HOME OWNERSHIP ISSUES FOR DOMESTIC VIOLENCE SURVIVORS

Transcription

1 HOME OWNERSHIP ISSUES FOR DOMESTIC VIOLENCE SURVIVORS PREPARED BY: LISA MATUKAITIS, STAFF ATTORNEY BATTERED WOMEN S JUSTICE PROJECT - CIVIL PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE SEPTEMBER 2004

2 HOME OWNERSHIP ISSUES FOR SURVIVORS OF DOMESTIC VIOLENCE BATTERED WOMEN S JUSTICE PROJECT/CIVIL LISA MATUKAITIS, STAFF ATTORNEY SEPTEMBER 2004 I. INTRODUCTION As the survivor s attorney or advocate, you need to have a conversation with her about her short and long term goals. Some of the considerations in developing an appropriate, client-driven strategy to maintain her housing include: If she owns the house or is on the lease, does she want to continue to live there? Does your client want to, and can she afford to, make the monthly mortgage payments or rent payments? What if she gets housing relief in the protection order, but the batterer does not pay according to the terms of the order? What is her plan for making payments on the house once the protection order expires? Will she consider selling the house before it is foreclosed upon? Is bankruptcy a viable option for her if she can t afford to make her mortgage payments? II. OBTAINING HOUSING RELIEF THROUGH PROTECTION ORDERS A. Orders to Vacate 1. Several state statutes authorize orders to vacate and stay away from the survivor s home, regardless of ownership or lease agreements. 2. Some laws, however, limit the scope of these provisions to circumstances in which the perpetrator has no ownership rights, or, in a case involving rental property, does not have his name on the lease. Home Ownership Issues for Survivors of Domestic Violence Page 2

3 3. The following jurisdictions have statutes that specifically authorize the issuance of a protection order that directs the defendant to vacate a shared residence: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin. 4. Of course, the financial implications for the survivor, once her batterer is ordered to vacate their shared residence, can be severe. If she is financially dependent upon him and she does not have an adequate income, savings or alternate resources, a court order that evicts her batterer but leaves her without any practical means to manage financially in the immediate aftermath of the abuse is inadequate. B. Future Rent or Mortgage Payments 1. In many states, it is possible to obtain a protection order that also directs defendant to continue to make mortgage or rent payments or, in the alternative, to provide suitable alternative housing for the survivor and/or his children. 2. In these cases, most often these remedies are available to plaintiff where the court finds there is a duty to support the victim and/or children. 3. For instance, certain state statutes include specific authority for the court to direct defendant to continue making rent or mortgage payments as may be necessary: Indiana, Missouri, Nevada, New Hampshire, New Jersey and Pennsylvania. Home Ownership Issues for Survivors of Domestic Violence Page 3

4 C. Suitable Alternative Housing for the Survivor and Her Children 1. In the alternative, it may be appropriate that defendant be directed to provide suitable housing arrangements for his victim and/or children. 2. Some state statutes contain specific authority for the issuance of a protective order with this type of relief. 3. For instance, the issuance of a protective order directing defendant to provide suitable alternative housing for a survivor is specifically authorized by statute in: Alabama, Georgia, Iowa, Kansas, Maine, Mississippi, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia and Wyoming. 4. But, this legal option may not be available to a survivor who, for instance, is not legally married to her batterer. Moreover, what if these specific legal options cannot address the survivor s needs, as a practical matter? For instance, what if she and her family have resided together in a public housing unit and her batterer lacks sufficient income to pay for separate housing for her and the children (or, for that matter, to continue paying the rent or mortgage on his own), or what if the survivor is subjected to a greater risk of danger and/or fear based on the continued (financial) relationship imposed by the court? D. Advocacy Points 1. Housing is necessary for the continued safety and security of the survivor (and her children). 2. It is a proper and necessary exercise of the court s jurisdiction to address the victim s housing needs necessitated by the abuser s violence and to make every effort to reduce a heightened risk of future violence. 3. Allowing an abuser to stay or granting possession to the abuser would make the court complicit in possibly forcing the victim out of her home and reward him for his bad behavior. Home Ownership Issues for Survivors of Domestic Violence Page 4

5 4. Referral or deference to another court to determine the housing/possession of property issue(s), will cause unnecessary delay and denies the victim/survivor an effective remedy. III. IMPACT OF FORECLOSURE If your client is unable to make her mortgage payments, the lender may institute foreclosure proceedings against her. Foreclosure means that the lender files a court action to repossess the house. Foreclosure proceedings are driven by state law. Become familiar with your state law governing foreclosures, along with your local court procedures. Always assess whether your client may be able to raise a defense or claim against the lender. These are some of the defenses that may be available in your state. A. Equitable Defenses Your client may be able attack the foreclosure action by asserting an equitable defense. If she establishes a defense, she may be entitled to an injunction to stop the foreclosure action. B. State Law Protections and Assistance. Some states have mortgage assistance programs. For example, Pennsylvania has the HEMAP program which provides emergency mortgage assistance. In addition, some states have bans against foreclosures, which give homeowners temporary relief for a short period of time. C. Collateral Attacks Your client may be able to assert a collateral attack and sue the judgment creditor for damages. Some examples of collateral attacks are violations of consumer protection laws, misrepresentation, deception, illegality, unconscionability, or recoupment, D. Affirmative Claims 1. Violations of the Truth in Lending Act ( TILA ); 2. Violations of the Homeownership and Equity Protection Act (HOEPA); 3. Violations of the Equal Credit Opportunity Act ( ECOA ); 4. Discrimination under the Fair Housing Act ( FHA ); or Home Ownership Issues for Survivors of Domestic Violence Page 5

6 5. Other federal or state law violations. E. Staying the foreclosure proceeding. Your client may be able to stay the foreclosure proceeding. In most instances, filing for bankruptcy operates to produce an automatic stay of the foreclosure proceeding. 11 U.S.C. 362(a). F. Results of Foreclosure. If the fair market value of the property is less than the amount your client owes on the home, a court can award a deficiency judgment against your client. As a result, your client could lose her home and still owe the lender money. G. Advocating with Lenders If your client cannot make payments, you may be able to advocate for her with the lender. Call the lender and explain your client s situation. The lender may negotiate a temporary delay in payments or a permanent loan restructuring. In addition, your client may qualify for a special forbearance. Your client may also be able to refinance, with a lower interest rate and smaller monthly payments. H. Federally insured mortgages. If your client has an FHA, VA loan, Rural Housing Service, or a FMHA insured mortgage and is having trouble making her mortgage payments, she may be eligible for special programs. Borrowers under these programs have special rights not generally available to borrowers with private mortgages. For instance, she may be able to obtain a one-time payment from the FHA-Insurance fund to bring the mortgage current. If the mortgage is FMHA guaranteed, your client may be able to resist foreclosure by securing a moratorium for up to two years. IV. BANKRUPTCY Bankruptcy is an option for debt relief for many people. Family lawyers and advocates need to understand the ways that battered women can be impacted by bankruptcy. For instance, she may decide to declare bankruptcy to discharge her debts. Her batterer may declare bankruptcy, which could impact her housing situation and could be used as a tactic to stall their pending family law proceedings. Or, they could both declare bankruptcy together, which can raise safety concerns. Home Ownership Issues for Survivors of Domestic Violence Page 6

7 A. Overview of Bankruptcy There are four main types of bankruptcies for individuals. Chapter 7 is liquidation. Chapter 11 is for businesses and individuals with excessive debt. Chapter 12 is for family farmers reorganization. Chapter 13 is for reorganizations for individuals with larger debts. It requires debtors to come up with a plan to pay back debts over a period of time. B. Non-dischargeable debts: Most, but not all debts, are wiped out by bankruptcy, so that debtors have a fresh start. Examples of debts that are not dischargeable include: C. Exemptions Support awards Marital agreement terms (possibly) Intentional Torts Student Loans The Bankruptcy Code provides many exemptions, which means that debtors can keep the property. These exemptions include: Homestead; D. Automatic stay Alimony and support; Social security and disability payments; Automobile; and, Furniture, cash, jewelry. Filing a bankruptcy petition results in an automatic stay. During this period, debtors have some breathing room and may not have to make payments on their debts at issue in the petition. In general, the stay applies to domestic relations issues. E. Safety considerations Home Ownership Issues for Survivors of Domestic Violence Page 7

8 If they file a joint petition, physical safety may be a concern because they may have to be physically present together at any required hearings or court appearances. The bankruptcy is a public document, which may raise safety concerns. If she is concerned about disclosing her location, she may be able to file the bankruptcy petition under seal. V. ASSISTANCE PROGRAMS Attorneys and advocates need to develop creative solutions to survivors housing needs. Assistance programs, through state governments or nonprofits organizations, may offer some solutions to your clients short and long term housing and economic needs. A. Relocation Assistance Programs Contact your state domestic violence coalition to find out whether there is ha relocation assistance program for survivors of domestic violence. Some states crime victims compensation programs may provide funds for emergency funds for housing, transportation, and moving costs. Pennsylvania s emergency fund, for example, allows victims of crime to apply for up to $1,500 in emergency assistance per claim. B. Rental Allowance Programs Many state departments of housing and community development have Rental Allowance programs. Rental Allowance Programs provides grants to localities to provide subsidies to low-income families who are experiencing an emergency housing need. Typically, the subsidies are monthly for up to a year to help families maintain housing and become self-sufficient. C. Individual Development Accounts Many states have individual savings account programs to help lowincome individuals and families become self-sufficient and build assets. Eligibility for these programs is typically limited to 200% of the federal poverty guideline. A typical IDA program matches funds deposited by an individual. At the end of the term, individuals can use the money for many purposes, including buying a home. D. Mortgage Assistance Programs Cities and counties may offer a first-time homebuyer grant or loan to help with down payments and closing costs. Sometimes, these grants are recoverable which means that if your client sells the Home Ownership Issues for Survivors of Domestic Violence Page 8

9 home within a certain time frame, the grant has to be repaid at closing. Eligibility is typically limited to low-income homebuyers. Some states have emergency mortgage assistance programs, which typically provide eligible applicants assistance with paying their mortgages. E. Rural Housing Repair and Rehabilitation Loans The United States Department of Agriculture offers a Rural Housing Repair and Rehabilitation Loan. The loans are for very low-income rural residents who own and occupy a home that needs repair. The loan can be up to $20,000 at 1% interest for up to 20 years. Homeowners who are 62 or older can apply for a grant of up to $7,500. F. Utility Assistance Programs Find out if your client can qualify for the Low income Home Energy Assistance Program. LIHEAP is a federally funded program to help low income people pay for heating and cooling needs. Eligibility for the program varies by state, and can be obtained by calling your state s LIHEAP Coordinator. The method of payment of utility costs varies by state. For example, in Pennsylvania - the payment is mailed directly to the utility company and only in some circumstances, will it be mailed to the participant. A list of LIHEAP state contacts is provided in the Appendix to this manual. Home Ownership Issues for Survivors of Domestic Violence Page 9