Yes. Getting the court to agree to mediate your case does not always mean that the bank will modify your mortgage note. Even if court approves your request to mediate, the bank will still want to verify through financial documents that you can afford your loan.
There are Federal programs which may assist a homeowner to qualify for a loan modification. For example, there is the HAMP program, or Obama Plan, where the bank will try to lower ones mortgage payments to 31% of his gross income. However, a person may still not qualify under this if his total debt to income ratio is beyond 55%. There is also a new program called “Hardest Hit” whereby an individual hardest hit by this economy may qualify for government subsidization of his mortgage payment; however as of the writing of this pamphlet, the terms for qualification of the program have not yet been determined.
If a person’s income is high enough that he does not qualify for one of the above Federal Programs, he may still qualify for an “in house (bank)” modification; however the bank may still deny the loan modification if the payoff of the home far exceeds the appraised value.
If the bank does not approve your loan modification, your case will go back onto the Court’s foreclosure docket and your home may be sold at a sheriff sale. If you cannot keep your home should still consider doing a short sale or deed in lieu to try to avoid liability on the note. Because of the various obstacles involved with mortgage modification, it is important to seek the advice of an attorney with strong experience in these matters.
Summary
When determining if a homeowner qualifies for a loan modification, there are various questions and issues that arise, namely, first, whether a person qualifies under a Federal program; if a person does not because his income is too high, then he may qualify for an “in house” modification; but the bank may still deny the modification if the payoff of the home is well above its appraised value.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
Many times when a person files a Bankruptcy, the bank will send him or his attorney a document called a “reaffirmation agreement.” With this, the bank is asking him to reaffirm the mortgage debt if he wants keep his home. Many times the reaffirmation agreement will include better mortgage terms than the original note—this is done by the bank to induce your agreement.
Under the law, when one is in a bankruptcy, he is not required to reaffirm this debt or any other, but it is another option for him to keep his home. One should file the signed reaffirmation agreement with the court prior to the discharge, or within 60 days after the 341 creditor’s meeting. If one reaffirm’s his mortgage note and then goes into default because he cannot afford to make the payments, he will be liable for the note even though he had filed a Chapter 7 Bankruptcy.
There are instances when mediation is better for a homeowner than signing a reaffirmation with the bank (see below, for discussion on mediation). For example, sometimes a person can discharge his mortgage note in a bankruptcy and then continue on to mediate the terms of his monthly payment, even though he may not liable for the note if he defaults; whereas, if a person signs a reaffirmation agreement, he will still be liable for the mortgage note if he later defaults.
Summary
When a homeowner is in bankruptcy, he may sign a reaffirmation agreement; many times, the terms in the reaffirmation agreement will be better than the original note. There are instances when it is better for a homeowner to mediate his mortgage terms in court than to sign a reaffirmation with the bank in bankruptcy.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
Generally, yes you may if your loan is modified in mediation; but you should consult an attorney about your particular situation. In many instances the bank will approve a loan modification even though you have already discharged your debts, including your mortgage note, in a bankruptcy; however, as will be discussed next, you will nevertheless be liable for that note if you sign a reaffirmation agreement with the bank during your Chapter 7 Bankruptcy.
Summary
While a homeowner generally can proceed to mediation after discharging the mortgage note in a Chapter 7 bankruptcy, there are exceptions to this rule, and one should consult with a bankruptcy attorney.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
Yes. The Court may approve your request to mediate even though a sheriff sale has been set. While the mediation will not stop the sale, that sale will not be approved or “confirmed” by the Court. The Court will first wait to see what the outcome is of the mediation; ie., whether a deal can be worked out with the bank.
Nevertheless, you should still check the court’s docket periodically because at times the court can make a mistake and still confirm the sale. This has happened to me on occasion and I have had to file motions to vacate the sale in emergency hearings.
Summary
While mediation will stop the foreclosure process, it will not stop a sheriff sale; that sale goes forward as scheduled, but the court will generally not confirm the sale and will wait to see the outcome of the mediation.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
Yes, you can file a bankruptcy and then afterwards try to mediate your mortgage note.
When you file a Bankruptcy, all of your creditors must stop all collection activities, including the bank. This means that if there is a foreclosure against you that must stop, and your lawyer should tell the court about it. The bank will need permission from the bankruptcy court to foreclose on your home.
After the bank receives that permission and files a complaint, you can then request mediation from the court. However, getting the Court to approve your request to mediate is only the first step; after that you must now get the bank to agree to modify your mortgage note.
Summary
The bank must ask the Bankruptcy Court for permission to file a foreclosure complaint against you. After you have been served with a complaint, you can then request the court to mediate.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
Before looking at a Chapter 13 bankruptcy, I first see if my Client can qualify for mediation. This is a court established program in Ohio where the homeowner requests the bank to modify his mortgage note. One can apply to the court to mediate only after the bank has filed a foreclosure complaint to take back his home. From my experience, it is easier to get the bank to modify your note—with more favorable terms- in court established mediation then to go directly with the bank outside of mediation.
Summary
The upside to a foreclosure action is that you may request the bank to modify your mortgage loan in mediation.
If the bank modifies your mortgage note, it will likely put all of your arrearage at the back end of the note. This is known as capitalizing your arrearage. The bank may also lower your interest rate. The bank may also extend the terms of your note, extending it out over more years, thereby making your payments lower.
Summary
While a Chapter 13 is good for saving ones home, a court established mediation is generally better. If a homeowner wants to save his home, he may be able to modify in note in a mediation.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
There are two kinds of consumer Bankruptcies, Chapter 7 and Chapter 13s.
Chapter 7s deal primarily with discharging or wiping out ones unsecured debts. These are debts where the creditor does not have any collateral, such as house or a car. Unsecured debts include credit cards, medical bill and most private judgments, to name a few. A Chapter 7 though will not help you to save your home if you are behind in your payments.
Chapter 13s, on the other hand, will help you if you are in foreclosure. With these bankruptcies, your arrearage is paid off over a period of 3 to 5 years. Also, in Chapter 13s, you do not eliminate your unsecured debts at one time, like with Chapter 7s, but pay them off over time, sometimes pennies on the dollar.
Summary
Chapter 7s generally deal primarily with wiping out unsecured debts while Chapter 13s deal with saving your home or car if you are behind in your payments.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
I read an interesting article called “Filing Bankruptcy: 9% Rise in Personal Bankruptcy Filings with Chapter 7 More Popular than Chapter 13”, which discusses the rising interest of Chapter 7 over Chapter 13 bankruptcies.
In the article, the author correctly states that the Bankruptcy Law was amended in 2005 to make it more difficult for some people to file Chapter 7s and to steer these people instead into Chapter 13s. Generally, Chapter 7 involves the discharge or wiping out of ones unsecured debts (credit cards, medical bills, etc.), while Chapter 13 involves paying off ones debts over time.
The new law was intended to prevent some Chapter 7s in cases where the debtors have higher incomes, because presumably they could afford to pay off some of their debts. The author of the article comments that in fact the opposite has happened: Despite the new law, more people have filed Chapter 7s since 2005 due to the significant housing slump and deep recession and fewer have filed Chapter 13s then expected.
Historically, Chapter 13s have been used to save ones home from foreclosure because through it one could pay off his arrearage over 3-5 years. In my opinion, a reason for the decrease in Chapter 13s in Ohio is due in part to the implementation of the mediation program in foreclosures. Mediation permits an individual to get out of foreclosure by negotiating in court directly with the bank without the need for a Chapter 13. I would refer the reader to the 10 questions and answers where I discuss the strategic use of mediation to defend oneself in a foreclosure. In Ohio, Chapter 13s will continue to take a back seat in foreclosure defense while foreclosure mediation I believe will become increasingly popular.
Attorney Eli Tamkin is a Cleveland bankruptcy lawyer. He has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
In this video, Andy Morris, a real estate broker with MortgageRx.org, interviews Eli Tamkin, Esq. about mediation in Cuyahoga County in a foreclosure action. Work with a foreclosure defense attorney who has experience negotiating with banks in mediation.
Attorney Eli Tamkin has been practicing law since 1989 and in Cleveland Ohio since 1994. Since then, he has dealt with a variety of legal issues, including bankruptcy, real estate, divorce, personal injury, and probate. Many times, answering questions on bankruptcy draws on knowledge of other legal areas as well. His experience in these other areas, as well as in bankruptcy enables him to address your particular needs and to offer you advice that is applicable to your situation.
At the law offices of Eli Tamkin in Cleveland, we represent clients throughout northeast Ohio, including Cleveland, Avon, Painesville, Cleveland Heights, Shaker Heights, Parma, Elyria, Strongsville, Lorain, Independence, Westlake, Lakewood, Maple Heights and Beachwood; and in Cuyahoga County, Lake County, Lorain County and Geauga County.
We are a debt relief agency. We help people file for bankruptcy under the Bankruptcy Code