Posted on: 14th Dec, 2005 01:31 am
The process of foreclosure in United States differs from state to state. In general, there are two types of proceedings - Judicial and Non-judicial foreclosures.
Judicial Foreclosure:
The process is carried out in case of mortgage transactions. In this process, the lender files a lawsuit against the borrower in order to get the property. The court then issues a summon and complaint against the borrower and other parties having subordinate rights on the property.
The borrower needs to file an answer to the lawsuit. Otherwise, the lender gets a judgment by default. The court then appoints a referee to calculate the total amount owed by the borrower. This includes the interest as well as the attorney fees. The lender puts up a notice of sale in newspapers and if this does not work out, the sale is conducted right in front of the courthouse by the referee. This is known as the Sheriff's sale.
The property is sold off to the highest bidder at the auction and the sale proceeds cover the costs of the sale and the unpaid debt. However, if the sale proceeds are not enough to cover the mortgage, then the lender may seek a deficiency judgment for the remaining debt. But in some states like California, this kind of judgment is prohibited.
Non-judicial Foreclosure:
The process is enforced in states where a deed of trust is used instead of mortgage. No court action is involved here. The lender makes use of the power of sale and files a notice of default along with the notice of the sale. The process takes around 90 days for completion.
There are several states which allow for both kinds of foreclosure. But generally, each state has only a particular type of foreclosure that is widely used.
Judicial Foreclosure:
The process is carried out in case of mortgage transactions. In this process, the lender files a lawsuit against the borrower in order to get the property. The court then issues a summon and complaint against the borrower and other parties having subordinate rights on the property.
The borrower needs to file an answer to the lawsuit. Otherwise, the lender gets a judgment by default. The court then appoints a referee to calculate the total amount owed by the borrower. This includes the interest as well as the attorney fees. The lender puts up a notice of sale in newspapers and if this does not work out, the sale is conducted right in front of the courthouse by the referee. This is known as the Sheriff's sale.
The property is sold off to the highest bidder at the auction and the sale proceeds cover the costs of the sale and the unpaid debt. However, if the sale proceeds are not enough to cover the mortgage, then the lender may seek a deficiency judgment for the remaining debt. But in some states like California, this kind of judgment is prohibited.
Non-judicial Foreclosure:
The process is enforced in states where a deed of trust is used instead of mortgage. No court action is involved here. The lender makes use of the power of sale and files a notice of default along with the notice of the sale. The process takes around 90 days for completion.
There are several states which allow for both kinds of foreclosure. But generally, each state has only a particular type of foreclosure that is widely used.
| States | Foreclosure Implemeted | Foreclosure Process Period (Days) | Foreclosure Redemption Period | Comments |
| Alabama | Judicial and Non-judicial | 49 -74 | 1 Year | Notices on non-judicial foreclosure are issued once a week for three weeks on a county-by-county basis. |
| Alaska | Judicial and Non-judicial | 105 | 1 year | Redemption period applies to cases of judicial foreclosure only. |
| Arizona | Judicial and Non-judicial | 102 | None | Foreclosure depends upon the document securing the loan. The foreclosure process takes 91 days in case of deed of trust. |
| Arkansas | Judicial and Non-judicial | 70 | 1 year | Redemption period can be applied on judicial foreclosure only. |
| California | Judicial and Non-judicial | 117 | 1 year | Only judicial foreclosure involves the redemption period. |
| Colorado | Judicial and Non-judicial | 91 | 75 days | Judicial foreclosure is not usually applied. |
| Connecticut | Judicial | 62 | Court decides | Only judicial foreclosures are possible, either by a suit in equity for strict foreclosure or by a court decree of sale. |
| Delaware | Judicial | 170 - 210 | None | - |
| District of Columbia | Non-Judicial | 47 | None | A 30-day notice of sale is sent by certified mail before the foreclosure starts. |
| Florida | Judicial | 135 | None | Judicial foreclosure involves services by the sheriff, a judgment of foreclosure and sale, advertising, public sale, and then the issue of a certificate of sale and certificate of title. |
| Georgia | Judicial and Non-judicial | 37 | None | Advertising related to foreclosure must appear for 4 continuous weeks before the first Tuesday of the month,that is when the foreclosure sale takes place. |
| Hawaii | Judicial and Non-judicial | 220 | None | Judicial foreclosure is used rather than powers of sale for both mortgages and agreements of sale. |
| Idaho | Judicial and Non-judicial | 150 | 1 Year | - |
| Illinois | Judicial | 300 | 90 days | - |
| Indiana | Judicial | 261 | None | Execution of judgments in judicial foreclosure varies from 3 months after filing of the complaint in cases involving mortgages drawn up since July 1, 1975, to 6 months for those taken between January 1, 1958, and July 1, 1975, to 12 months for those drawn up before that. The highest bidder receives a Sheriff's deed after the sale is executed. |
| Iowa | Judicial and Non-judicial | 160 | 20 days | Lenders prefer mortgages because deeds of trust do not circumvent judicial foreclosure. |
| Kansas | Judicial | 130 | 1 Year | - |
| Kentucky | Judicial | 147 | 1 Year | Any security instrument requires a decree in equity for its enforcement. |
| Louisiana | Judicial | 180 | None | The Sheriff provides successful foreclosure sale bidders with an adjudication. |
| Maine | Judicial | 240 | 90 days | Foreclosures may be initiated by any of the following: An act of law for possession; entering into possession and holding the premises by written consent of the mortgagor; entering unopposed and taking possession in the presence of two witnesses; giving public notice in a newspaper for three consecutive weeks and recording its copies in the Registry of Deeds, and then recording the mortgage within 30 days of the final publication; or by a bill in equity (special cases). In each case, the creditor must record the foreclosure notice within 30 days. |
| Maryland | Judicial | 46 | Court decides | Security instruments can include a private power of sale. |
| Massachusetts | Judicial | 75 | 112 days | Creditors forced to foreclose can take advantage of the private power of sale, but they may foreclose through peaceable entry, that is by entering unopposed in the presence of two witnesses and taking possession for 3 years. Or else, the foreclosure may take place through the judicial writ of entry (which is rare). Cautious creditors will foreclose through both power of sale and peaceable entry. |
| Michigun | Non-Judicial | 60 | 1 Year | Private foreclosure is allowed; it requires advertising for 4 successive weeks and a sale at least 28 days following the date of first publication. |
| Judicial and Non-judicial | 90 - 100 | 5 Year | - | |
| Judicial and Non-judicial | 90 | None | - | |
| Missouri | Judicial and Non-judicial | 60 | 1 Year | The publication of the sale notice should be given 21 days before foreclosure, during which the debtor may redeem the property or file a notice of redemption. The buyer involved in the foreclosure sale receives a trustee's deed. |
| Montana | Judicial and Non-judicial | 150 | None | A notice of default should be filed in case of foreclosure on deeds of trust which then requires a trustee sale to be held 120 days later. |
| Nebraska | Judicial | 142 | None | In case of deeds of trust, non-judicial foreclosure occurs and the process usually takes 90 days. |
| Nevada | Judicial and Non-judicial | 116 | None | In foreclosure a notice of default is recorded and mailed within 10 days. Then there is a 35-day reinstatement period after which, the beneficiary may accept partial payment or total payment for a 3-month period. The sale requires advertising for 3 consecutive weeks before it is executed. |
| New Hampshire | Non-Judicial | 59 | None | Judicial foreclosure is rare. Lenders may also foreclose through whatever power of sale is written into the mortgage originally. Entry, either by legal action or by taking possession peaceably in the presence of two witnesses, is possible under certain conditions specified by law. |
| New Jersey | Judicial | 270 | 10 days | - |
| New Mexico | Judicial | 180 | 30 - 270 | - |
| New York | Judicial | 445 | None | - |
| North Carolina | Judicial and Non-judicial | 110 | None | - |
| North Dakota | Judicial | 150 | 6 Months to 1 Year | - |
| Ohio | Judicial | 216 | None | - |
| Oklahoma | Judicial and Non-judicial | 186 | None | Foreclosures may also take place by power of sale provided the mortgage or the deed of trust allows it. |
| Oregon | Judicial and Non-judicial | 150 | 6 Months | The attorneys act as trustees in case of non-judicial foreclosures. |
| Pennsylvania | Judicial | 270 | None | - |
| Rhode Island | Judicial and Non-judicial | 62 | None | The power-of-sale provision stated in mortgage agreement are applicable in foreclosure. |
| South Carolina | Judicial | 150 | None | Foreclosure sale is executed on the first Monday of every month. It follows the publication of a notice once a week for 3 successive weeks. |
| South Dakota | Judicial and Non-judicial | 150 | 30 days to 1 Year | Foreclosure may occur through the power-of-sale provision provided in certain mortgage agreements. Sheriff's sale follows the publication of notice by 30 days. |
| Tennessee | Non-Judicial | 40-45 days | 2 Years | Foreclosures handled as per trustee sale provisions takes place within 22 days from the first publication of the notice until the public sale. |
| Texas | Judicial and Non-judicial | 27 | None | Foreclosure sale takes place at the courthouse on the first Tuesday of the month. |
| Utah | None | 142 | Court decides | - | Vermont | Judicial | 95 | 6 Months to 1 Year | - |
| Virginia | Judicial and Non-judicial | 45 | None | - |
| Washington | Judicial and Non-judicial | 135 | None | In case of deeds of trust, a notice of default is sent first and the notice of sale is issued 30 days later. The notice of sale must be recorded, and mailed at least 90 days before the sale. The sale cannot take place before the completion of 190 days after the actual default. |
| West Virginia | Non-Judicial | 60 - 90 | None | Foreclosure takes place within a month. |
| Wisconsin | Judicial and Non-judicial | 290 | 1 Year | The foreclosure requirements are stated in the mortgage agreement. Lenders waive the right to deficiency judgment in order to reduce the redemption period to 6 months. |
| Wyoming | Judicial and Non-judicial | 60 | 6 Months to 1 Year | Residential foreclosures take place within 120 days. |
Hi all
Judicial foreclosure is quite common when neither the mortgage nor the trust deed has the power of sale clause, thereby forcing the lender to take the borrower to court. But non-judicial foreclosure does not involve the court, rather the foreclosure process is conducted outside the court system.
Thanks,
Jill
Judicial foreclosure is quite common when neither the mortgage nor the trust deed has the power of sale clause, thereby forcing the lender to take the borrower to court. But non-judicial foreclosure does not involve the court, rather the foreclosure process is conducted outside the court system.
Thanks,
Jill
In states like California where foreclosure on the deed of trust limits the amount of sale proceeds a lawsuit for judicial foreclosure may help the lender to recover the money if it was secured by the debtor's property.
How likely is it for the court to grant a redemption for the owners to stay in the home for a period of time?
Hi AT,
It depends on your state laws and your particular situation if the court will grant you a redemption period. Generally, if your state foreclosure laws allow a borrower a redemption period, chances are that the court will also allow you a certain period of time to redeem your property.
It depends on your state laws and your particular situation if the court will grant you a redemption period. Generally, if your state foreclosure laws allow a borrower a redemption period, chances are that the court will also allow you a certain period of time to redeem your property.
approximately how long after sheriff sale in the state of FL am I allowed to remain in the home? How much notification is given prior to final day out of property?
is there a way to avoid a dj after the auction has occured? where can I find the amount and purchaser info of my foreclosure?
Hi elc,
Judicial foreclosures in Florida take about 135 days to complete. In certain cases, the court may also allow you a redemption period during which you can buy the property back on payment of a certain sum of money. However, the courts rarely provide you with such redemption period. In Florida, the court can review the foreclosure sale to make sure that the fair price has been paid. It generally happens within 10 days of the sale of the house. During this time, you can object to the foreclosure sale if proper procedures were not followed. Thus, after the foreclosure sale, you are expected to get a maximum of 10 days to vacate the property. You may have to vacate early depending on your particular situation.
The lender will come after you with a deficiency judgment only if they think you are capable of paying off the difference. You may file bankruptcy to get the deficiency discharged. But it will damage your credit to a great extent. You can get the foreclosure related information on the 1099A Form which your lender will send you.
Thanks,
Jerry
Judicial foreclosures in Florida take about 135 days to complete. In certain cases, the court may also allow you a redemption period during which you can buy the property back on payment of a certain sum of money. However, the courts rarely provide you with such redemption period. In Florida, the court can review the foreclosure sale to make sure that the fair price has been paid. It generally happens within 10 days of the sale of the house. During this time, you can object to the foreclosure sale if proper procedures were not followed. Thus, after the foreclosure sale, you are expected to get a maximum of 10 days to vacate the property. You may have to vacate early depending on your particular situation.
The lender will come after you with a deficiency judgment only if they think you are capable of paying off the difference. You may file bankruptcy to get the deficiency discharged. But it will damage your credit to a great extent. You can get the foreclosure related information on the 1099A Form which your lender will send you.
Thanks,
Jerry
i am letting a house go that i am on the deed through rights of survivorship and not on the mortgage can i still stay in the home during the foreclosure are there terms different?
Hi klowe,
You can stay in the home while the property is in foreclosure but after the property is sold off, then you'll have to leave the property.
Thanks
You can stay in the home while the property is in foreclosure but after the property is sold off, then you'll have to leave the property.
Thanks
How long of a redemption period do i have,if any at all in South Carolina?
As far as I know, South Carolina law does not allow a borrower to redeem his or her property once a foreclosure sale has been finalized by the lender.
we have a 10 day to vacate notice stating that our home was purchased at public auction by our mortage company in circiut court. we were unaware of this until we recieved the letter. we live in va and yes we are behind in payments. we were working towards a loan modification when this happend. are we done with no other options or is there something we can do
Hi gina,
Didn't the lender inform you that your property will be sold off at a foreclosure auction? It is mandatory for the lender to inform you if he plans to sell off your property to recover the dues. Also, as you were negotiating with the lender for a loan modification, he won't be able to foreclose the property. It's quite strange that he has done so.
You will have to contact the lender and check out if you can redeem the property. You will have to pay off the delinquent dues in full along with the late fees and other charges. This will help you in recovering the property.
Thanks,
Jerry
Didn't the lender inform you that your property will be sold off at a foreclosure auction? It is mandatory for the lender to inform you if he plans to sell off your property to recover the dues. Also, as you were negotiating with the lender for a loan modification, he won't be able to foreclose the property. It's quite strange that he has done so.
You will have to contact the lender and check out if you can redeem the property. You will have to pay off the delinquent dues in full along with the late fees and other charges. This will help you in recovering the property.
Thanks,
Jerry
I have looked through the S.C. Code of Laws and while I do see information about the deficiency judgment as it relates to foreclosure, I cannot find anything in the Code that addresses if there is a *time period* within which a lender has to file a deficiency judgment. Can anyone direct me to a source?
In California each home are serve different. How would I know if I can do a lis pending on my property for a redemption? How does it work? and do I have to hire a lawyer?