We bought some land a few years back and mortgaged through the bank for several years we have been struggling to stay afloat and pay the mortgage since we are now a one income household. We understand our credit will take a hit, but the mortgage company refuses to do a deed in lieu. We will most likely foreclose on the land, but can the mortgage company sue us (judegment) because we do not have the money to pay the loan? Can we ever recover credit wise?
Real Estate Attorney
I am going to refer you to an article from a few years ago that should answer your question.
The short answer - see an attorney to understand the full impact of a foreclosure. A foreclosure is something the lender does to force a sale of the real estate to help pay off the promissory note. If the sale of the property does not produce enough money to pay back the bank what they are owed, then the bank can sue you for the difference -- something called a "deficiency judgment".
See the link below
This advice is not specific and is generic in nature and as such should not be relied upon unless given by an attorney you have specifically retained and who has all of the background information necessary to render an opinion to you.
The mortgage creditor most definitely can pursue you for a deficiency judgment, and it does not have to file a separate lawsuit to do that - it can request a deficiency judgment at the end of the foreclosure action. Once it gets a deficiency judgment that has a potential life of 20 years, and can be used to levy on any non-exempt assets you own or acquire in the future, including motor vehicles and bank accounts, and might be able to garnish your wages. When or whether your credit would recover is speculative at best, but you have a more serious issue than that, because if the creditor gets a deficiency judgment, it will be able to keep coming after you until it has recovered the entire judgment, which will continue to accrue interest, and to which all current and future collection costs can be (and will be) added.
If you hire a good attorney to defend against the foreclosure case, it might be possible to negotiate a waiver of the deficiency with the creditor in return for allowing the foreclosure. This is not simple or a sure thing by any means. The bottom line is that you need a good attorney to have a shot at achieving a good result.
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
Real Estate Attorney
If you signed a Note promising to pay the lender a sum back that they loaned to you, then yes they can sue you. If you entered into a mortgage to secure the land for the payment on the note and you stopped paying, then the bank can sue you to take the land to satisfy a portion of the debt you owe them. If they foreclose and they do not make enough money back, then you may be responsible for the difference. The better suggestion would be to try and short sale it or offer the bank a short payoff in exchange for them writing off the loan. But there are tax consequences to this alternative. Consult with a real estate attorney to see what options are available.