Get Out Of Debt

Introduction

Eviction (called “forcible entry and detainer” in Texas) is a process by which an owner recovers possession of real property and, if appropriate, a judgment for unpaid rent, attorney’s fees, and court costs against a tenant or occupant. Forcible detainer actions are held in Justice Court which has original jurisdiction over possession. The landlord’s objective is to gain a judgment and a writ of possession.

Foreclosure is the procedure by which a lender obtains both possession of and title to real property or, if the bidding is sufficiently high, liquidates its interest in the property entirely by means of a sale to a third party. Most foreclosures are non-judicial (ie., they occur without participation of a court) and are held on the first Tuesday of every month. The objective is to satisfy the debt and cut off all competing claims to or against the property.

Evictions

Evictions or “forcible detainer” actions are governed by Sec.

24.01 of the Texas Property Code. They are appropriate if there exists a landlord-tenant relationship (with or without a written lease) or if a person is occupying real property without authority to do so. After proper notice is given, the eviction must be filed with the Justice of the Peace in whose precinct the property is located. This Justice Court, and only this court, has original jurisdiction over possession of the property. At an eviction hearing, the judge determines which party has the superior right to possession and what damages (ie., back rent, attorney’s fees, and court costs), if any, will be awarded to the landlord. These are the only issues to be considered by the court. A counterclaim by the tenant, regardless of subject matter or merit, is not permitted. Legal actions by tenants may be brought by separate suit in Justice, County, or District Court.

Within 5 calendar days of judgment, the tenant can appeal to county court, with or without good reason, which results in the file being sent to the county courthouse where it will be heard as a new case. The Justice of the Peace will set an appeal bond, which may be waived if the tenant files an affidavit stating that he cannot afford the bond (also known as a “pauper’s oath” or “pauper’s bond”). Once an affidavit of this kind if filed, the landlord has the right to request a hearing and contest it, although it is generally pointless to do so – it is usually granted, and the file is turned over to the county court.

This appears unfair to the landlord; note, however, that if the pauper’s affidavit is granted, the tenant is then obliged to make monthly rental payments to the county court. Otherwise, if a cash or surety bond is posted, there is no requirement that the tenant pay rent while the appeal is pending. It is therefore good practice for the landlord’s attorney to file a motion requesting payment of rent into the court registry even if there is no pauper’s bond. A preferential setting should also be requested if the county court in question does not already automatically provide it for eviction cases. If the tenant is a professional deadbeat who has played this game before, the property can be tied up for several months.

If the tenant does not appeal within 5 days, the judgment of the Justice Court is final and the landlord may proceed to enforce the judgment by obtaining a writ of possession. This requires going to the county clerk’s office and paying a nominal fee. The constable will then usually post a notice on the tenant’s door allowing 48 hours to move out. After that, the constable may forcibly evict the tenant and put the tenant’s possessions in storage.

Foreclosures

Foreclosures may be judicial (ie., ordered by a court) or non-judicial (done without court involvement by auction “on the courthouse steps”).

The remedy of foreclosure is available to lenders if the borrower defaults. Defaults may be monetary or technical, ie., a breach of the covenants made by the borrower in the loan documents. In order to determine if there has been a “default,” the loan documents – the note, the deed of trust, the loan agreement, and so forth – must be carefully consulted. Specified notice and other requirements must be followed if the foreclosure is to be valid.

Non-judicial foreclosures are governed by Sec. 51.002 et seq. of the Texas Property Code. Foreclosures are conducted on the first Tuesday of each month between the hours of 10:00 a.m. and 4:00 p.m. at the courthouse of the county in which the property is located. Notices must specify a 3 hour period during which the sale will take place. At least two certified mail notices are usually required, a “Notice of Default and Intent to Accelerate” which affords an opportunity for the borrower to cure the default (at least 20 days for a homestead, although if the deed of trust is on the FNMA form, 30 days notice of default should be given); and a “Notice of Acceleration and Posting for Foreclosure” (at least 21 days before the sale date). “Acceleration” is defined as the declaration by the lender that the entire amount of an installment debt is now fully due and payable.

Both notices are addressed to the last known address of the borrower contained in the lender’s records, but it is wise for the lender to double-check this to avoid later claims by the borrower that notice was defective. It is prudent to send the notices by both first class and certified mail. The content of foreclosure notices is technical and must be correct to insure a valid foreclosure that cannot later be attacked by a wrongful foreclosure suit.

In all foreclosures, the lender should consider doing a title search to ascertain, among other things, if there is an IRS lien. If so, the IRS must be notified 25 days prior to the foreclosure sale if that lien is to be removed. Otherwise, the IRS lien will survive the foreclosure. Stewart Title Services and other title companies do these searches or “down dates” for a modest fee.

In order to determine a fair bid price for the property, the lender may wish to order a broker’s price opinion (BPO). Otherwise, the lender often bids the amount of the debt plus accrued fees and costs.

The effect of the foreclosure is to cut off and eliminate all junior liens, including mechanic’s liens.

If the price at which the property is sold a foreclosure is less than the unpaid balance on the loan, resulting in a deficiency, a suit may be brought by the lender to recover this deficiency any time within 2 years of the date of foreclosure. Federally insured lenders have 4 years. As part of a defense to a deficiency suit, the borrower may challenge the foreclosure sales price if it is below fair market value, and receive appropriate credit if it is not. Any money received by a lender from PMI (private mortgage insurance) is credited to the account of the borrower. One case states that the purpose of this “is to prevent mortgagees from recovering more than their due.”

Lenders generally bid the amount of the debt and often acquire the property in this way. If the sale generates proceeds in excess of the debt, the trustee must distribute the excess funds to other lienholders in order of seniority and the remaining balance, if any, to the borrower.

Compared to other states, Texas is fortunate to have a streamlined non-judicial foreclosure process that takes only a minimum of 41 days (although good lawyers never cut it that close). The advantage for the foreclosing party is that there are no effective defenses to this process except for the borrower to block it with a temporary restraining order or file bankruptcy. For either option, the buyer needs money and an attorney.

Suits for Wrongful Foreclosure

A suit for “wrongful foreclosure” can be filed if there are grounds for alleging that the loan documents (ie., the note and deed of trust) were defective in some way; if the notices leading up to the foreclosure were defective; or if there was some impropriety in the sale itself.

As a general rule, it is more effective to obtain a TRO to stop a foreclosure in the first place. Texas law favors the finality of foreclosures, making wrongful foreclosure suits an uphill battle. Note also that if the property was sold to a third party (ie., the lender did not acquire it) there is little chance that the borrower will get the property back. The borrower’s remedy will likely be limited to monetary damages.

If a wrongful foreclosure suit is being considered, it should be filed quickly so that notice of the suit (called a “notice of lis pendens”) can be filed in the real property records. If the lender was the successful bidder, this notice may result in effectively preventing the lender from transferring the property to a “bona fide purchaser” (a third party who does not have notice of the borrower’s claims). Again, once that transfer takes place, it is unlikely that the borrower will ever recover the property.

Post-Foreclosure Eviction

After the foreclosure is finished, it may still be necessary to evict the borrower in the usual way. If the borrower continues in possession, the owner must give the usual 3 day notice to vacate, file a forcible detainer petition in justice court, get it served, get it heard by the Justice of the Peace, and then wait 5 days for a final judgment and a writ of possession. The lender must then wait until the constable makes time to post a 48 hour notice on the door and then forcibly remove a borrower who is otherwise unwilling to leave. Elapsed time? Three to four weeks at best.

Right of Redemption

Finally, there is no right of redemption after a Texas foreclosure unless the property was sold for taxes (2 years for homestead, 6 months for non-homestead).

The recession has hit hard and, as a result, people are losing their homes. Stark hikes in the unemployment rate have meant, for many, taking jobs that pay much less than they are accustomed to. A lot of people are frightened and confused by the strife in the market.

As a result, much excitement has been generated by Short Sale Laws. These laws (implemented on a Federal and State level) allow the sale of a home at under the amount currently owed to the lender, after which the lender will forgive the amount left “short”. This is done in order to avoid foreclosure and bankruptcy, and is desirable to the lender as well as the homeowner, as it ensures at least a partial payoff, without the need for legal action to be taken.

Short selling provides many benefits to the market, keeping prices down by increasing competition, curbing bubbles and dramatic swings, raising and spreading capital (and hence increasing market liquidity), making hedging simpler, and even offsetting and limiting the effect of reckless speculation and manipulation.

In the world of securities, “short selling” consists of temporarily borrowing stocks and selling them at the current market price, then buying them back later, in anticipation of the stock price falling.

This sort of action has proven immensely popular, as is to be expected, and as a result the SEC has implemented stipulations and regulations in order to limit abuse of these short sale laws, and promote transparency and fairness in the market.

Brokers must purchase or borrow securities to deliver on a short sale, in a timely manner. Short sale data (tracking sale volume and other details) will be made available through the Self Regulatory Orginizations (SRO) websites.

Implemented in 2005, Regulation SHO requires that broker-dealers locate a source of borrowable shares prior to selling short. To wit: no trading of “fictional shares”.

Conversely, short selling in real estate refers to the (ostensibly) simpler process of the sale of real estate for less than the total amount due on its mortgage. If all parties are in agreement, this can be equitable for everyone. However, it carries its own risks and legal pitfalls. The Federal government passed a law in 2007 directing the IRS not to count forgiven mortgage debt as income. However, this is limited only to purchase money. It does not apply to re financing or second homes. So, unless the party who is short selling is selling their own home under its original mortgage, they may have to report the forgiven debt to the IRS as income.

Inexperienced agents may mistakenly inform their clients that all the debt of house is redressed once the main lender approves a short sale. But that may not necessarily be the case. Often, the lender will accept a partial payment and, instead of forgiving the balance, will sell balance to another collection agency at a loss. Thus, it is important to address the issue of the remaining balance at the time the deal is struck.

It is beyond the scope of this article to list all state and local short sale laws, so it is suggested that anyone interested in pursuing a short sale look up their local laws as well as further researching the federal regulations. This article should serve only as a broad introduction.

Using your sense of spirituality can help you solve your foreclosure. Spirituality can help you solve many of life’s problems by tapping into your inherent ability to connect with the cosmic universe to receive the answers that you are seeking. With rising prices, our currently bad economic crisis and rising unemployment rates, many find themselves facing financial problems; including the epidemic of foreclosures in the United States.

If you are reading this article you have been lead here spiritually in order that you may tap into the universal consciousness to receive the answers and options that you are seeking that will solve this problem. This foreclosure strategy is your “GIFT FROM GOD”, will you accept it?

Spirituality entails having faith in receiving the answers that you seek. However, it is up to you to recognize when the answers are being revealed to you. You must cultivate a sense of knowing that what you need is already given to you.

Spirituality is about knowing that you are already blessed and that you will be taken care of and given what you need to succeed in any endeavor. This article will reveal options to you that you can use to stop your foreclosure dead in its tracks. This little-known option is available to you and will help you solve your foreclosure dilemma immediately.

By implementing this foreclosure strategy which is in full compliance with all state and federal laws, you will force the bank to prove that they are the rightful owner of your mortgage loan, which will usually take several months to many years. You could, in fact, end up owning the property free and clear. However, you must take a stand and decide to fight back.

As you know many of the banks and financial institutions have recently been accused of using faulty documentation and/or illegal tactics. Certain banks and financial institutions have even had to halt foreclosing on homes altogether for a time.

You can now take advantage of this legal loophole. Instead of being taken advantage of by money hungry banking and financial institutions you can now take advantage of the legal loopholes that will catapult a stop to your foreclosure fast.

I am not going to go into the mechanics of the program here because it is well documented elsewhere. However, I am writing this for those who are my subscribers and for those who may be currently facing foreclosure and who have been spiritually looking, hoping and searching for a way out of this foreclosure snare.

I personally recommend this source and I am personally aware that this foreclosure defense has held off the bank or financial institution from foreclosing on a property located in Las Vegas, Nevada for over 4 years. When implemented correctly and with patience and care, using this legal strategy also keeps your credit intact in case you are planning to purchase another home now or in the near future.

I am further personally aware of a situation in Florida where this legal maneuver was used and the property was actually given back to the homeowner free and clear. This is a spiritual gift that I am offering my readers and subscribers — so take advantage of it because it is available to you to help you save your property.

One of my favorite passages from the Bible is Matthew 6:25.26,27,28,29,30, 31,32,33 which states, ‘Therefore I say unto you, Take no thought for your life, what ye shall eat, or what ye shall drink; nor yet for your body, what ye shall put on. Is not the life more than meat, and the body than raiment?

Behold the fowls of the air: for they sow not, neither do they reap, nor gather into barns; yet your heavenly Father feedeth them. Are ye not much better than they? Which of you by taking thought can add one cubit unto his stature?

And why take ye thought for raiment? Consider the lilies of the field, how they grow; they toil not, neither do they spin: And yet I say unto you, That even Solomon in all his glory was not arrayed like one of these.

Wherefore, if God so clothe the grass of the field, which today is, and tomorrow is cast into the oven, shall he not much more clothe you, O ye of little faith? Therefore take no thought, saying, What shall we eat? or, What shall we drink? or, Wherewithal shall we be clothed?

(For after all these things do the Gentiles seek:) for your heavenly Father knoweth that ye have need of all these things. But seek ye first the kingdom of God, and his righteousness; and all these things shall be added unto you.’

If you have found yourself contemplating a way out of your foreclosure dilemma and have been visualizing that your foreclosure situation has been resolved — then you must take a look at the program that I am introducing to you. Go now and check it out and you can come back and thank me later!

For many families in America, continuing to pay for a mortgage on their home may become compromised or difficult due to many external factors. The economy, divorce, and job loss are some of the reasons why many homes have been foreclosed as the homeowners could no longer afford their homes, especially when they are paying more for their home than it is worth. You may look intoshort sale services if you would like to forego the risk of a foreclosure. With a foreclosure, you risk your credit that will continue to affect you for many years to come. With a short sale, the bank settles for a smaller amount and in turn you are able to forego foreclosure. It is important to consult a short sale expert if you are considering to short sell your home. Your short sale expert will be able to take care of the buyers, banks, and do all the negotiating for you.

Manyshort sale California homes have been successfully sold with the help of a short sale expert. With a short sale expert it will also be easier to list your home for short sale as well as find a buyer. A short sale expert may also help you list your home for short sale with a bank. Wells Fargo Short Sale listings are also available among other banks that may agree to short sales. A short sale expert may help you negotiate with your bank as the process for the bank agreeing to a short sale home is a process and does take some time. If you feel you are paying more for your home than it is worth or can no longer afford your home it is recommended to contact a short sale expert for more information and to receive recommendations.

Most of the people throughout California are now scared of losing their real estate property because of foreclosure. Do you feel a great deal of burden in you put by your lender? If yes then it is the right to deal with the problem before you start losing your property in California. There are many different foreclosure lawyers in California who can help you handle the problem in the best way. Foreclosure is one of the most awful situations for any person to handle. Hence one should be mentally prepared to take the right steps.

As foreclosure occurs most commonly throughout the globe there are number of foreclosure defence attorney who can deal with this kind of situation. One can consider loan modification attorney from California who can provide the best legal advice for all the needs and requirements of the clients.

You can now have a fresh start financially with the help of www.savingcalifornaiahomes.com where one will receive goof legal advice on how to avoid foreclosure. Some of the services that are offered are legal strategy, loan modification and legal action. They may provide you with the best possible solution to save your home in California.

Loan modification lawyer can be of a great benefit to you. A loan modification attorney California can help you get a modification in the loan more quickly and faster that can help you save money. The loan modification attorneys have good knowledge and experience about the legal requirements. Hence they may help you get the best deal after a good negotiation for the benefit of the borrower. Generally the loan modification attorney takes a systemic approach legally that may help thousands of people to save their homes in California. The attorneys also have a team that can make the whole legal process smoother. The experienced people will reduce the burden of the borrower by providing the best solution. A great loan modification with the help of the attorneys in California can help you save a great deal of money. By choosing the best loan modification attorney in California one can be assured to save the house from foreclosure as they have great skills and knowledge.