Tag Archives: foreclosure

Two Hidden “Legal” Risks of Debt Consolidation Loans

Debt consolidation is combining outstanding loans (debt) into a single package (consolidation). The debts therefore become one “new” loan, and instead of making several small payments on the loans you used to have, you make one larger payment on the new loan.

Occasionally people ask whether debt consolidation is a good, economically constructive solution to credit card problems. Usually, the answer is that it is not. Certainly not as a solution all by itself. This article discusses some of the drawbacks of debt consolidation.

Debt Consolidation Loans

Ideally and typically—and what has made debt consolidation loans popular—the new, consolidated, loan is secured by some asset, often your home. This allows you to obtain lower interest rates. Thus consolidation, in the  final analysis, is the conversion of unsecured debt into secured debt in exchange for lower interest rates. It can reduce your monthly payments considerably, and of course that could be very helpful.

It also converts “old” loans into new loans, giving them a new statute of limitations (new life for loans that could be at or near their time of expiring). Consolidating debts you haven’t paid for quite a while is probably a bad idea for this reason.

Consolidation can even turn loans with short statutes of limitations into loans with long ones. This isn’t necessarily bad, but it does increase your general level of legal risk.

Why Doesn’t Debt Consolidation “Work?”

Debt collection is seldom the solution people hope it will be. If you hare having trouble paying your bills, it won’t necessarily make your life any easier. Why?

It’s a question of risk.

Economics

As a pure financial transaction, exchanging a lower interest rate for a security arrangement can be a very reasonable decision. Why then has it been such a disaster for so many people?

Most people entering into complex financing are not able to assess risk and account for it. This is particularly true when they are under economic pressure—which they usually are when they consider debt consolidation loans. Thus people systematically underestimate the risk that they won’t be able to make the payments on the new debt.

Additionally, since most people do not really want to go far into debt in the first place, large credit card debt suggests other problems, either too little money or a tendency to overspend. These issues are more likely to be made worse by the sudden reduction of economic pressure and the sudden, apparently greater amount of money or credit available to be spent. Loan consolidation, like winning the lottery, encourages reckless spending.

The Hidden Legal Risks of Debt Consolidation

In addition to these “systemic” issues, there are two other main hidden costs of consolidation you should consider: loss of flexibility, and the nature of secured debt versus unsecured debt.

Consolidated Loans are Less Flexible

When you have ten loans for different things, from automobiles to credit cards, you have flexibility if hard times strike. If you simply cannot make your payments, you can give up some, but not all, of the things you have purchased. You can let some, but not all of the credit cards go into default.

This is certainly not a happy thing, of course, but it raises the possibility of individualized debt negotiations, debt forgiveness, or even missed statutes of limitation. Again, these are not the choices and hopes of someone in flush economic conditions, but they are real options facing many people right now.

In order for a debt collector to start garnishing your wages, it must find and sue you, must win, and then find your assets. It is an expensive and risky process for the debt collector if you fight. They sometimes drop the ball, and there are limits to how much of your wages they can garnish.

If everything else fails for you, you can declare bankruptcy, where homestead exemptions are likely to allow you to remain in your home.

The Nature of Secured Debt

The risk of debt consolidation loans is the nature of secured, versus unsecured, debt. Remember that what powers the lower payments for consolidation is the existence of security—usually your home. Your home secures the debt, and that means that if you do not make your payments on the new debt, the lender can foreclose on your home and take it away.

Foreclosures are generally “expedited” proceedings, meaning that your defenses are limited and the time for asserting them is restricted. In many states foreclosure is not even a judicial proceeding, although you have some legal rights you could assert in certain circumstances.

And what all that means is that instead of facing the prospect of years of battling over high-risk debts and questionable payoffs that could be trumped by bankruptcy, the banks can waltz into court and emerge in a very short time with your house. Put a little differently, your debt consolidation loan could make you homeless almost before you know it. And bankruptcy often, if not usually, will do nothing to protect you from it.

Anyone considering debt consolidation should think about these risks very carefully.

Jurisdiction – Why it Matters in FDCPA and Foreclosure

jurisdiction could mean difference between losing home or not
jurisdiction could mean difference between losing home or not

If someone is trying to take away your house for nonpayment of some debt, the Fair Debt Collection Practices Act (FDCPA) may – or may not – be useful to you. The law differs according to jurisdiction, and you will want to choose the one that gives you your best chance.

This article is a very basic primer on the interaction of state and federal jurisdiction when it comes to debt collection generally, and foreclosure more specifically. Wherever you live, you will want to consider both federal and state cases on applying the FDCPA to foreclosure if you want to sue a debt collector for its acts in taking, or trying to take, away your house.

Most Debtor-Creditor and Property Law is “State” Law

In theory, federal law only applies to areas of the law designated by the constitution, whereas everything else is controlled by state law. That can lead to confusing results where those interests overlap. In general, the laws creating and enforcing property rights (e.g., contract rights, debt, or property ownership rights) are state law. If you get sued for a debt, the action will almost certainly occur in a state (as opposed to federal) court. Foreclosure rights are also determined by state law.

Debt Collection Is a Special Situation

Claims under the FDCPA can be brought in either state or federal court. While property rights are creatures of state law, debt collection was considered so extensive a problem that it was a national (i.e., federal) problem. Thus Congress carved out a piece of debtor-creditor law for itself when it enacted the Fair Debt Collection Practices Act, which makes certain actions taken by debt collectors (primarily) illegal. The FDCPA is federal law, in other words, but as it happens it provides that it can be enforced in either federal or state courts.

Because of the way the federal and state law systems mesh, you could conceivably defend a collection action or foreclosure in state court by filing a counterclaim and seeking an injunction, by filing a separate action in state court under the FDCPA, or by filing a federal claim under the FDCPA and seeking an injunction in federal court. Likewise you could defend or settle a state collection action and then bring suit under the FDCPA in federal court (although remember that the FDCPA has a one-year statute of limitations). All of these variations occur quite often.

States are Independent of Each Other

The state law of the court in which the suit is brought will always determine some the procedures in the case and usually the actual “substantive” rights. Under certain circumstances other state laws might also apply (this comes up most frequently where there is a contract that specifies the state’s law that will apply). State laws and procedures can be different from state to state. If you live in Tennessee, you will be subject to the state laws of Tennessee, and these may (or may not) be very different in some important way than the laws of Pennsylvania, for example, or any other state.

If you are pro se (representing yourself), therefore, your first action must be to determine which state laws (and of which states) apply to which parts of your case at the basic debtor-creditor level. In other words, if you are being sued on a credit card debt, is the company suing you under the law of your home state? Or is it suing you under the laws of some other state? In foreclosure law, it will almost always be suing you (or foreclosing without suit) under the law of your own state.

The courts of one state are not bound in any way by the courts of any other state when they are dealing with their own laws, but they are subject to state courts of appeals and the state supreme courts (and sometimes in certain areas of the law, the U.S. Supreme Court).

State Courts are Independent of Federal Courts, too

Things get a little more complicated when it comes to state courts applying other states’ laws or federal law. In a general sense, they “should” determine what the appropriate court applying its own law would do. In reality, there is usually no appeal to those courts, and so the decisions can vary widely.

The Federal Law

The federal system is similar to the state system, except that eventually they all answer to the Supreme Court. That is, when the Supreme Court has spoken, all the federal courts are supposed to make decisions which are consistent with what the Supreme Court says. Because cases are always decided on the narrowest set of facts possible, and because there are so many laws and cases, however, the Supreme Court often will take many years before deciding a given issue. That leaves the lower courts to guess what the Supreme Court would say. One area where that is happening right now regards whether the FDCPA applies to foreclosure. Eventually the Supreme Court will decide one way or another, but until that time, the lower courts apply the law as they see fit. Sort of.

Each Federal Circuit Controls the District Courts below it

The federal (civil) judicial system is divided into three levels: district courts (where lawsuits are filed and tried); courts of appeal (“circuit courts of appeal”) and the Supreme Court. As described above, all courts answer to the Supreme Court. Below that, the federal circuit courts of appeal control all the district courts below them. Appeals are expensive, specially to the Supreme Court, and they are hard to win. Therefore it is vitally important to win, if at all possible, at the trial court level.

How the Different Jurisdictions Interact

Because the federal circuits are independent of one another, and the states are independent of one another and the federal courts, different places develop different rules arising out of the same law. A perfect example of that would be the way the 3rd, 4th and 9th federal circuits (and all the district courts below them) allow FDCPA claims against foreclosers, whereas the 7th and 11th federal circuits limit those rights. The states also vary from each other and the federal circuits.

Forum Shopping

What all those different decisions mean is that if you are being foreclosed on and think the FDCPA applies to your case, you need to “forum shop.” That is, after determining the state laws that apply to the foreclosure itself, your second task is to determine whether or not your state applies the FDCPA to foreclosure. If not, then does your federal circuit? You will need to look at the law for each and decide where to bring your claim. You can bring it in either federal or state law – you should bring it in the jurisdiction that seems most likely to apply the FDCPA to your foreclosure. Although this isn’t necessarily easy to tell, it can make or break your case, and you need to consider the question as a part of your initial strategy.

About Your Legal Leg Up

Your Legal Leg Up is a business dedicated to helping people fight debt collectors without having to hire expensive lawyers to do it. We offer you everything you need to defend your rights – with special help through our membership services to help make the process smoother, easier, and less worrisome. YourLegalLegUp.com has been in operation since 2007. Before that, Ken Gibert practiced law representing people being sued for debt among other types of consumer law.

If you would like to get a personalized evaluation of your situation, follow this link: https://yourlegallegup.com/pages/evaluation.

For further help, consider our Manuals and Memberships. We have materials on debt negotiations and settlement, forcing debt collectors to leave you alone, credit repair, and many other issues that arise when you are facing debt trouble.

Click here to sign up for our free newsletter, Fightdebt.

Foreclosure: A Debt Collection Method in Ordinary Life

Foreclosure is a form of collection
Foreclosure is collection

Foreclosure in the Real World is Debt Collection

Despite what some courts have held, foreclosure is a form of debt collection in the real world. To put it simply, creditors sell something of yours to pay a debt they claim you owe. This is not, as some legal theory would hold, merely a transference of title back to the “true” owner.

To understand why this is so, you need to know some history and law.

Debt Collectors sometimes threaten to repossess and auction off property that secures a loan unless you pay them, or else they actually repossess and sell off the property, in order to pay the debt. This video and article discuss the way the process works.

What Foreclosure Does

Foreclosure is designed to allow for possession (or repossession) of property that secured an unpaid debt. Most people simply think of foreclosure as “getting kicked out of your house.” And in many situations that is an appropriate understanding. In reality foreclosure addresses ownership rather than possession, however. It involves the termination of at least one person’s  ownership in favor of another person. This can, but does not always, lead to eviction.

English Law and the History of Foreclosure and Property Rights

We don’t think of it often, but one of the great inventions of English law was the division of property into different property “interests” or rights that could co-exist in the same property.

The state “owns” physical property in one way. The landowner owns it in another, and the tenant also has certain ownership rights. If the landowner is married, both spouses will have rights in the property, and it is possible to divide the rights up in many other ways, too.

Another form of coexisting rights is the way you could own your home have it subject to a mortgage and also various sorts of liens.

“Foreclosable” Interests

We are primarily interested in the mortgage and liens because these are subject to “foreclosure.”

Most people (including the courts) only think of “purchase-money mortgages” (the mortgage you take out in order to buy your house) when they analyze foreclosure. But people can place liens on your house in other ways, too.  The state can for taxes or judgments, to name two examples, and there are others.

All liens can be foreclosed. Mechanically what happens is that the foreclosing party causes the property interests to be divided and paid off. The way that is accomplished is by selling the property and splitting the money up according to the priority of interests.

There is a hierarchy of interests. The money goes to pay off the higher interests before the lower interests get anything. Eventually, if there is enough to pay every creditor with money left over, the property “owner” would get that.  Or to put it another way, being the property owner means that you get whatever is left after paying all the other interests off.

You get the “equity.” But usually, if there is not enough to cover all the secured interests, you will owe the secured parties money personally.

Two Examples of Foreclosure

Let’s consider two examples. In the first, Owner A  and B each own houses worth $100,000 on the open market. That’s what they would sell for.

Owner A

Owner A has the following liens against the property: a purchase money mortgage of $35,000, a home equity loan of $10,000, and a mechanic’s lien of $1,000.

$100,000 Value of House

($35,000) Purchase Money Mortgage
($10,000) Home Equity Loan
($ 1,000) Mechanic’s Lien
===================

$54,000 – Equity

Owner B

Owner B has the following liens against the property (in this order – the order of liens is beyond the scope of this article): a purchase-money mortgage of $110,000 (the house is “underwater” because the loan remaining is more than the house is worth); a home-equity loan of $10,000, and a mechanic’s lien of $1,000.

$100,000 Value of House

($110,000) Purchase Money Mortgage
($ 10,000) Home Equity
($ 1,000) Mechanics lien
=============

($21,000) equity (a negative number)

If neither one can pay off the purchase money mortgage, go into default, and someone forecloses, here’s what happens.

Results of Foreclosure

A loses possession of the house, and all security interests in the property are “extinguished.” The money is enough for the mortgage, so the bank takes that. Because the home was security for the home equity loan and mechanic’s liens, the foreclosure breaches the contract with the lender. It intervenes (legally) in the foreclosure and demands its money and gets it before anything goes to A. Because the lien was “subject” to the other agreements, the money goes to pay the lien before A gets anything.

In B’s situation, the bank gets all the money. The other lenders get nothing, but keep their claims against B. The sale extinguishes their security interests in the property, and chances are good they’ll lose everything they  lent.

Why Debt Collectors Often Do Not Foreclose

What if, instead of not paying the bank, A and B had failed to pay the home equity loan? In that situation, the Home Equity lender could foreclose on the loan. Lower level security interests can foreclose on the loan. Any other person with an interest in the property, including the mechanic, might take some action to intervene in order to protect its interests, although in B’s case, especially, this is unlikely. The bank will get all the money, and the home equity lender will get nothing even though it is the one that foreclosed.

This explains why debt collectors rarely foreclose on a house. It will cost them money but get them nothing. But that isn’t to say they couldn’t or that it would never make sense for them to do or threaten to do.