Mortgage Foreclosures – Creditor or Debtor
Do I need an attorney if I am involved in a mortgage foreclosure?
Our firm is experienced in mortgage foreclosures. We represent both creditors (mortgagees) who bring the foreclosure action and debtors (mortgagors) who either contest the action or preemptively bring suit against the creditor.
South Carolina law provides that a foreclosure and sale can be brought to recover satisfaction for failure to repay money secured by real property and requires that the debt be established by a court of competent jurisdiction prior to the sale commencing. The court of competent jurisdiction is usually the County Master In Equity who conducts the judicial hearing to establish the debt and then sells the secured property and applies the sales proceeds to the indebtedness. Unless specifically waived, in writing, by the creditor (mortgagee), a deficiency judgment will be allowed. A deficiency judgment is a judgment against the debtor for any amount by which the mortgage exceeds the proceeds of a foreclosure sale.
The Master In Equity usually retains jurisdiction, after the foreclosure sale and award of deficiency judgment, to preside over supplemental proceedings brought by the creditor’s attorney to collect the monies owed under the deficiency judgment.
Our attorneys work closely with the Master In Equity’s office with our staff often in touch with the Master In Equity’s staff to ensure timely hearings and sales.
We also represent debtors (mortgagors) in mortgage foreclosures, particularly in the commercial setting. Defenses may include: (1) lost or missing payments, (2) acceptance of payment following foreclosure; (3) incorrect service of the pleadings, (4) failure to follow HUD/VA/FHA requirements, as applicable on certain loans, (5) inability to establish ownership of or being the proper entity to not only service the debt but collect the debt through judicial process, (6) invoking of statutory appraisal rights if not effectively waived in the note and mortgage instruments, and (7) jury trial demand on guaranty liability issues.
Our attorneys are familiar with debtor (mortgagor) defenses and have litigated those issues not only at the circuit court but also at the appellate court levels.