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At least 90 percent of all houses sold at a Texas foreclosure sale are deeded back to the lender that conducted the sale rather than being sold to a third party. This requirement will be automatically met in almost all residential home foreclosure sales. In most foreclosure situations, the home serves as collateral to secure repayment of a loan obtained to buy the house. Although not common, a lender or other creditor can attempt to foreclose due to non-monetary defaults such as: i a failure to maintain insurance, ii a failure to pay property taxes, or iii deed restriction violations.
Almost all mortgage loan documents require the property owner to pay taxes and keep the property insured, and permit the lender to foreclose if the homeowner defaults on these non-monetary obligations. A foreclosure sale conducted due to these types of defaults can not be reversed as a preference because the foreclosure sale was not based on a failure to pay an antecedent debt. There is no escrow account to collect a monthly reserve for the insurance or property taxes.
The loan documents contain a standard clause requiring Homeowner to pay property taxes when due and keep the house insured.
Homeowner fails to buy insurance or pay property taxes. Homeowner was current on all mortgage payments on the foreclosure sale date.
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Lender buys the house at the sale. Homeowner files for bankruptcy and attempts to void the foreclosure sale as a preference. The fourth requirement to establish a voidable preference is that the homeowner was insolvent when the foreclosure sale was conducted. The property owner is presumed to be insolvent at all times within the 90 days before the bankruptcy is filed. The lender or other creditor will have the burden to prove that the homeowner is not insolvent.
The insolvency test will be easily satisfied in most situations unless the homeowner owns a business or other valuable non-exempt legally seizable assets. The bankruptcy code definition of insolvency specifically excludes all exempt assets assets legally protected from seizure. It is very unusual for a property owner to have non-exempt assets that exceed the amount of his debts when the debts include loans collateralized by exempt assets such as houses and cars. Example 2: Homeowner has the following debts and property on the date Lender forecloses on his house for failing to pay the mortgage debt:.
Counted Amnt. Total Assets. The fifth requirement to establish an unlawful preference is that the bankruptcy case must be filed within 90 days after foreclosure sale date.
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A homeowner will not be able to reverse the sale as a preference if he waits to file a bankruptcy case for more than 90 days after the foreclosure sale date. The sixth element of proof required to void a foreclosure sale as a preference is the most important. The homeowner must establish that the sale back to the creditor will enable the foreclosing creditor to receive more value for the house than it would receive if the property was sold by a trustee in a hypothetical Chapter 7 bankruptcy case.
A chapter 7 trustee is permitted to sell property in a relaxed, unforced sale, at fair market value. Therefore, this requirement essentially means that the foreclosure sale can be avoided as a preference if the payoff balance owed to the foreclosing creditor is less than the fair market value of the house on the foreclosure sale date. A foreclosing lender except for a small private company or an individual will never bid more at a foreclosure sale than the payoff balance due on the loan.
Therefore, put another way, a foreclosure can be reversed as a preference only if the homeowner has some equity in the property — only if the market value of the house is more than the payoff balance due on the first mortgage loan. This final consideration is whether the property has been sold to a bona fide purchaser.
A foreclosure sale can not be voided a as a preference if the foreclosing lender sells the house to a bona fie purchaser after the foreclosure sale but before the bankruptcy case is filed. In this situation, a bona fide purchaser would be a third party, without knowledge that the transfer could be avoided as a preference who pays value for the home.
The preference claim is not completely defeated if the foreclosed property is sold to a bona fide purchaser. The homeowner can still recover damages from the foreclosing creditor measured by the difference between the payoff balance due on the loan owed to the foreclosing creditor and the fair market value of the foreclosed home. However, the original homeowner would not be able to recover the house from the bona fide purchaser the third party that bought the house from the foreclosing creditor.
Call us for a free consultation to evaluate your claim if your real property has been foreclosed upon and you meet the following requirements:. Income Taxes Federal and State 2. Employment Taxes 3. Sales Taxes 4. Property Taxes 5. Federal Tax Liens 8. Statute of Limitations 9. Weber made what seemed to be an incredibly complex process simple to understand.
His ability to walk me through every part of the filing, and his quick turn around in answering any questions I had, continued throughout the entire five years of my Chapter 13 plan. Weber if you ever get in the position of needing to file for bankruptcy. Weber helped me file for Ch.
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