When a borrower takes out a loan secured by collateral, they sign a secured promissory noteโa legal contract that outlines their promise to repay the debt. But what happens when a borrower fails to make payments? If youโre a lender or borrower dealing with a loan default, understanding your legal options is critical.
This blog post breaks down what happens when a borrower defaults on a secured promissory note, what lenders can do to recover their money, and how borrowers might protect themselves.
What Is a Secured Promissory Note?
A secured promissory note is a legally binding agreement where a borrower agrees to repay a loan, and the lender holds collateral as security in case of default. The collateral can be:
- Real estate (mortgage-backed loans)
- Vehicles
- Business assets
- Equipment
- Stocks or investments
The key distinction between a secured and an unsecured promissory note is that secured notes give the lender the right to seize the collateral if the borrower fails to pay.
What Happens When a Borrower Defaults?
When a borrower defaults on a secured promissory note, the lender has legal options to recover their money or seize assets. Hereโs what typically happens:
1. The Lender Issues a Notice of Default
The first step is often a formal notice informing the borrower that they are in default. This notice gives the borrower a chance to cure the default (i.e., catch up on payments) within a specific period.
2. The Lender Can Seize the Collateral
If the borrower does not cure the default, the lender can repossess or foreclose on the secured asset:
- If the collateral is a house or property: The lender may initiate foreclosure proceedings.
- If the collateral is a vehicle or equipment: The lender can repossess the asset.
- If the collateral is business assets or stocks: The lender may liquidate them to recover the debt.
3. The Lender Can File a Lawsuit for the Deficiency
If the sale of the collateral does not fully cover the remaining debt, the lender may file a lawsuit for a deficiency judgmentโforcing the borrower to pay the difference.
4. The Borrowerโs Credit Is Impacted
A default on a secured promissory note damages the borrowerโs credit score, making it harder to obtain future loans. A foreclosure, repossession, or deficiency judgment can stay on a credit report for up to seven years.
5. The Borrower May Negotiate a Settlement
In some cases, borrowers can negotiate with lenders to:
- Modify the loan terms
- Settle the debt for a lower amount
- Arrange a repayment plan to avoid losing the collateral
Lenders often prefer settlements over lengthy legal battles, making negotiation a viable option.
Can a Borrower Stop a Lender From Seizing Collateral?
Borrowers facing default do have legal options to delay or prevent asset seizure, including:
- Loan Modification or Forbearance: Some lenders allow borrowers to temporarily pause or reduce payments.
- Bankruptcy Protection: Filing for bankruptcy can halt foreclosure or repossession and may restructure debt.
- Legal Defenses: If the lender failed to follow legal procedures, misrepresented the loan terms, or violated debt collection laws, the borrower may have grounds to fight the default.
Seeking legal counsel early in the process is crucial to understanding all available options.
Lender Rights: How to Recover Debt From a Defaulted Loan
Lenders who hold secured promissory notes have several options to recover unpaid debt:
1. Enforce the Security Agreement
The lender can legally seize the collateral outlined in the promissory note without going to court, as long as they follow state-specific repossession or foreclosure laws.
2. Pursue a Deficiency Judgment
If the sale of collateral does not cover the full loan balance, the lender may sue the borrower for the remaining amount.
3. Work Out a Settlement
Instead of pursuing foreclosure or repossession, lenders can negotiate a lump-sum settlement or a loan modification with the borrower.
4. Hire a Debt Collection Attorney
If the borrower refuses to pay, a litigation attorney can file a lawsuit to force payment through garnishments, liens, or other legal means.
Final Thoughts: Get Legal Help if You’re Dealing With a Loan Default
If you’re a borrower facing default or a lender trying to recover debt, it’s critical to understand your legal rights and obligations. Loan defaults can quickly spiral into foreclosure, repossession, or lawsuits, making it crucial to act quickly and strategically.
- For borrowers: Exploring options like loan modifications, settlements, or legal defenses can help protect your assets and credit score.
- For lenders: Knowing how to enforce a secured promissory note ensures you recover what you’re owed while complying with legal procedures.
If youโre dealing with a defaulted loan in Florida, contact an experienced attorney in Miami at 305-570-2208.
You can also contact trial attorney Eduardo A. Maura at eduardo@ayalalawpa.com.
Schedule a case evaluation online here.
[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].
