Alabama foreclosure: Critical keys to understanding a default letter or notice of default
The default letter (or “notice of default”) is the critical first step in the foreclosure process against you in Alabama. You need to know:
- What is happening with the default letter
- Defects in the default letter
- What will happen next
- What you should do right now
Let’s take these one at a time.
What is happening with the notice of default or default letter (and why are you getting it from your mortgage company)?
The notice of default (default letter) basically tells you that you have broken some promise in the mortgage. Under the typical mortgage (you have to look at yours) the procedure for default letters is laid out.
Normally this is in paragraph 22 and will read something like this:
Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrowerís breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property.
The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.
So the default notice/default letter must tell you the following items:
- What the default is that you have supposedly committed — is it not making payments, is it not keeping insurance, etc.
- What you must do to fix (“cure”) the default
- The deadline date to fix/cure the default and it must be at least 30 days out from the date of the letter
- If you do not fix the default, then the loan can be accelerated and your home foreclosed
- You must also be told if the loan is accelerated, you have the right to reinstate
- And you have the right to bring a court action to let the judge know about any defenses you have to the default or acceleration or the foreclosure sale
Defects to look out for in the notice of default
Simply look at your default letter or notice of default and put it side by side with your mortgage. Compare the two and see if the language in your default letter matches your mortgage — normally paragraph 22 that is quoted above.
The biggest area we see defects in a notice of default relate to the right to bring a court action.
Here are what we often see in the default letter:
“You also have the right to assert in foreclosure, the non-existence of a default or any other defense to acceleration and foreclosure”
Is this the same as the language above?
No!
Now the mortgage companies and foreclosure lawyers will say it does not matter — it is close enough. The Alabama Supreme Court has rejected this and said it must “strictly comply” with the mortgage.
Let’s look at the differences and see why they are important.
“Right to assert in foreclosure” compared to “Right to bring a court action”.
Alabama foreclosures are non-judicial — meaning no judge looks at them. (This is the opposite of Florida, for example).
No foreclosure lawsuit is filed.
So the letter is deceptive because it makes you believe that your mortgage company will sue you. And in that lawsuit you can put up a defense.
Not going to happen.
Because there is no foreclosure lawsuit.
So why is this a big deal?
Because you lose your house at the foreclosure sale.
And once you lose your house to foreclosure, you have fewer rights than you did 1 minute before foreclosure.
Look, this is no accident. The mortgage company intentionally changed the letter. The easy thing is to copy it exactly.
But your mortgage company changed it.
Why?
Because it does not want you to know that the best way to stop the foreclosure is to file a lawsuit against the mortgage company before a foreclosure. This is the secret that they do not want you to know about.
What will happen after the default letter (aka what are your options)?
Here are some options.
- Can you fix the default?
- Can you get some type of loss mitigation (loan modification, short sale, etc)
- File bankruptcy (normally a terrible option as we explain to lawyers who ask us)
- Sue under your mortgage so a judge decides whether there will be a foreclosure or not
What should you do right now?
If you have received a notice of default and you live in Alabama, give us a call at 205-879-2447.
Time is limited — every day you may be losing options to save your home from a foreclosure.
We will be happy to chat with you at no charge to help you understand how to stop the foreclosure on your home without filing bankruptcy.
Call us now at 205-879-2447 or contact us through this website so we can help you right away.
We look forward to chatting with you soon.
I just found that Alabama had a right to cure and gives me hope. My auction is set for next wensday. They gave me only one accelerated letter with Forclosures included Or permission to proceeed and have not contacted me or my wife other wise. I’ve been down south ( further lol ) working the hurricane and just returning last week to all of this. Tried to pay 2 times before I left Amd would t accept first time and of course the internet was done the second. There’s a lot that’s transpired I don’t think is morally correct much less legal At the end of my rope and have never ask for help. I did a while back ask the bank for a loan mod to keep any of this from happening but was told no. I even gave them the title to my car for relief to come but again was told “ my higher ups said no “ but never got my title. Like I said a lot of shady ness Even created me a second mortgage on the main house to correct a mistake they had made on my account that sat there for a few months. Then when they took it out ( corrected ) it put me negative like 11k. The mistake was for 12 k. This was the icing on the cake for me going broke for sure. Then no help after asking. And done work at the branch presidents home and moms home without any charge. Just a good ole hug as at the time I thought I was being helped. Yeah. I was helped. Main house would been last payment in October. Last month little over but now I ha e a 15 year note ( I woulda never , ever done) as I simply wanted it in my name from doing a tent to own for 18/19 years and was never comfortable. I was more comfortable that this lol. I even payed all fees to screw myself so to speak. Literally about to loose all I have worked for amd where my kids grew up. My last son joined the army about a year and a half ago but we are raising a grandson now. And my other son Amd brother ha e a double wide on the main property ( that would be payed off ) that’s free and clear. Bout to displace/ disrupt my whole family and nothing was there fault. It was mine for being a trusting soul. Learned a lot lol. Don’t even know if I helpable Or it’s to late etc. It would take 12-15 semi trucks to even move us Really Please advise if can. Thankyou
Eunice,
Sorry dealing with this — call us at 205-879-2447 and ask for Randi. If foreclosure is two days from now that’s pretty close but might be some options for you. We will help you if at all possible.
John Watts
Can notice of error or request for info be emailed and or typed. It says only if we dispute the validity of the debt or any portion and must be hand written within 30 days. The papers we got ( same papers / same day ) ha e 2 different dates lol. Thoughts on all please
Eunice,
First of all the RESPA letters (notice of error and request for info) can be typed or handwritten. No law that I have ever seen requires handwritten.
The 30 days validity language is your right under the FDCPA (Fair Debt Collection Practices Act) to dispute the debt.
You can do that and request information on the date of the foreclosure, etc. all in the same letter. You could send same letter to the foreclosure lawyer, the servicer (make sure and use the designated address for RESPA letters or the letters won’t be answered), etc.
Strongly suggest you get with a lawyer in your state if you are at this point — there are mistakes that can be made now that can’t be fixed. Some of the strategies we use to stop a foreclosure you only have one chance to get them right.
I don’t know what state you live in but in Alabama you want to do it right and I assume the same way in other states.
If you are in Alabama feel free to call us at 205-879-2447 (ask for Randi) — to be blunt we do not take many foreclosure cases as we find many folks are not willing to take all the steps necessary to stop a foreclosure but even if we can’t represent you we can give you some thoughts and suggestions that hopefully will help you.
(If you need a list of lawyers in other states — try this as a starting point — https://www.consumeradvocates.org/find-an-attorney).
Best wishes!
John Watts
Hello,
I am having a very difficult time with our mortgage company Mr. Copper with our lake house mortgage. Does your firm work with Georgia clients or just Alabama. Ourlake home is at Renolds plantation in greensboro, ga. Mr. Copper just keep telling us more lies.
Thanks for your time,
Missy Sennowitz
Missy,
I don’t practice in GA but do have a friend that can either help you or together we can possibly help you. (I can be admitted into GA for individual cases with permission of the court and by having a GA lawyer in the case).
Email me what is happening at john [at] wattsherring.com and I’ll see if anything I can do to help you.
Thanks!
John Watts
I never knew that I would receive a letter when I defaulted on my mortgage property. If I were to choose, I think I’ll get some professional help so that I’ll be able to resolve the promises that I broke with the company. Hopefully, this will help me save my home from foreclosure so that I won’t have to go back to a motel.