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.


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