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Benefit from the Experience of Attorneys Bill and Valerie Sherman Former Assistant Attorney General, Assistant County Attorneys and Magistrate Judge

Business Owner Encounters a Bank That Wants to Foreclose

Question: I'm facing a foreclosure on my house in Cumming, Georgia. And we really like living in Forsyth. I don't think what the bank is doing is legal. I haven't paid my mortgage in 8 months but that's only because my business has gotten crushed by the economy. What happened was I quit my job selling cars in Buckhead to open a restaurant / diner.

I have never worked in a restaurant or owned one but we eat out all the time. Seriously, they know me by my first name at a bunch of steakhouses and seafood restaurants and Italian, Chinese and Japanese eateries. So I thought I'd have no problem making some serious money opening my own restaurant.

I had an awesome concept. I combined Southern cuisine with something really exotic, Scottish food. I've never been to Scotland or any of those places over there but my partner from Johns Creek thought it was a cool idea, and he has owned a Burger King, or at least worked in one. I know they make some pretty awesome whiskey over there. Anyway, we stayed open for almost three weeks.

So I kept telling the bank in Alpharetta not to worry and that I'd pay my mortgage. So even though I kept them up-to-date about everything, they still want to foreclose. Can a bank really foreclose if I've been letting them know where I stand? I call them almost every month and I even wrote them a letter!!!

Answer: Yes, the bank can foreclose if you are not making payments in conformance with your mortgage agreement. Although we have not reviewed your agreement, it most likely allows them to commence foreclosure proceedings if you are delinquent in paying your mortgage.

A bankruptcy filing would likely buy you some time. When a bankruptcy is filed there is a "stay" that goes into effect. For a foreclosure to occur, the mortgage company would have to make a motion to the bankruptcy court to lift the stay. Filing either a Chapter 7 or Chapter 13 would trigger a stay.

Another option is a loan modification. Sometimes a bank will modify your mortgage so your payments are decreased and / or your principal balance is lessened. The loan modification process usually starts with an application to the lender.

Please call us to discuss your situation and what options you may have.

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