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Can a 2nd mortgage holder force a foreclosure if the 1st mortgage holder does not foreclose. I modified my loan with the 1st

Cincinnati, OH |

I had to stop paying on my mortgages because I lost my job that I had for 25 years. Our dried up because of what the banks did to to us all with the bad loans so I lost my job. Anyway I could not pay my loans for many months. I got a job but it is a lot less that I was making so I still could not pay my 2nd mortgage but I just got a loan modification with my 1st mortgage holder and they are now happy. In Ohio can a 2nd mortgage holder force a foreclosure if everything is OK with the 1st mortgage holder.

Attorney Answers 4


  1. If the second mortgage holder forecloses, the successful bidder at the auction takes the property "subject to" the 1st lien. You will no longer own the property and it is not necessary for the 1st mortgage holder to foreclose for you to lose the property.

    Actively practicing law in Texas. Inactive licenses in Arizona and Georgia. All answers are general in nature and no attorney/client relationship exists in this forum.


  2. Yes, if you are in default on the second mortgage, then the second mortgage can file a foreclosure action. In Ohio once the second mortgage receives judgment it can file to have the property sold at sheriff's sale. First. court cost and taxes will be paid from the proceeds. Then the first mortgage will be paid, and if there is anything left, the second mortgage is paid. Because the second mortgage does not get paid first they usually don't file a foreclosure.

    Attorney Sternberg is admitted to the practice of law only in the State of Ohio. His answering of this question does not constitute an attorney client relationship, nor can his answer be relied on since the question does not permit Attorney Sternberg to seek additional information necessary to render an legal opinion.


  3. Based on the facts you provided, there are several scenarios to consider:

    First, the second mortgage holder can certainly foreclose on their lien, however, if there is no equity beyond the value held by the senior lien holder this may be unlikely, however;

    Second, the second mortgage holder could file a foreclosure lawsuit in the hopes that your first mortgage holder does not answer the complaint, or;

    Third, the second mortgage holder could simply sue on the note, get judgment; and attempt to garnish wages or attach to some other property.

    In any event, these are certainly issues worth consulting with an experienced attorney.


  4. Yes. They can. Though the purchaser at auction will have to buy the property subject to the first mortgage.

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