Generation
Information About Legal Topics
Topic 136: How Can I Protect My Home From
Creditors?
(revised 10/98)
Your home may
well be your most valuable possession, and for this reason it
may be the possession most sought after by your creditors.
There are several ways your home might be taken from you by
your creditors, and you should be aware of what you can do to
prevent it.
Since very few of us can afford to pay
cash for a house, most of us will have to borrow a substantial
portion of the house's value in order to purchase it.
Whoever lends you the money to buy your house will have you
sign a promissory note and what's known in Missouri as a deed
of trust, which is similar
to a mortgage, and which will remain until the
whole loan is paid off. By signing the note and deed of
trust you agree that if you fail to make any payment, the
lender can require you to immediately pay the entire
loan. If this happens and you can't pay, the deed of
trust permits the lender to sell your house to the highest
bidder, and this can be and often is done before you know
what's happened. If you do find out your house is about
to be sold in this manner, it is possible to stop the sale or
get your house back after the sale, but to do so you must act
very quickly and usually before the sale has taken
place. Since the process is somewhat complicated, you
should contact a lawyer as soon as you find out your house is
being taken.
The same kind of problem can arise when
you borrow money from a finance company or a bank of when you
purchase home improvements on a time payment basis. In
each of these cases you will be asked to sign several
documents, and very often one of those documents is a second
deed of trust on your home. The result is nearly the
same as when you sign a deed of trust in connection with the
purchase of your home. That is, if you miss a payment
and can't catch it up, you can lose your house. However,
you do have some additional rights when signing a second deed
of trust. You may
have the right under federal law to completely cancel
the loan if you do so in writing within three business days of
signing the loan papers. This law also requires the lender or
seller to give you a written notice of your right to cancel .
This process can be tricky, and you should
consult a lawyer immediately if you do decide to cancel.
If you enter into
a contract to have home repair work done, even if you are not
required to sign a deed of trust, and whether or not it is a
cash contract or time payment contract, your home may still be
in danger. If the contractor is not paid according to the
terms of the contract, he may file what is known as a
mechanics lien on your house which could permit him to take
your house in much the same way as a deed of trust would
permit. And even if the contractor had been paid, the
same kind of lien might be filed on your house by
subcontractors or suppliers of materials who have not been
paid by the contractor. You can avoid this problem with
subcontractors and material suppliers by demanding from the
main contractor written lien waivers from all persons
supplying material or services for the work described in the
contract. Under Missouri law you must be given notice of
your right to request these lien waivers.
Of course you
must pay the city and county taxes on your house, and if you
don't, the city or county could also take your house and sell
it to pay the taxes owed. Again, if you act quickly
enough and follow the proper procedure, you may be able to
stop the sale or even get your house back after the sale, so
it's important to contact your attorney as soon as you are
notified that action is being taken.
One other way
your house could be lost is by sale after the recording of
what is called a judgment lien. Whenever you are sued in
any court for money and you lose the suit, the person who had
sued you can file a lien against your house, and your house
could be sold to satisfy the amount of the judgment against
you. If this should happen and if you are the head of
your family, you are entitled to claim what is called a
homestead exemption. In Missouri this means you may keep
the first $8,000 of the value of your house. Your attorney
should be consulted to make sure this homestead exemption is
properly claimed for you. |