Can a Second Mortgage Holder Foreclose?

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Mark CappelSep 16, 2009
Key Takeaways:
  • Default on your second mortgage, can lead to foreclosure.
  • Try to work out a forbearance plan.
  • Attempt a short sale or deed in lieu, before foreclosure happens.
Can the lender of a second mortgage foreclose on my home if the first mortgage is current?

Can the lender of a second mortgage foreclose on my home if the first mortgage is current?

If you become delinquent on your second mortgage, the lender can foreclose on your house and property.

The Foreclosure Process

The foreclosure process varies from state to state, but usually takes from two to 18 months. Generally speaking, if mortgage payments are not received within 150 days, the bank can proceed with the foreclosure process.

If the second mortgage holder forecloses, it is not automatic that the first mortgage holder will foreclose, but to protect their rights it would be foolish for the first mortgage holder not to foreclose as well. Alternatively, the first and second mortgage holder will negotiate a deal amongst themselves where one buys the interest in the property from the other so that only one mortgage holder will foreclose.

The house will be sold, the first mortgage holder will be repaid first, followed by the second mortgage holder if any funds remain.

Typically, in these situations, the sale price is less than the value of the mortgages held against it. If that is the case, then in some states the borrower could still owe an unsecured balance, which is called a "deficiency balance." The good news is that a deficiency balance (if it exists and if your lenders pursue it) is an unsecured debt (like credit card debt) that can be enrolled into a debt settlement program.

In some states (such as California) and in some circumstances, the second mortgage may be what is called a non-recourse loan. (I have written about the California recourse loans issue before.) A non-recourse loan means that the lender has no recourse to collect any deficiency balance against the borrower. Its only recourse is the security on the property itself. You will need to review your loan documents and state laws to determine if your second mortgage is a non-recourse loan. Contact an attorney in your state who is experienced in property law to determine for certain if your mortgages are recourse or non-recourse.

Second Mortgage Foreclosure

According to Bills.com readers I have spoken to and corresponded with, second mortgagees will initially take a hard-line stance in negotiations with homeowners in default. However, once the mortgagee is convinced the homeowner is sincere in their inability to repay the second mortgage and are considering bankruptcy, the mortgagee's position will soften and consider a lump-sum settlement. Readers report that some second mortgagees will settle for 10 to 30 cents on the dollar, depending on the policies of the company.

In the interest of full disclosure, it is possible legally, although not practical economically, for a second mortgagee (sometimes called a junior mortgagee) to foreclose and preserve its interests in the property. The junior mortgagee may pay off the first mortgage to preserve its own interest on the property. Because foreclosure destroys all interests that are junior to the mortgage being foreclosed, the junior mortgagee has the right to pay it off to avoid being wiped out by the foreclosure. The home equity lender may pay off the outstanding balance of the first mortgage and be subrogated to the bank's rights against the debtor.

As this is written in late 2009, it does not make economic sense for a junior mortgagee to redeem the first mortgage because property values in many areas are far lower than the mortgage balances on the attached properties. However, when property values recover the economics of this equation may reverse and we may see junior mortgagees exercise their right to redeem.

Loan Workout Plan

An agreement between borrower and lender to prevent the loss of a home is called a loan workout plan. It will have specific deadlines that must be met to avoid foreclosure, so it must be based on what the borrower really can do to get the loan up to date again.

The nature of the plan will depend on the seriousness of the default, prospects for obtaining funds to cure the default, whether the financial problems are short-term or long-term and the current value of the property. If the default is caused by a temporary condition likely to end within 60 days, the lender may consider granting "temporary indulgence."

Those who have suffered a temporary loss of income but can demonstrate that the income has returned to its previous level may be able to structure a "repayment plan." This plan requires normal mortgage payments to be made as scheduled along with an additional amount that will end the delinquency in no more than 12 to 24 months. In some cases, the additional amount may be a lump sum due at a specific date in the future. Repayment plans are probably the most frequently used type of agreement.

Forbearance Plan

In some cases, it may be impossible to make any payments at all for some time. For those who have a good record with the lender, a "forbearance plan" will allow them to suspend payments or make reduced payments for a specified length of time. In most cases the length of the plan will not exceed 18 months and will stipulate commencement of foreclosure action if the borrower defaults on the agreement.

Conclusion

Foreclosure is a serious situation that has negative repercussions on your credit score. Avoid foreclosure if you can. Consider a a deed in lieu of foreclosure or a short sale if you cannot create a loan workout or forbearance plan with the lenders.

Bills.com is here to help. We also offer helpful guides, foreclosure FAQs, glossary terms, and other helpful tools to help you keep your home and avoid a bank repossession. You can find more information on the Bills.com foreclosure page.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

10 Comments

WWilliam, May, 2012
We have 2 loans on our home. We have remodified our 1st mortgage ($450k) and we are current on the payments. The 2nd mortgage ($100k) has not been paid for. The private, hard-money lender of the 2nd has taken action by putting a Notice of Default. We would like to stay in the home and have contacted the lender to try to settle or refinance the $100K loan-But have not received any response. The lender of the 1st has told us it isn't necessary to pay the 2nd and we should try to negotiate the loan on the 2nd since the interest on it is so high. The value of the property is about $500k.My Questions: Can the private lender of the 2nd foreclose and require us to move if we are current on our 1st? Does the lender of the 2nd have to pay the 1st in order to foreclose on our home? Is a Notice of Default the same as a Foreclosure?Thank you, in advance for your time on this matter.William P.
jjon, Apr, 2012
i currently have my 1st w/ bofa i had a second w/them as well, when i modified 2 years ago they told me i no longer had a 2nd. 2 years later i have green tree calling me telling me i owe $95k on my second. there pretty aggressive wanting BS payment plan or 25% to settle and that's with looking at all my financial records. don't know what to do. I'm current on my 1st like everyone else my home is under bought it for $480 now worth less than $300. Can the debt collector garnish my check? or if i short sale will that make em go away? Again green tree claims they did not buy the account they're just handling it for bofa.
BBill, Apr, 2012
Your statement, "when i modified 2 years ago they told me i no longer had a 2nd" gives me pause for several reasons. Where did the loan go if you no longer had liability for it? Conversely, if the loan was forgiven and canceled, why is Green Tree attempting to collect on the loan? Do not assume anything here regarding the second — you may have liability for the loan, or you may not. Here is how you can tell: Consult with a lawyer who has real property or loan modification negotiation experience and ask him or her to research this issue.
JJon, Apr, 2012
But what if I am liable for that 2nd. Besides settling the account will a short sale also make it go away. Does SB 458 apply here ? And what are the chances they'll try to garnish my check or sue me. Being that the 2nd is with the same bank. I'm still current with my 1st don't know if that matters
BBill, Apr, 2012
Please see the Bills.com resource Is My HELOC a Recourse or Non-Recourse Loan in California? which discusses the issues surrounding the deficiency balance in a junior deed of trust. The article uses a HELOC as an example, but the discussion is really the same for any California junior. See also California Short Sale to see a short discussion of SB 458.
BBilly, Mar, 2012
My 2nd mortgage lender has accellerated my balance and it looks like it's been charged off. I'm about $20,000.00 underwater on this, so what should I do? I sent them an offer to settle the account @ 5% of the balance.
BBill, Mar, 2012
Because the lender wrote-off the account, the lender may choose to sell the rights to your mortgage to a collection agent, so be prepared to repeat your offer to another party. Starting at 5% is fine, and be prepared for a much larger counter-offer. Eventually, you may meet in the middle.