Al Cutturini

Foreclosure Attorney

North Mississippi Rural Legal Services
662-234-2918 x 2119
apcutturini@nmrls.com

Saving The Home: Preventing Foreclosure With The Make Home Affordable Program

Prerequisites to Foreclosure

Default: Failure to make current payments on the property or failure to pay current taxes.  Lender must file to foreclose within three year SOL from default. Miss. Code Ann. § 15-1-21 (2011) and there is a one year SOL for suits following a foreclosure Miss. Code Ann. § 15-1-23 (2011).

Notice of Default:  Borrower receives notice of default and can pay all amounts due in order to become current.

Acceleration letter:  If default is not cured, lender can now demand the entire balance to be due and owing, not just the amount in arrears.

Foreclosure proceeding begins:  This usually starts 60-90 days after default, though lender can begin foreclosure process immediately after borrower misses one payment. Borrower has until the sale date to redeem the property and reinstate the loan by paying all overdue amounts, including any accrued costs such as attorney fees and past due interest.  Unless the fees or costs are expressed in the documents as a set amount or percentage, they must be reasonable and customary.  The borrower does not have to pay the accelerated amount of the loan. Miss. Code Ann. § 89-1-59 (2011).

Types of Foreclosure

Judicial:  In Mississippi, the lenders can file in court for a judicial foreclosure proceeding, where the court must issue a final judgment of foreclosure. The property is then sold as part of a publicly noticed sale by the sheriff.  A complaint is filed in court along with what is known a lis pendens, which is a recorded document that provides public notice that the property is being foreclosed upon.

Judicial foreclosure usually follows these steps after the default occurs:

  • A complaint is filed, lis pendens is filed
  • The homeowner is served with notice of complaint
  • A hearing may be held to determine the sufficiency of the complaint (would require borrower to file written answer)
  • A date for redemption is set
  • Sale date is set
  • Foreclosure sale occurs

Non-Judicial:  In Mississippi, the out-of-court foreclosure process is most common. A deed of trust usually includes contains a power of sale clause in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of default.  Where a power of sale clause exists, the power given to the lender to sell the property may be executed by the lender or their representative, referred to as the trustee.  Generally, a borrower will receive a default notice at least 30 days before the foreclosure sale, though notice also includes those which may be provided for contractually in the deed of trust or those which may be imposed by the insurer, or guarantor of the loan, or that which may be required to be given the beneficiaries of federal liens or may be required under the provisions of the Fair Debt Collection Practices Act (FDCPA).  No personal service by constable or process server needed.  After this, the trustee initiates the foreclosure sale process outlined in Miss. Code Ann. § 89-1-55 (2011).

Post Notice in court house and in newspaper

The trustee must record a notice of sale containing, at minimum, a description of the property, deed of trust information, the parties involved, and the time, place, and terms of the sale.  This notice must also be posted at the courthouse door in the county where the property is located and published in a newspaper of general circulation in said county for a period of three (3) consecutive weeks before the schedule date of the sale. Miss. Code Ann. § 89-1-55 (2011).  If three weeks, must be same day all three weeks, then sale on fourth week. If four consecutive weeks ads run, sale can be any of the seven days after last ad. If sale is more than one week after date of last publication, the foreclosure is void.

The sale must be made at public auction, usually between 11:00 a.m. and 4:00 p.m., for cash to the highest bidder. The Trustee may not bid on the property; however the lender is permitted to bid.  Miss. Code Ann. § 11-5-101 (2011). The sale may be held in the county where the property is located, or, if different, in the county where the borrower resides.

The trustee can postpone the sale to the next day by announcing the postponement at the originally scheduled sale. The winning bidder must supply the sale amount usually in the form of cash or certified funds at the sale; if not, the sale must be rescheduled and republished. After the sale, the trustee prepares a deed conveying ownership to the winning bidder. In the case of a surplus, the additional amount is dispersed to any other affected secondary lenders. If the home sells for less than the mortgage, the lender can sue the borrower for the amount of deficiency. Actions to recover a deficiency must be commenced within one year of the foreclosure sale date Miss. Code Ann. § 15-1-23 (2011).

The foreclosure sale is final, and after the sale the borrower has no right to redeem the property. 

Miss. Code Ann. § 89-1-55 (2011)
How lands sold under mortgages and deeds in trust

All lands comprising a single tract, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust, shall be sold in the manner provided by Section 111 of the Mississippi Constitution of 1890 for the sale of lands in pursuance of a decree of court, or under execution. All lands sold at public outcry under deeds of trust or other contracts shall be sold in the county in which the land is located, or in the county of the residence of the grantor, or one of the grantors in the trust deed, provided that where the land is situated in two (2) or more counties, the parties may contract for a sale of the whole in any of the counties in which any part of the land lies. Sale of said lands shall be advertised for three (3) consecutive weeks preceding such sale, in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the original mortgagor or mortgagors in said deed of trust or other contract. No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession.

Preventing Foreclosure

The Making Home Affordable Program (MHA) helps homeowners avoid foreclosure, stabilize the country's housing market, and improve the nation's economy.

If Fannie Mae or Freddie Mac owns your loan, you may be eligible for programs designed to make your mortgage more affordable – like the Home Affordable Refinance Program (HARP) or the Home Affordable Modification Program (HAMP).

Use this lookup tool: http://www.fanniemae.com/loanlookup/ and https://ww3.freddiemac.com/corporate/

Modify or Refinance Your Loan for Lower Payments

Home Affordable Modification Program (HAMP): HAMP lowers your monthly mortgage payment to 31 percent of your verified monthly gross (pre-tax) income to make your payments more affordable. The typical HAMP modification results in a 40 percent drop in a monthly mortgage payment. Eighteen percent of HAMP homeowners reduce their payments by $1,000 or more.

You may be eligible for HAMP if you meet all of the following criteria:

  • You obtained your mortgage on or before January 1, 2009.
  • You owe up to $729,750 on your primary residence or single unit rental property
  • You owe up to $934,200 on a 2-unit rental property; $1,129,250 on a 3-unit rental property; or $1,403,400 on a 4-unit rental property
  • The property has not been condemned
  • You have a financial hardship and are either delinquent or in danger of falling behind on your mortgage payments (non-owner occupants must be delinquent in order to qualify).
  • You have sufficient, documented income to support a modified payment.
  • You must not have been convicted within the last 10 years of felony larceny, theft, fraud or forgery, money laundering or tax evasion, in connection with a mortgage or real estate transaction.

Source: http://www.makinghomeaffordable.gov/programs/

Payment Reduction Estimator: https://www.makinghomeaffordable.gov/get-answers/Pages/get-answers-tools-payment-reduction-estimator.aspx

Under the Home Affordable Modification Program, the target maximum amount for your mortgage payment (or mortgage debt-to-income) should be approximately 31% of your gross (pre-tax) monthly income. This Payment Reduction Estimator will help determine what your current mortgage debt-to-income is and how much your monthly payment could be reduced if you qualify for a modification. Based on your individual financial situation, under HAMP, your final modified payment may be above or below the 31% debt-to-income ratio.

Do not include any payments on your second mortgage. You may have taxes and interest in escrow added to your monthly payment already, so be careful to count taxes and escrow only once.

Home Affordable Refinance Program (HARP): If you are current on your mortgage and have been unable to obtain a traditional refinance because the value of your home has declined, you may be eligible to refinance through HARP. HARP is designed to help you refinance into a new affordable, more stable mortgage.

You may be eligible for HARP if you meet all of the following criteria:

  • The mortgage must be owned or guaranteed by Freddie Mac or Fannie Mae.
  • The mortgage must have been sold to Fannie Mae or Freddie Mac on or before May 31, 2009.
  • The mortgage cannot have been refinanced under HARP previously unless it is a Fannie Mae loan that was refinanced under HARP from March-May, 2009.
  • The current loan-to-value (LTV) ratio must be greater than 80%.
  • The borrower must be current on the mortgage at the time of the refinance, with a good payment history in the past 12 months.

Source: http://www.makinghomeaffordable.gov/programs/lower-rates/Pages/harp

Principal Reduction Alternative (PRA): PRA was designed to help homeowners whose homes are worth significantly less than they owe by encouraging servicers and investors to reduce the amount you owe on your home.

You may be eligible for PRA if:

  • Your mortgage is not owned or guaranteed by Fannie Mae or Freddie Mac.
  • You owe more than your home is worth.
  • You occupy the house as your primary residence.
  • You obtained your mortgage on or before January 1, 2009.
  • Your mortgage payment is more than 31 percent of your gross (pre-tax) monthly income.
  • You owe up to $729,750 on your 1st mortgage.
  • You have a financial hardship and are either delinquent or in danger of falling behind.
  • You have sufficient, documented income to support the modified payment.
  • You must not have been convicted within the last 10 years of felony larceny, theft, fraud or forgery, money laundering or tax evasion, in connection with a mortgage or real estate transaction.

Source: http://www.makinghomeaffordable.gov/programs/lower-payments/

Second Lien Modification Program (2MP): If your first mortgage was permanently modified under HAMP and you have a second mortgage on the same property, you may be eligible for a modification or principal reduction on your second mortgage under 2MP. Likewise, if you have a home equity loan, HELOC, or some other second lien that is making it difficult for you to keep up with your mortgage payments you may qualify. Contact your mortgage servicer to see if you are eligible for 2MP.

You may be eligible for 2MP if you meet all of the following criteria:

  • Your first mortgage was modified under HAMP.
  • You must not have been convicted within the last 10 years of felony larceny, theft, fraud or forgery, money laundering or tax evasion, in connection with a mortgage or real estate transaction.
  • You have not missed three consecutive monthly payments on your HAMP modification.

Source: http://www.makinghomeaffordable.gov/programs/lower-payments/Pages/lien_modification

“Underwater” Mortgages

Treasury/FHA Second Lien Program (FHA2LP): If you have a second mortgage and the mortgage servicer of your first mortgage agrees to participate in FHA Short Refinance, you may qualify to have your second mortgage on the same home reduced or eliminated through FHA2LP. If the servicer of your second mortgage agrees to participate, the total amount of your mortgage debt after the refinance cannot exceed 115% of your home’s current value.

You may be eligible for FHA2LP if you meet the following criteria:

  • You are eligible for FHA Short Refinance.
  • You obtained your mortgage on or before January 1, 2009.
  • You must not have been convicted within the last 10 years of felony larceny, theft, fraud, forgery, money laundering or tax evasion in connection with a mortgage or real estate transaction.

Home Affordable Refinance Program (HARP) previously mentioned

Principal Reduction Alternative (PRA) previously mentioned

Assistance for Unemployed Homeowners

Home Affordable Unemployment Program (UP): If you are having a tough time making your mortgage payments because you are unemployed, you may be eligible for UP. UP provides a temporary reduction or suspension of mortgage payments for at least twelve months while you seek re-employment.

You may be eligible for UP if you meet all of the following criteria:

  • You are unemployed and eligible for unemployment benefits.
  • You occupy the house as your primary residence.
  • You have not previously received a HAMPSM modification.
  • You obtained your mortgage on or before January 1, 2009.
  • You owe up to $729,750 on your home.

Source: http://www.makinghomeaffordable.gov/programs/unemployed-help/Pages/up

FHA Forbearance for Unemployed Homeowners: Federal Housing Administration (FHA) requirements now require servicers to extend the forbearance period for unemployed homeowners to 12 months. The changes to FHA’s Special Forbearance Program announced in July 2011 require servicers to extend the forbearance period for FHA borrowers who qualify for the program from four months to 12 months and remove upfront hurdles to make it easier for unemployed borrowers to qualify.

Managed Exit for Borrowers

Home Affordable Foreclosure Alternatives (HAFA): If your mortgage payment is unaffordable and you are interested in transitioning to more affordable housing, you may be eligible for a short sale or deed-in-lieu of foreclosure through HAFA SM. Home Affordable Foreclosure Alternatives (HAFA) Program.  HAFA provides two options for transitioning out of your mortgage: a short sale or a Deed-in-Lieu (DIL) of foreclosure. In a short sale, the mortgage company lets you sell your house for an amount that falls "short" of the amount you still owe. In a DIL, the mortgage company lets you give the title back, transferring ownership back to them.

In either case, HAFA offers benefits that make the transition as favorable as possible:

  • You can get free advice from HUD-approved housing counselors and licensed real estate professionals.
  • Unlike conventional short sales, a HAFA short sale completely releases you from your mortgage debt after selling the property. This means you will no longer be responsible for the amount that falls "short" of the amount you still owe. The deficiency is guaranteed to be waived by the servicer.
  • In a HAFA short sale, your mortgage company works with you to determine an acceptable sale price.
  • HAFA has a less negative effect on your credit score than foreclosure or conventional short sales.
  • When you close, HAFA may provide $3,000 in relocation assistance.

Source: United States Dept. of Housing and Urban development website at http://portal.hud.gov/hudportal/HUD?src=/topics/avoiding_foreclosure

Military Modification: Under recently announced changes to HAMP, military homeowners and other families who are permanently displaced by a job-related move may still qualify as owner-occupants, which mean you may still be eligible for a mortgage modification.

If you’re a service member struggling with your mortgage payment, you may be eligible for a HAMP modification if:

  • You are displaced due to an out-of-area job transfer such as permanent change of station (PCS) orders and were occupying the home as a principal residence immediately prior to the displacement;
  • You intend to return to the home at some point in the future; and
  • You do not own any other single-family real estate.
  • Military and other families who do own other residential properties may still qualify for a HAMP modification under expanded opportunities available for rental or may qualify for a short sale under Home Affordable Foreclosure Alternatives Program (HAFA).

Source: http://www.makinghomeaffordable.gov/programs/military-resources/Pages/default


For loan modifications and refinance options, borrowers may be contacted directly by one of the five participating mortgage servicers or you may contact the banks directly if you need additional information:

Ally/GMAC: 800-766-4622

Bank of America: 877-488-7814 (Available M-F  7am - 9pm CT and Saturdays  8am CT - 5pm CT

Citi: 866-272-4749

JPMorgan Chase: 866-372-6901

Wells Fargo: 800-288-3212 (Available M-F 7 a.m. to 7 p.m. CST)

MS Foreclosure Hotline: 1-866-530-9572 or HOPE Hotline 1-888-995-HOPE (4673)

Making Home Affordable: www.makinghomeaffordable.gov