The Rhythm Method or We Need Time to Catch Up on the Mortgage

planB_Flickr-marsmet548

Now that this reality has surfaced, it’s time to plan to move with facts at hand. At a point certain you will be moving. No need to panic, read on. You can use the default and foreclosure time frame to take advantage of the law for your maximum benefit.  This is written with only Colorado Foreclosure Law in mind and bears no resemblance to foreclosure in any other states. Colorado is unique with the Public Trustee foreclosure system.

The maximum benefit is very simple: How long can you continue living in the home once you’ve stopped making payments or when payments are no longer accepted?

NOTE: I am not an attorney and I am not providing legal advice. You are advised to consult with an attorney regarding a pending or possible foreclosure. Further, I do not encouraging those who can make sustainable payments on sustainable mortgages to default on any mortgage.

One of the most non-sustainable mortgages is the negative amortization mortgage, especially when   coupled with a market where the real estate values are declining.

Now What? Let’s discuss the timeline of a Colorado Foreclosure. In the beginning there is the pre-foreclosure period.  This is the time from when you made your last payment until the formal foreclosure action begins. In the current environment the foreclosure process will not commence until after the third payment has not been made (Read: Forth month). 

Once the third payment has been missed, the mortgage servicing company typically sends their file to a foreclosing law firm in Colorado to commence foreclosure. The foreclosing law firm will make a demand for payment by a date certain or they will commence with the foreclosure proceeding. This process usually takes about a month.

We are now about four or five months after your last payment made. Next, the Notice of Election and Demand is issued by the Colorado Public Trustee. Following is an approximation of the Public Trustee timeline. This illustration is not meant to be an example of all pertinent dates of the Colorado Public Trustee timeline.

Public Trustee Foreclosure Publication Timeline 

CO Flag

The critical period for this discussion is the Public Trustee Foreclosure Timeline and the five week publication period. This is the five week period where the foreclosure information must be published in a local newspaper.  The key point is to gain the most time – if the Public Trustee Publication Period is interrupted, the entire process must be started over from the beginning of the foreclosure process as the original Public Trustee Sale is enjoined.

The sure fire way to interrupt the Public Trustee publication timeline is the filing of Bankruptcy during the five week publication period. Whether you file a Chapter 7 or a Chapter 13 is irrelevant. Once the bankruptcy is filed, the sale is enjoined, not just delayed but enjoined. From this point the mortgage servicer must obtain Relief From Stay from the bankruptcy court to start a new foreclosure.

To learn more about this process you are advised to contact an attorney specialized in the practice of bankruptcy. Should the attorney you are talking with not understand when and how to enjoin the foreclosure sale, keep looking or contact me for suggestions regarding appropriate legal counsel.

Some may ask what this post has to do with credit scores and that’s a very good question. Until one has ended the financial disaster that is or will be damaging the psyche and one’s credit, one cannot begin to heal  wounded credit much less a wounded credit score.

Finally, this column is not provided as legal advice nor is it intended to substitute for specialized legal counsel. The Public Trustee timeline graph (above) is specific and limited to the point of when and how to enjoin the Public Trustee sale. There is much more to the Public Trustee timeline than show herein.

As always do not hesitate to write back with comments or questions.  I read everything that comes back, even though I don’t always get a chance to respond as quickly as I would like.

Art Credit: Flickr and Google Images

 Financially SpeakingJames Spray CCMB, CNE, FICO Pro | CO LMO 100008715 / NMLS 257365 | March 2, 2011 Rev April 7, 2014
Notice: The information on this blog is opinion and information. While I have made every effort to link accurate and complete information, I cannot guarantee it is correct. Please seek legal assistance to make certain your legal interpretation and decisions are correct. This information is not legal advice and is for guidance only. You may use this information in whole and not in part providing you give full attribution to James Spray.

 

 

 

3 comments on “The Rhythm Method or We Need Time to Catch Up on the Mortgage

  1. TS Botkin says:

    Jim, is there a rythym method on late payments to extend out the time before a foreclosure filing hits? What about late payment amounts? Do borrowers have to pay those, too, or can they just make my regular payment and let the late fees build without incurring the filing? I do not intend to infer a strategic default without cause, but rather a strategy to imminent default. Thanks!

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    • jamesspray says:

      Excellent question! And yes, in many situtions foreclosure can be delayed by making a single payment every 90 days. When this strategy is employed one need not make up the delinquent payments or the late charges. Using this strategy, the escrow account for the insurance and taxes will lapse. It is necessary to make sure the property is insured for your own protection. In many cases the 1st mortgage dcompany will “force place” insurance on the real property. However this “forced place” insurance does not protect your personal property (the contents) and in this case you will wish to call your insurance agent and get contents insurance.
      Regarding strategic default it is a really good idea to hire a real estate attorney to advise how to avoid assuming additional risk.
      There are exceptions that eliminate the strategy described above. Most glaring is when a mortgage has been called due to the term of the mortgage, such as a balloon or a maxed out Negative Amortization Option ARM.

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  2. James Spray says:

    In Great Britan this is akin to the term Static Delinquency – http://bit.ly/Ye4F2Z

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