How Can I Delay a Foreclosure?

Whether you're going through a judicial or nonjudicial foreclosure, you might be able to delay the process by using one or more different tactics, like applying for a loan modification or taking advantage of a state mediation law. A delay might provide you with sufficient time to work out a way to avoid foreclosure or figure out a solution to the problem that caused you to fall behind on your payments in the first place.

If you can't derail the foreclosure permanently, you'll at least get some extra time to live in the home while you save up to move elsewhere.

Different Options for Delaying a Foreclosure

A few potential strategies for delaying a foreclosure include using the maximum time allowed when challenging the foreclosure in court, submitting a loss mitigation (foreclosure avoidance) application, participating in mediation, asking a court to delay the foreclosure, and filing for bankruptcy.

Challenging the Foreclosure in Court

You can delay a foreclosure by challenging it in court either by filing an answer in a judicial foreclosure or filing your own lawsuit to stop a nonjudicial one. You must have some legal basis or defense for fighting the foreclosure like you think the servicer didn't send you a required foreclosure notice or is charging you improper fees.

Servicers and lenders often make errors during foreclosures. If the servicer made a significant mistake, a court might even force it to start over from the beginning, delaying the process even more.

Judicial foreclosures. If your foreclosure is judicial, jumping into the existing lawsuit is easier and less expensive than challenging a nonjudicial foreclosure. You'll probably need help from a foreclosure lawyer to determine if the servicer made an error in the procedures or violated the law and to help raise any issues in court.

While some people choose to file an answer to a foreclosure complaint "pro se" (without a lawyer), most people will need a lawyer to help file an answer and effectively handle the entire case.

Nonjudicial foreclosures. If you're facing a nonjudicial foreclosure, you'll likely need to hire an attorney to help you initiate a lawsuit to challenge the foreclosure.

Applying for Loss Mitigation

Under federal mortgage servicing laws, if you submit a loss mitigation application to your servicer after foreclosure starts but more than 37 days before a foreclosure sale, the servicer can't ask a court for a foreclosure judgment or order of sale, or conduct a foreclosure sale, until:

• it informs you that you didn't qualify for any loss mitigation option (and your appeal, if you get that right, has been exhausted)
• you reject the loss mitigation offer that the servicer makes, or
• you don't comply with a loss mitigation agreement, like by failing to make payments on a trial modification.

Some states also have a law that prevents a foreclosure from going forward if the borrower submits a loss mitigation application.

Just applying for a foreclosure alternative probably won't buy you a lot of time, though. Generally, under federal law, the servicer must review your application within 30 days and can proceed with the foreclosure when any of the three conditions mentioned above are satisfied.

Also, the servicer doesn't have to review more than one loss mitigation application from you (unless you brought the loan current after submitting your previous application). So, if you previously applied, like during the 120-day preforeclosure period, an additional application won't stall the foreclosure. But if you qualify for a modification, the foreclosure will end if you make all payments under the modified agreement.

You probably don't need an attorney to submit a loss mitigation application. If you need assistance, a HUD-approved housing counselor can help you for free.

Participating In Foreclosure Mediation

Several states and local court systems have set up foreclosure mediation programs that offer settlement conferences and mediation for people in foreclosure.

Usually, these programs involve setting up a meeting between the servicer, the borrower, and a neutral mediator. The parties get together and try to resolve the situation. Generally, the foreclosure stops while mediation is ongoing.

You don't have to hire an attorney to represent you in mediation, but you may use one if you want an advocate in the process.

Ask the Court to Postpone the Foreclosure

While not common, you might be able to get a judge to delay a foreclosure if you're facing a significant hardship or you have a lot of equity in the property.

To get a judge to delay a foreclosure because you're going through a hardship, you'll have to prove that you're suffering a major financial problem that involves more than just losing your home. For example, if you have a severe illness and can't work, the judge might agree to give you some leeway. Your hardship will also probably have to be temporary. You'll need to convince the judge that you can eventually get current on the loan and resume making regular payments. Otherwise, the judge might decide to let the foreclosure go ahead if it looks inevitable that you'll lose the property in the future anyway.

Or if you have a large amount of equity in the property, a judge might give you a short postponement so you can sell the property. If a sale would bring in enough money to repay the entire mortgage debt, a judge might feel it's fair to let you sell the property.

Filing For Bankruptcy

You can stop a foreclosure in its tracks—at least for a while—by filing for bankruptcy. Filing for Chapter 7 bankruptcy will stall a foreclosure, but usually only temporarily. You can use Chapter 7 bankruptcy to save your home if you're current on the loan and don't have much equity. Otherwise, you'll just be able to delay a foreclosure by a few months unless you can modify the loan.

If you want to keep your home, a Chapter 13 bankruptcy could be a better way to go. Chapter 13 bankruptcy lets you pay off a mortgage "arrearage" (late, unpaid payments) over the length of the bankruptcy plan, which is usually three or five years. You can also attempt to modify the loan as part of a Chapter 13 bankruptcy.

If you've filed for bankruptcy within the past year, though, the automatic stay might be limited to 30 days or eliminated. To find out if filing for bankruptcy might be right for you, consider talking to a bankruptcy attorney.