If you are facing foreclosure, you are likely overwhelmed and scared. Whether you are already in foreclosure or are having a difficult time making mortgage payments, DeNiro Law can help. Ms. DeNiro guides clients through the process and keeps them informed every step of the way.
In simple terms, when a homeowner stops making full and timely mortgage payments for a prolonged period of time, foreclosure occurs. But the process, laws and homeowner rights are more complex than the bank may tell you.
Most homeowners seek a lender to be able to buy their home. Financing the purchase of real estate through a lender and loan requires legal documents such as a promissory note and a mortgage, also called a deed of trust. The promissory note serves as the homeowner's assurance to repay the amount borrowed. When the loan moves between banks, such as one bank selling it to another, the promissory note is signed over to the new owner of the loan. This is called endorsement. So the promissory note always stays with the loan.
The mortgage serves as security for the property for the borrowed/loan amount. The borrowed amount then becomes debt and a lien is placed on the real estate, which is then recorded in the land records. When the loan transfers to another owner the mortgage must also transfer and be recorded. This is referred to as an assignment.
Who is affected in foreclosure?
The same parties who are involved in the purchasing of a home are often involved in foreclosure. The homeowner is the borrower. The bank that issues or owns the loan is the lender. An investor may be involved if the lender sold the loan. And the servicer is the company or bank that you make your mortgage payments to. The servicer is likely to start the foreclosure process when the borrower defaults on his or her mortgage payment.
What constitutes foreclosure?
You fell behind in your mortgage payments – now what? Foreclosure is the legal procedure of a lender or investor forcing the sale of a property so that he can be repaid for the debt. The entity initiating the foreclosure is the foreclosing party. The foreclosing party starts the process and you the homeowner are mailed a foreclosure notice. This notice states that foreclosure proceedings will start if mortgage payments aren't fully caught up. You usually have 30 days to comply and pay all past dues.
Foreclosures are mostly judicial in New Mexico, meaning that the lender must go through the state court system. So when the foreclosure notice is not complied with or ignored, the foreclosing party files a complaint and serves it to the homeowner. You have 30 days to respond and the real estate sale cannot occur in that time. The foreclosing party is required to publish notice of sale four weeks before the sale (in a newspaper and public places in the county). For nonjudicial foreclosures, the foreclosing party is required to record notice of sale 90 days before the sale.
What are your rights as a homeowner facing foreclosure?
In New Mexico, you the homeowner, will usually have nine months to redeem your home after foreclosure. The details of this can change depending on the mortgage terms, however you will not have less than 30 days. If you do not buy back the home, you may face eviction by the new owner (lender) to move out of the home. Eviction notices and terms vary greatly and are negotiable. If the price of the foreclosure sale was less than the mortgage debt, you may also face deficiency judgement or taxes.
Homeowners have rights and possible defenses to foreclosure, particularly if the homeowner is a service member, so it's critical to seek professional help. Our foreclosure services include representation for homeowners facing foreclosure litigation, as well as assisting with loan modifications, settlements, and other loss mitigation. While it can be an emotional and consuming process, it's our goal to get clients through quickly with as little impact as possible.