Recent Blog Posts

Foreclosure Defense / Wrongful Foreclosure

Trey Cain Attorney Franklin TN — Fri, 13 May 2011 04:00:00 GMT

There's a difference between wrongful foreclosure and foreclosure defense. Wrongful foreclosure involves litigation between the borrower and the foreclosing lender after the foreclosure has taken place. Foreclosure defense involves strategies and possible litigation against the lender before foreclosure. Obviously, there is a big difference in someone's life before and after a foreclosure takes place, and the legal strategies and theories also involve big differences when one is thinking about how to implement the right strategy. Attorneys that do not understand the intricacies of the process or the motivaton of lenders at each stage after notice of default run the risk of succumbing to sophisticated lender defenses and will not provide the services that homeowner's need.

In the pre-foreclsure context, there are numerous strategies that can work to stop your overbearing lender from taking your home. If you are upside down in your mortgage, if you do not want to try and keep your home, and if you want to try and avoid the need to file bankruptcy, a short sale is an excellent way to accomplish the sale and conveyance of your home to get you out from under it. In order to do this successfully, you need a professional who understands the process to be able to effectively negotiate with your lender. The path you take to accomplish this will largely dictate your results. You can hire an attorney that may charge you fees on the front end, who will tell you that they understand how to require your lender to start listening to why they need to change their position and who will try to establish value by threatening litigation against your lender at the pre-foreclsoure stage. Alternately, my advice is to find a Realtor who knows and understands short sales and who has the business experience to handle not only the negotiation with your lender but the sale of your home in as expeditous a manner as possible. There are not many Realtors that fit this profile. In order to succeed, you need a full-time Realtor who is not engaged in another business or is handling real estate clients on a part-time basis.

There are numerous advantages to structuring your short sale this way. The most noteable advantage to you is that you get the professionalism of a team that can handle your short sale from start to finish and it won't cost you anything. That's right, you get better service and accomplishment of your objectives without it costing you anything. The reason that it does not cost you anything is because Realtors work on commission, not up-front fees. You might think that using a Realtor to negotiate with your lender might get you less than using an attorney, but the reality is that this is not usually the case. Realtors understand the market value of your home; attorney's don't. Realtors understand the market as it relates to the real estate lending process, most of the time better than attorneys do. And, a solid, professional Realtor will have a relationship with a title attorney (a distinct and specific area of law practice that is different than a "real estate" attorney-make sure your attorney owns and operates a title agency that handles real estate closings). The Realtor will likely get better legal advice from the title attorney he or she works with on a regular basis and they will be able to get the help of that attorney at no cost to you because the attorney will get paid for handling the closing when the Realtor sells your home rather than from your pocket up front.

If you need the services of a Realtor, a knowledgeable Middle Tennessee Realtor is Ross Winchel. You can find him at www.rosswinchel.com. Ross works with www.cainpllc.com and www.tennesseetitlellc.com, and we would most likely handle the legal work for your short sale if he lists your home and negotiates your short sale. Your lender ends up paying all of the necessary fees including commissions when it accepts less than what is owed on the property and allows it to close. Beware of Realtors who say they understand short sales; most do not. If you have spent any time negotiating with yor lender on any level, you probably already know that it is extraordinarily difficult to make any progress at all. Ross Winchel understands how to make progress. If you are facing foreclosure and you want to get out from under your house without having the foreclosure on your record, contact Ross Winchel to help you and he will in turn get Cain & Associates involved at the appropriate time.

Another useful strategy in stopping your foreclsoure before it happens is a Chapter 7 or Chapter 13 bankruptcy petition. The Bankruptcy Code is very useful when you have burdensome and oppressive debt over and above your mortgage. Bankruptcy becomes useful when even short selling your home will not get you out of financial trouble. There are times when a short sale can be useful even if you know you are going to file bankruptcy, but consultation with a bankruptcy lawyer in Franklin, TN is imperative to understand the intricacies of when doing so is in your best interest. If you are behind in your mortgage payments, you have lost your job or no longer earn enough to make your mortgage payments going forward, and you have other overwhelming debt, a short sale will probably not help you. In that case, a Chapter 7 bankruptcy would most likely be the best option.

Under a Chapter 7 bankruptcy, the foreclosure is cancelled, your mortgage debt is dicharged, you get the opportunity to vacate the home in an orderly manner and not by lender-forced eviction or foreclosure, and your debt is discharged in order to give you a fresh start. A Chapter 7 bankruptcy in Middle Tennessee typically takes about two to three months from filing of the petition to discharge. As long as the bankruptcy petition is pepared completely and competently by a bankruptcy attorney in Franklin, TN, the process is relatively straightforward.

Under a Chapter 13 bankruptcy, the foreclosure is cancelled and you get the opportunity to make a reasoned decision about whether you can keep your home. In a Chapter 13 bankruptcy, you repay some or all of your unsecured debt over either a three or five year repayment plan by making payments every month. If you can show that you make enough money to make your mortgage payments every month, even if in order to do that you have to stop making payments on unsecured debts (credit cards, medical bills, etc.), then you can get a repayment plan confirmed and there is not much your creditors can do about it. For some, keeping their home is very important, and even when you are behind on your payments, a Chapter 13 bankruptcy can allow you to catch up and keep your home. Contact a bankruptcy lawyer in Franklin, TN to find out more.

Save Your Home from Foreclosure

Trey Cain — Sat, 07 May 2011 18:15:00 GMT

A Chapter 13 bankruptcy can save your home, even if you are behind on payments. Filing bankruptcy stops a foreclosure sale in it's tracks, no matter how soon your foreclosure is scheduled to take place. It is not true that when a Chapter 13 bankruptcy or a Chapter 7 bankruptcy petition is filed, the debtors assets are liquidated. Even if you are behind on your payments, if you are employed and you can show that you can pay your mortgage (and the arrearage) over a 60 month payment plan, you can keep your home with a Chapter 13 bankruptcy. Most people who have been lucky enough to keep their jobs or who are recently employed, when their other debts are discharged, have enough money to pay their mortgage.

A Chapter 13 plan will be confirmed if you earn enough money to cover minimal monthly expenses plus payments on whatever secured property you choose to keep (i.e. your home or your cars). Your creditors do not get to choose what you pay. As long as your Chapter 13 plan conforms to the Bankruptcy Code, your creditors do not get to object to what they are repaid. A Chapter 13 bankruptcy can relieve the pressure that might cause you to succumb to creditors demands that in many cases results in the loss of your most important asset, your home. Contact a bankruptcy attorney in Franklin, TN to discuss your options before your home is foreclosed.

Bankruptcy Automatic Stay

Trey Cain — Sat, 07 May 2011 12:51:00 GMT

The automatic stay provisions of the U.S. Bankruptcy Code (See 11 USC §362) are some of the most powerful protections provided to a person or business filing a bankruptcy petition. It does not matter what Chapter you file under or whether you are an individual or business. The automatic stay goes into effect the second your petition is filed, and because your petition is filed electronically from your bankruptcy attorney's office, the automatic stay can go into effect at any time during the day or night depending upon when the petition is submitted.

The automatic stay requires all creditors who are trying to collect debts to immediately cease ALL collection activity. They cannot call, write, harass further, or make any further attempt whatsoever to collect any money you owe. The penalties to creditors for breaking the rules promulgated by the automatic stay are very severe. They can range from monetary sanctions, voiding the creditors debt, or even criminal prosecution in extreme cases. The Bankruptcy Code is often a person's most powerful ally in discharging or restructuring personal or business debts. It provides breathing room during the time it takes to get everything done. When used properly, the Bankruptcy Code can indeed give you a fresh start and change your life.

To creditors, you are an account receivable, a number, a mere blip on the radar screen of their business plan. Individuals should approach their financial system similarly; think of your personal economic circumstances as a business. Use the tools that are available to you to make good business decisions. When debts become unmanageable and your credit is already damaged, filing bankruptcy can be a good business decision. The automatic stay and other provisions of the Bankruptcy Code are excellent tools in your tool kit to use to your benefit. Contact a bankruptcy lawyer in Franklin TN at Cain & Associates, PLLC to find out how you can use these tools and get a fresh start in life.

Save your home from Foreclosure

Trey Cain — Sat, 07 May 2011 02:55:00 GMT

Saving your home from foreclosure is never easy. The options are numerous. You have been contacted by Realtors to short sell the property, you have worked tirelessy to negotiate with your lender to modify your loan(s) while speaking to the "professionals" at the the 1-800 customer service line, and your other creditors are nipping at your heels to collect payments that just aren't there. Your options are many, but your solutions seem few.

The perceptions about bankruptcy are misplaced. You think that filing bankruptcy is the worst possible solution. You feel embarrassed and ashamed. The United States Bankruptcy Code is a fresh start, not a failure. Nobody saw our current economic recession coming to the extent that it hit us. The Great Depression shaped our parents, grandparents, and great grandparents. The Great Recession shapes us similarly. Bankruptcy is desinged to provide a fresh start. Bankruptcy is the only area of law that is specifically mentioned in the United States Constitution. Contact a bankruptcy lawyer in Franklin, Tennessee to discuss your options. The bankruptcy code is a fierce weapon against unruly creditors. Filing bankruptcy is usually the last option, but it is often the only option, and it is usually a good option for those who are good candidates.

Welcome to our Williamson County Bankruptcy Blog

Williamson County Bankruptcy Attorney — Wed, 08 Sep 2010 23:28:00 GMT

We are pleased to announce the launch of our Williamson County Bankruptcy Blog with an RSS feed available here.