others are going through the process. You can't afford to sit back passively waiting while your file sits unattended.

Bankruptcy may also be an option. Due to the snowballing of costs, at the very least, this should be considered very early, rather than kept for a last-minute act of desperation.

As the foreclosure attorney I spoke to put it: "If you're under water, walk away from it." For example, if the homeowners started out with a property worth $200,000 and a first mortgage for $180,000, they may have added a second mortgage for $40,000. The homeowners are already $20,000 over the top, before calculating the devaluation of the property in the current market. In that scenario it's not even worth thinking about trying to pay it all off. That's why it may not be bad advice to "walk away from it."

If you do want to save the property, one reason to call the workout or home retention people is that once a lender starts to miss payments, the loan is technically in default. That means many mortgage lenders may stop accepting further payments. You must explore options early, such as resuming regular payments and addressing the arrearage. Ideally you want to ask to do that without escalating interest and penalties.

Be proactive early. Contact the lender. Make substitute arrangements with the lender for payments. If you consider a bankruptcy, pursue it earlier rather than later.


Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.

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