Foreclosure Protections for Active Duty
Powerful Foreclosure Protections Afforded Active Duty Military Personnel
If you are in the Military and are currently on ACTIVE DUTY, or were on active duty within the last 90 days, then there is a law that provides you some very specific and powerful protection against foreclosure.
The Service Members Civil Relief Act of 2003 (SCRA) provides specific help and protection from foreclosure for individuals who are members of our armed forces. The Act applies to all active duty personnel, as long as you were not on active duty when you bought your house and signed the mortgage papers. The Act also applies if you co-signed on a loan with a service member.
If you bought your house while you were already on active duty then the law does not apply to you. Service Members covered by SCRA include all members on Federal active duty, including:
Regular members of the Armed Forces (Army, Navy, Air Force, Marine Corps and Coast Guard) Reserve, National Guard and Air National Guard personnel who have been activated and are on Federal active duty (whether as volunteers or as a result of involuntary activation) Inductees serving with the armed forces Public Health Service and National Oceanic and Atmospheric Administration Officers detailed for duty with the armed forces Persons who are training or studying under the supervision of the United States preliminary to induction National Guard and Air National Guard personnel on duty for training or other duty authorized by 32 U.S.C. §502(f) at the request of the President, for or in support of an operation during a war or national emergency declared by the President or Congress.
The law provides four basic types of relief for service members that are facing foreclosure:
1. Interest Rate Cap
2. Stay of Proceedings
3. Suspension of payments
4. Void the foreclosure sale
Getting the interest rate cap is automatic. All you have to do is ask. We have provided several sample letters in our download section. For free access to the letters as well as many other downloads just join our site. It’s free!
The remedies in 2, 3, and 4 are a little more complicated and you will have to get a Court involved. In order to qualify for these remedies you will have to show the Court that your ability to pay the loan has been “materially affected” by your active duty. It usually isn’t hard to show that your ability to pay was materially affected. For example, if you were making more money when you were a civilian than you do in the military then that, right there, could be enough and would be considered “material”.
Additionally, you can use these provisions on all of your loans, not just your home loan. You should speak with your commanding officer about obtaining free legal assistance if you are having problems implementing the law on your own. In most case the Judge Advocate General Corps (JAG) can help you obtain a lawyer at no cost.
Let’s explore each of these remedies individually to see exactly how each one works:
Interest Rate cap of 6%.
If you are having trouble making your mortgage payments while you are on active duty, you can request your lender to lower your interest rate down to 6%. In fact, the 6% interest rate cap applies to any debt that you incurred before you went on active duty. So, in other words, it applies to car loans and credit cards and any other consumer debt. This can provide huge relief to your family while you are deployed. It basically means that you can get all of your payments lowered across the board. This benefit alone could help you to avoid foreclosure. The interest rate cap starts on the date that you entered active duty.
Additionally, you can make your lender apply the 6% rate cap retroactively if you were released from active duty any time in the past six months. For example, let’s say that you are just now finding out about this 6% rate cap. You were on active duty during the past year but never informed your lender. That’s OK, as long as it hasn’t been more than 6 months since you were released, you can still request the rate reduction and it will be applied dating back to the day that you first went on active duty. You could be entitled to a credit!
It’s simple to get this rate reduction. All you have to do is notify your lender by writing a letter and attaching a copy of your orders to the letter. Your lender has to comply. They don’t have a choice.
A sample letter is shown at the end of this section. You can find your lender’s address on a recent mortgage statement or payment coupon. Your letter should be sent certified mail if possible.
Stop Foreclosure Proceedings
Mortgage (Judicial State): If you signed a mortgage and your lender has already started formal foreclosure proceedings such as filing a foreclosure lawsuit, you can have those proceedings stopped immediately. A lender is strictly prohibited from proceeding with a foreclosure while you are on active duty and for 90 days following your release from active duty. All you have to do is write a letter to the lender informing them of your active duty and stating that your active duty has materially affected your ability to comply with the terms of your mortgage. You can show that you were materially affected if, for instance, you had more income before you were on active duty than you make now while on active duty.
In addition to your lender, you need to notify the court and the lender’s attorney that you are on active duty. This can be done as simply as writing a letter to the Judge who is handling the case and having the Clerk of Court file a copy of the letter in the case file. Also, send a copy of the letter to the bank’s attorney who filed the lawsuit.
Be sure to include the Case Number in your letter. You should also provide a copy of your orders. The case number as well as the Judge’s name can be found on the lawsuit that was served upon you. If you no longer have a copy of the lawsuit, you can obtain a copy by calling your local Clerk of Court. In some cases these documents are available on line.
Deed of Trust (Non-Judicial State):
If you signed a Deed of Trust and the trustee has recorded a Notice of Default, then you can have the Trustee’s sale and all collection activity stopped immediately. A Trustee is strictly prohibited from proceeding with a foreclosure while you are on active duty and for 90 days following your release from active duty. All you have to do is write a letter to the lender informing them of your active duty and stating that your active duty has materially affected your ability to comply with the terms of Deed of Trust. In addition, you should inform the Trustee of your active duty.
If you no longer have a copy of the Notice of Default, you can obtain a copy from your local County Recorder. In many cases, these records are available on line. The Notice of Default will show the name and address of the Trustee. Make sure you send your letter via registered mail.This may be a good time to speak to your commanding officer about obtaining free legal assistance from the Judge Advocate General’s Corps (JAG).
Suspend payments on the loan
If you can show that your ability to pay the loan has been materially affected by your active duty, you can get the Court to suspend all of your payments until your active duty is completed. Better yet, you don’t even have to be delinquent. You can get this relief even if you have never missed a payment. Once you are released from active duty, then you can make up all of the missed payments by spreading them over the entire remaining term of the loan plus the time you were on active duty. This is a huge relief. Let’s take a look at how this would work.
EXAMPLE: Let’s say that you started out with a 30 year mortgage or deed of trust. Suppose that when you are released from active duty there are 24 more years remaining on your loan. Suppose you were in the military for 2 years. The maximum period for the stay would be calculated by taking the 24 years remaining on the mortgage at the time you were discharged and adding in the two years that you spent in the service. You will be allowed to spread your back payments out over 26 years. If your monthly payment was ,500 and you paid nothing during the time that you were on active duty, then you would be in arrears for ,500 times 24 months for a total of ,000. To spread that out over 26 years you have to figure that there are 12 payments due in each year. So in 26 years there are 312 monthly payments (12 x 26).
You would only have to make an extra payment of 5.38 each month in addition to your regular monthly payment in order to make up the balance. (,000/312)
Since this can get complicated it might be necessary to have an actual Court hearing. This may be a good time to speak to your commanding officer about obtaining free legal assistance from the Judge Advocate General’s Corps (JAG).
Void the Sale
If you are just now becoming aware of your rights under The Service Members Civil Relief Act of 2003 and your property has already been sold at a foreclosure sale, there is still hope for you. If you can demonstrate that your active duty materially affected your ability to comply with the terms of the Mortgage or Deed of Trust you can have the sale voided and get your property back. This is called “vacating” the sale.
Since vacating the sale is a drastic remedy, it will be necessary to have an actual Court hearing. This may be a good time to speak to your commanding officer about obtaining free legal assistance from the Judge Advocate General’s Corps (JAG).
NOTE: USE OF SAMPLE LETTERS
Most courts will allow non-attorneys to file pleadings with the court in the form of letters. Your particular jurisdiction, however, may not allow this and may insist on a formal pleading in a specific format that was approved by the court. Nevertheless, we feel that it will be beneficial to send the letters out anyway. This way all parties including the lender and the lender’s attorney will be put on notice of the fact that you are on active duty and that you are asserting your rights under the law.
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