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Bankruptcy filing may save home
WASHINGTON -- A bankruptcy filing alone may not be enough to help homeowners stave off a foreclosure for good, but it does buy attorneys like O. Max Gardner III time to come up with creative ways to help them keep their homes.
"You stop the bleeding with a bankruptcy filing," says Gardner, who has a consumer-bankruptcy practice in North Carolina. "Then, my practice looks for some way to legally attack the mortgage so that we can get it into a mortgage that the homeowner can afford."
Gardner says he often hunts for fraudulent activity such as improper disclosures and fees charged by lenders, and he uses that as leverage to force lenders to change the terms of the loan.
A sharp rise in borrowers with blemished credit histories defaulting on their mortgage loans has sent the subprime mortgage industry into turmoil. A total of 925,986 foreclosure filings -- default notices, auction sale notices and bank repossessions -- were reported on 573,397 properties nationwide during the first six months of 2007, up more than 55 percent from the first six months of 2006, according to a report released last month by research firm RealtyTrac.
A slew of subprime lenders such as New Century Financial Corp., Ownit Mortgage Solutions Inc. and People's Choice Home Loan Inc. have filed for bankruptcy in the past year amid the shakeout. The turmoil has also led homeowners, desperate to keep their homes, to file for bankruptcy.
Attorneys like Gardner have to work with a Bankruptcy Code that limits what they can do for clients that are behind on their mortgage payments and facing the real possibility of losing their homes.
If they place their clients in a so-called "fresh start," or Chapter 7, bankruptcy proceeding, unsecured debts such as credit card and medical bills can be wiped away. However, secured debts, such as mortgage loans, remain intact, and the client must find a way to foot the bill.
Lawyers could also place their client in a Chapter 13 proceeding, which enables consumers to come up with a payment plan for the missed mortgage payments.
But, Gardner says, the Chapter 13 formula doesn't work if the homeowner still can't afford the mortgage payment in the future, a problem made worse if the homeowner has an adjustable-rate mortgage poised to reset.
"For people who are coming to see me now, the Chapter 13 formula doesn't work, because the new payment they'll have to make when the reset date hits is 50 percent to 100 percent higher," Gardner says. "They can't make that."
The key to staving off a foreclosure for the long term is getting the mortgage loan modified into a product the homeowner can afford, attorneys say.
Changing an adjustable-rate mortgage to a fixed loan, getting the interest rate reduced and eliminating a stockpile of fees that are sometimes tacked on to the principal balance are all things that can help toward that goal.
Article Source http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20070820/BUSINESS/708200314/-1/NEWS01
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