Foreclosure is a harsh legal process and, when you are threatened with foreclosure, you should immediately try to obtain legal help. Foreclosure can move very quickly. One advantage of exercising your legal rights is that you can slow down the process. In the short term, delay can be helpful because it will give you more time to put into place a long-term solution to the problem. You cannot properly delay foreclosure just because you need more time. The actions you take must be based on some underlying legal claim or defense which is raised in good faith.
Procedural Defenses May Delay the Process. Lenders are sloppy in their procedures and sometimes do not comply with pre-foreclosure requirements. Lender errors can be to your benefit when you are contesting foreclosure, forcing the lender to start over, or, at the very least, forcing the lender to comply with procedural requirements. This will provide you with additional time to refinance, sell privately, or arrange a workout agreement.
- Examples of possible defenses include failure to give you the proper notice, failure to give you a fair chance to correct the default, failure to properly advertise the sale, failure to introduce the original documents in the foreclosure proceedings, failure to sue all the proper parties, failure to bring the foreclosure proceeding in the name of the real mortgage holder, or discouraging bids at the foreclosure sale.
A Chapter 7 Bankruptcy May Create a Temporary Delay. Filing a chapter 7 bankruptcy case will delay a foreclosure because the automatic stay in the bankruptcy case will temporarily prevent the foreclosure process from continuing. The lender cannot continue foreclosure without permission of the court (this usually takes at least sixty days) or until the case is over.
Filing a Chapter 13 Bankruptcy Stops a Foreclosure Permanently. A chapter 13 bankruptcy allows you to cure a default or pay off a mortgage in installment payments over time rather than having to come up with a lump sum. The “automatic stay” is the primary reason bankruptcy is such a powerful method of dealing with foreclosure. The filing of your petition in bankruptcy automatically stops most creditor actions against you and your property, including foreclosure, foreclosure sales, and the filing of liens against your property.
- Chapter 13 provides a means to force lenders to accept deferred payments sufficient to cure the delinquency over 36 to 60 months.
- The effect of a successful cure through a completed chapter 13 plan is to restore the homeowner to the same position as if the default had never occurred.
Pennsylvania law protects homeowners by providing a statutory right to cure a defaulted mortgage through Act 6 and Act 91. Pennsylvania law allows homeowners to reinstate a mortgage that has defaulted up until one hour before a sheriff’s sale.
Act 6 only applies to “owners of relatively modest homes” as the current jurisdictional limit for Act 6 is $221,540.
- Act 6 requires mortgage lenders in Pennsylvania to give written notice of its intention to foreclose at least thirty (30) days before it can bring a foreclosure.
- The notice of intention to foreclose must be sent by registered or certified mail to the homeowners last known address.
- The failure to give the homeowner proper Act 6 notice has been held to be a justifiable basis to set aside a sheriff sale. In re: Sharp, 14 B.R. 817 (Bkrtcy. E.D. Pa. 1982). In Sharp, the lender’s failure to give a proper Act 6 notice led to bankruptcy court to set aside the sheriff sale and to order a reconveyance of property to the debtor/homeowner.
- Act 6 also imposes limitations on the amount that can be demanded from a homeowner attempting to tender a cure, particularly through limitations which they establish on the type and amount of fees and charges that can be demanded in addition to the delinquent monthly payments.
- Act 6 prohibits the lender from adding attorney’s fees during the 30-day cure period specified in the notice.
Act 91 created the Homeowner’s Emergency Mortgage Assistance Program (“HEMAP”) which offers financial assistance to homeowners whose loans are in default because of circumstances beyond their control, and who have a reasonable prospect of resuming full mortgage payments in the ensuing 24 to 36 months. For homeowners who qualify, the Pennsylvania Housing Finance Agency (PHFA) pays the arrearage on the mortgage and can provide ongoing, future assistance with the mortgage payments for up two years, and, in times of high unemployment, three years. The assistance is in the form of a loan to the homeowner, secured by a lien on the home.
- No residential foreclosure proceeding can be begin in Pennsylvania unless the homeowner is provided notice of the right to apply for HEMAP assistance, and, if a timely application is submitted, unless PFHA denies the application.
- Act 91 does not have a jurisdictional amount and applies to all real property located within the Commonwealth of Pennsylvania.
- Act 91 requires that the lender provide the homeowner with an itemized breakdown of the reinstatement amount.
- HEMAP applications are submitted to PHFA by PHFA-approved housing counseling agencies whose addresses and telephone numbers are listed on the Act 91 notice. The homeowner has 33 days from the date of postmark of the Act 91 notice, to arrange and attend a “face-to-face meeting” with a housing counselor.
- The foreclosure action is “stayed” or “frozen” while PHFA is processing a homeowner’s HEMAP application.
In recent years, many mortgage loans have been written with hidden traps that spring on the consumer several years later. Your monthly payment will explode two or three years later into the mortgage, whether or not general interest rates go up. The lender offered you a “teaser” rate that is guaranteed to go up after two or three years, causing your mortgage payments to “explode” at that point. Your mortgage may have given you an option to pick a lower payment for a time, but when the option period ends, a much higher payment is then required.
It is essential that you determine as soon as possible whether your mortgage loan contains this feature. You will have more options and more time to investigate those options if you act promptly. Many of these exploding mortgages were refinancings of existing mortgages or second mortgages for home improvements or similar expenses.
If you took out a mortgage loan within the last five years, you should check what happens to your monthly payments in the future. Ask the servicer or lender. You may be among the millions whose monthly mortgage payments are about to skyrocket. You have options if you act now.
If you do have an “exploding” adjustable rate mortgage loan, immediately explore the following options:
- Ask your lender to modify your mortgage so that monthly mortgage payments can be lowered. You may be eligible for a mortgage modification under one of the government supported programs, such as the Home Affordable Modification Program, or “HAMP.” In most cases you will need to apply for a HAMP or similar modification by contacting your servicer.
- Ask your lender to freeze your existing interest rate so that monthly mortgage payments stay at the same amount. It is possible that your lender has a program to eliminate or postpone the interest rate jump, at least for certain qualifying borrowers.
- Try to refinance with another lender. If you find another lender to refinance your present mortgage, you may have to pay more now than under your present “teaser rate,” but you will save lots of money later on. It is more important to establish a mortgage payment plan you can afford in the long run than save a few dollars now, only to lose your home in a few years.
- Ask a lawyer to look over your mortgage and the facts that led to your getting into the exploding adjustable rate mortgage. If a loan broker defrauded you or if there are law violations in the loan, these may provide you with viable legal claims to help you recover damages, cancel the loan, or work out a beneficial settlement that lowers your mortgage payments in the future.
The bill collector is a school yard bully and is counting on you to give up; collectors often drop lawsuits if you put up a fight. Most people do not respond to collectors lawsuits – filed by the thousand – so the debt buyer wins by default. You can win the lawsuit if you respond to a collection lawsuit properly.
How To Respond To A Collector’s Lawsuit.
1. Always Pick Up Your Certified Mail and Accept Notices About Court Actions. You will not escape the consequences of a lawsuit by hiding from notice about that action. Never hide from a court summons; always read it carefully, follow the instructions, meet all deadlines, and attend all hearings.
2. Hire a (NACA) Debt Collection Defense Attorney. Fighting back and raising legitimate defenses and claims against a collector can erase some or all of the debt. In most cases, a lawyer can take steps that will significantly improve the outcome for you.
Common Defenses to Raise.
1. The collector has not proved it owns the debt. Many collection cases are not brought by the company you first owed the debt (such as a credit card issuer), but by someone who has allegedly bought the debt, called a debt buyer. The debt buyer has the burden of proof to prove it owns the debt and you should insist on that proof. Amazingly, debt buyers will often not have that proof. They often bought the debt from another debt buyer and cannot produce evidence of a chain of ownership of your account leading from the original creditor to them. They may produce a document indicating that the debt buyer bought thousands of accounts, and which states that the list of those accounts, including yours, is on a computer tape. But this is meaningless until the collector actually produces the computer tape and shows that your account is one of the accounts that was sold to it.
2. The collector has not presented your credit contract in court. Often the collector is claiming that the credit contract you entered into allows them to recover the debt plus interest, late charges, and attorney fees. Make sure the collector produces in court the contract you agreed to, and not some standard form agreement with no evidence that it was the one you entered into with the creditor. Otherwise, the collector may not be able to collect attorney fees and may even lose the right to recover on the debt.
3. The debt is too old to be collected. Some debts are so old that they cannot be collected in court. This does not stop some collectors from suing on these debts, hoping you will not contest this. Pennsylvania has a four year statute of limitations but collectors often sue on debt that is ten, even fifteen years old.
4. Someone else incurred the debt or you are only an authorized user of a credit card. You are only liable for your debts and not for someone else’s. This means that you are not liable if someone forged your name or used your credit card without your authority (under federal law, you may be liable only up to $50.)
5. You have already paid, settled, or discharged the debt in bankruptcy. Virtually all debts are eliminated by a bankruptcy filing and this is a defense to the lawsuit. Also a defense is if you have already paid the debt or paid more than the collector claims.
A report by the Federal Trade Commission, completed in December, found that 21% of of American consumers discovered a “confirmed material error” in at least one of the credit reports issued by the Big Three credit reporting bureaus — Experian, Equifax and TransUnion. The agencies track the credit histories of over 200 million Americans. If the FTC’s findings are accurate, that means some 40 million Americans have a mistake on one of their credit reports, and 10 million are potentially overpaying as a result.
A recent investigation on 60 Minutes by Steve Kroft confirms the 40 Million Mistakes.
Order Your Free Report. The first step in learning about your credit report is to order copies from the three main credit bureaus and read these reports carefully. This will allow you to see if the bad information you think is listed in the report is really there. You may want to order your free credit report by phone or mail, and not on-line. If your order by phone or mail, you will receive a paper credit report that has more information and is easier to read than the electronic version. Also, if you order your credit report on-line, there may be risk that you might waive your right to take the credit bureaus to court.
Free Annual Credit Reports. You can get your free credit reports from the centralized request service by:
- Going to www.annualcreditreport.com;
- Calling 1-877-322-8228; or
- Completing the Annual Credit Request Form and mailing it to: Annual Credit Report Request Service at P.O. Box 105281, Atlanta, GA 30348-5281
You can download the form at www.ftc.gov/credit. You can download all three reports at no cost when you go to the centralized service or just one at a time if you prefer.
Fair Credit Reporting Act (FCRA). The Fair Credit Reporting Act (FCRA) was established to promote the accuracy and privacy of the information collected and distributed by credit reporting agencies. The Fair Credit Reporting Act provides consumers with a number of rights and gives consumers an avenue for relief once errors are detected in credit information. Some of your rights under the FCRA include:
- Right to view your credit report
- Right to know if your information was used against you (in denial for a loan, for example)
- Right to dispute inaccurate or incomplete information
- Right to have inaccurate information corrected
- Right to pursue damages against violators of the FCRA
Get Credit Reporting Errors Fixed. Don’t let mistakes on your credit report cause further financial problems. I will assert your rights under the Fair Credit Reporting Act. I am a consumer rights attorney and participating member of the National Association of Consumer Advocates (NACA), a nationwide membership organization of consumer protection attorneys who represent and have represented thousands of consumers victimized by fraudulent, abusive, and predatory business practices.
Stephen M. Dunne has devoted his professional career to fighting for the rights of consumers. Mr. Dunne is a consumer lawyer admitted in the State and Federal courts of Pennsylvania, and in numerous courts including the Third Circuit Court of Appeals and the Federal Circuit Court of Appeal for Veterans Claims. He has successfully briefed and argued cases in the federal appellate courts resulting in favorable decisions for his clients.
His practice is limited to the representation of consumers in financial transactions under the various state and federal consumer protection laws. He graduated from Pennsylvania State University, with a B.S. in Crime, Law and Justice in 2000, and earned his Juris Doctor Degree from New England Law in 2005.
Mr. Dunne concentrates his practice on the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), the Pennsylvania Fair Credit Extension Uniformity Act, Truth in Lending (TILA), Lemon Law, breach of warranty, and consumer fraud cases, as well as, representing consumers in debt defense cases, bankruptcy and foreclosures.
Mr. Dunne is an active member of the National Association of Consumer Advocates (NACA), and the National Association of Consumer Bankruptcy Attorneys (NACBA) and the Philadelphia Bar Association (PBA).
Mr. Dunne is highly regarded throughout the legal community for his continuing efforts in helping consumers solve their financial issues. He frequently appears in local and national media discussing consumer rights issues. Mr. Dunne has appeared on Fox News, written articles for the Philadelphia Inquirer, Philadelphia Daily News and the Nation.
Mr. Dunne has been consistently voted and named one of Pennsylvania’s Super Lawyers byLaw and Politics published by Philadelphia Magazine and Pennsylvania Super Lawyer for the years 2012-2013.
1. Correct any errors on your report. It is common to find that there is incorrect information in your credit file. You have the legal right to correct this information and should do so. Accurate damaging information is bad enough. You do not also need inaccurate damaging entries. You should send a written dispute to each credit bureau that has reported incorrect information. The credit bureau by law must investigate the entry and correct the mistakes. In most circumstances, the agency is required to get back to you with the results of the investigation within thirty days.
2. Clean up your file with the help of the creditor. Provide the creditor with whatever proof you have and try to persuade the creditor that its information is inaccurate.If a creditor does agree to delete information, it can contact the credit bureau to request its deletion. Second best, the creditor can agree not to verify its original information if asked by the credit bureau. Then, when you dispute the item, the information will not be verified on reinvestigation, and it will have to be deleted. Be sure that any agreement with the creditor to remove historical information is clear and in writing. Otherwise, creditors may not actually follow through in deleting the information.
3. Use your federal rights to remove student loan defaults. If one of the more troubling delinquencies on your credit record is a student loan default, there are certain steps you can take to remove the default notation on your credit report. Contact the loan holder and state that you want to renew your eligibility for a new loan and want a reasonable and affordable repayment plan. You have a legal right to a reasonable and affordable payment plan for this purpose. Make sure you say words similar to “I want a reasonable and affordable payment plan so that I can renew my eligibility for new loans.” These are the magic words collectors usually like to hear before they will offer you the plan. After making nine required payments and requesting rehabilitation of your FFEL loan, the loan holder must attempt to sell your defaulted loan to a lender. If your loan is purchased, you are no longer in default, the default is removed from your credit record, and a new repayment schedule is established. The main benefit of loan rehabilitation is that if you successfully complete the process, the default notation on your credit report should be erased.
4. Clean up public record information. The most damaging information on your credit record is sometimes found from public records, such as arrest, judgments, foreclosures, tax takings, and liens. The best way to remove this information from your file is to do so at the source with the government agency supplying this information to the credit bureau, and then make sure the corrected information is updated in the credit bureau’s files.
5. Delete old information. Most bad information must be removed from your report after a certain number of years, as follows:
- Accounts sent for collection or charged off may be reported from the date of last activity on the account for up to seven years. The date of last activity is no later than 180 days from the delinquency itself. The seven-year clock does not start ticking again if the account is sold to another collection agency. However, some collection agencies will purposefully change the date of last activity to make the debt look less old, a practice called “re-aging.” If you suspect re-aging, send a dispute the credit bureau as well as the collection agency.
- Lawsuits and judgments may be reported from the date of the entry of the judgment for up to seven years or when the judgment expires.
- Paid tax liens from the date of the last activity for up to seven years.
- Most criminal records such as information about indictments or arrests may be reported for seven years.
6. Send a dispute letter to all three credit bureaus.
- Transunion LLC, Consumer Disclosure Center at P.O. Box 2000, Chester, PA 19022-2000
- Equifax Information Services, Complaint Department at P.O. Box 740256 Atlanta, GA 30374
- Experian, NCAC at 701 Experian Parkway Allen, TX 75013
Someone may have stolen your credit card or Social Security number and used it to obtain credit, destroying your credit history in the process. You may not even know you are a victim of identity theft until you try to get new credit or apply for a loan and are unexpectedly rejected. Identity theft is often discovered many months after the crime has occurred.
Prevention is one of the most effective ways to avoid becoming a victim. Below are some tips on how to avoid identity theft:
- Place a “security freeze” on your credit history. A security freeze prevents your credit history from being shared with potential creditors. If you credit files are frozen, a thief will probably not be able to get credit in your name. A security freeze generally cost $10 to place with each credit bureau, for a total of $30.
- Do not carry your Social Security card with you. Keep it in a safe place at home or in a safety deposit box.
- Do not attach or write a personal identification number (PIN) or Social Security number on any card that you carry with you or anything you are going to throw away (such as an invoice or receipt).
- Shred any document that contains your credit card or Social Security number before throwing it away.
- Alert your credit card lender if you do not receive your statements. Someone may be stealing your mail.
- Frequently check your credit report online at www.annualcreditreport.com to look for warning signs of suspicious activity.
What to Do If You Are a Victim of Identity Theft.
According to the Federal Trade Commission, the first four steps you should take if you believe you are the victim of identify theft are:
1. Contact the fraud department of a major credit bureau to place a fraud alert on your credit report.
As soon as you make this initial report to a credit bureau and the bureau confirms your report, the other major credit bureaus will automatically be notified to place fraud alerts on your report as well. You should then automatically receive free copies of all three of your credit reports.
The initial fraud alert lasts only 90 days. In order to get an extended alert, you will have to provide additional information, including an identity theft report. This is a copy of an official report filed with an appropriate federal, state, or local law enforcement agency.
2. Contact your creditors to find out about any accounts that have been tampered with or opened fraudulently.
This includes credit card companies, phone companies, utilities, and others with whom you do business. Ask to speak with someone in the security or fraud department and follow up with a letter. You should immediately close any accounts that have been tampered with and open new ones with new PINS.
3. File a report with your local police or the police in the community where the identity theft took place.
You will need this report in order to get an extended fraud alert in your credit file and to take advantage of some of the other identity theft protections. Unfortunately, some police departments will make it very difficult for you to file a report. If you have trouble with a police department, you should keep trying and be persistent. Be sure to give them as much documentation as possible to prove your case. If you can’t get anywhere with the local police, try the state police, or the U.S. Postal Inspection Service if the mail was involved.
4. File a complaint with the Federal Trade Commission.
The FTC has a special Identity Theft Hotline (1-877-IDTHEFT), or you can file a complaint on-line at www.consumer.gov/idtheft.
Our services are 100% FREE.
- We stop debt collectors phone calls and threats.
We make lawbreakers pay. Abusive collectors are liable for up to $1,000 in damages, plus court costs and attorney fees.
- If you have ever been behind in paying your bills, you know that you’re guaranteed to hear from a debt collector. A debt collector is someone, other than the creditor, who regularly collects debts owed to someone else. Lawyers who collect debts are considered to be debt collectors, too. And debt collectors are abusive. They violate the law, but you can fight back!
Debt collection harassment is illegal and you can be compensated for any injury suffered. The following debt collection activities are illegal:
- Threatening lawsuits, garnishment, liens, or arrest for not paying a bill
- Calling your family, friends, neighbors or employers to collect a debt
- Leaving abusive phone messages
- Insulting, yelling or swearing at you
- Calling your workplace after telling the collector not to call you there
If you have suffered from any of these abusive bill collection practices, you may be entitled to compensation. We can help any consumer who is currently in collections, or has suffered from collection harassment. Call us today at (215) 854-6342 to speak with an attorney and get a free phone consultation on your case.
The federal Fair Debt Collection Practices Act (known as the “FDCPA”) is a consumer protection statute and was intended to permit, even encourage consumer law firms like Dunne Law Offices, P.C. to act as private attorney generals to pursue FDCPA claims.
If you suffered financial, physical, or even emotional harm from the illegal collection harassment, you might consider suing the collector. In a successful debt collection suit, you can recover all your damages, no matter how large they are. Even if you are not damaged by the illegal collection activity, you can also sue the collector for up to $1,000 plus all of your attorney fees.
On top of the $1,000, you can recover for any injuries that were caused by the illegal conduct. Courts may award damages for emotional injuries as loss of happiness, loss of energy, loss of sleep, tension headaches, crying spells and marital problems.
Where the collector’s conduct is seriously improper, you may also be able to recover punitive damages on top of your actual damages. Examples of such conduct are threats to throw you in jail, to deport you, or have your children taken away. The punitive damages are intended to punish the collector and prevent future misconduct.
Debt Collector: (Did any of these debt collectors harass you at work or home?)
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Call us today at (215) 854-6342 to speak with an attorney and get a free phone consultation on your case.