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Q&A: Getting a Deficiency Waved

Posted by attorney Benjamin Hillard

Successfully resolving a foreclosure suit and avoiding a deficiency judgment can be hard to predict because of numerous factors, not the least of which is the human factor. Judges are human and they all have different opinions on foreclosures, some appear pro-lender, and others pro-borrower.

However borrowers have the best chance of getting a deficiency judgment waived when they work with a lawyer through the foreclosure process instead of burying their head in the sand.

First, when the foreclosure is served a borrow typically has 20 days to respond to the summons. If a response is not filled, the bank can file a default and you have lost your opportunity to challenge that lawsuit, and the banks do not even have to notify you of the process moving forward.

However, when you work with a lawyer and respond to the summons within the time frame specified, a borrower's lawyer can put up a number of defenses* to possilbly reduce the principal balance. In addition, a foreclosure defense lawyer can apply legal pressure on the lender to avoid a deficiency judgment - or even get a loan modification, short sale, or deed-in-lieu.

So to stay informed of the process and have the best chance of avoiding a deficiency judgment, it is important for borrowers to work with a lawyer and respond to the summons in the time specified.

*Some of the defenses include banks not following their own guidelines and overvaluing properties.

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