January 22, 2011
- When a property has mortgage liens placed against it, each lien takes a certain position, based on the order in which the mortgages were filed. For example, the mortgage filed first is in first position. The next lienholder is in second position, and is commonly called the second mortgage. If the first mortgage is paid off, the second mortgage moves into first position, and a third mortgage, if present, moves into second. Position indicates the order that the mortgages are paid off when the house is sold.
- If you are behind on your payments to the first mortgage company, eventually it will begin foreclosure proceedings. As the foreclosure process nears the finish, the property will be sold. When the first mortgage holder sells the property, it receives the proceeds of the sale, with any excess over the balance due on the first going to the second mortgage holder. Once all the liens have been paid off from the sale, any proceeds left go to the borrower, but that is rare. If the property is worth less than the value of the first mortgage, the second mortgage company receives nothing.
- The second mortgage holder can foreclose on a home just like the first mortgage holder. If there is sufficient equity, both the first and second liens are paid off. Even if there is not enough to completely pay off the second mortgage, many second mortgage holders may still initiate a foreclosure because they may get some money in the sale. If the value of the home is less than the balance of the first mortgage, there is no reason for the second mortgage holder to foreclose. It would receive nothing; in this case, the second mortgage holder is essentially unsecured.
- If your home is in foreclosure, and you want to try to keep it, you can use a Chapter 13 bankruptcy. Chapter 13 stops collections activity immediately, stopping the foreclosure until you can work out a payment arrangement with the mortgage company. If you have a second mortgage that is fully secured by the value of the house, you will have to pay that mortgage too, although some of the payment may be modified in the bankruptcy. If your second mortgage is partially secured, the bankruptcy judge may reduce the second mortgage balance to the amount that is secured by the house. If the house is underwater, and even the first mortgage is not fully secured, the bankruptcy judge may completely remove the second lien.
Background: Lien Position
First Mortgage Foreclosure
Second Mortgage Foreclosure
Chapter 13 Bankruptcy
by Ethan Leak