Foreclosure procedures

Lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the non-judicial process is far more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The process begins when the lender notifies their foreclosure attorney that a default has occurred.  The attorney then schedules the property for sale.  

Although not common in Alabama, lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues to resolve, such as a question of clear title, before the process can move forward.  The lender begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale process is directed by the court. 

The process can move very quickly in Alabama with a foreclosure timeline from notification to sale that averages only 49-74 days.  Some mortgage documents require the lender to notify the borrower before starting the foreclosure process, but not all, and notification is not required under state law. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender must post a Notice of Sale for a period of 21 days.  They can post in a newspaper, or at the courthouse and three other public places.  The lender usually sends a Notice of Sale to the borrower, but this is not required under state law.  Lenders also typically notify other lenders who may have additional mortgages with the borrower.  The foreclosure sale is held at the courthouse where the property will be sold to the highest bidder. 

During the foreclosure process, the borrower can reclaim their property right up until the day of sale by paying off their mortgage debt.  In addition, Alabama is a redemption state.  That means the borrower has the right to “redeem” the property (meaning, get their home back) up to one year after the foreclosure sale. 

 

 

Foreclosure Procedures

Lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the non-judicial process is far more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender has the right to begin the foreclose process as soon as the borrower is more than 30 days late.  The process begins when the lender files a Notice of Default and sends a copy to the borrower.  For out-of-court foreclosures, the process from notification to foreclosure sale typically takes only about 3-4 months. 

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, to resolve before the process can move forward.  Judicial foreclosures can also move very quickly in Alaska.  The lender can begin the foreclosure process before the borrower is even 30 days late.  The lender or their trustee begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare the borrower in default.  The lender sends a copy of the lawsuit to the borrower.  Once notified, the borrower has 20 days to respond.  If they fail to do so, the court will find for the lender and a foreclosure sale will be scheduled. 

Judicial foreclosures have become more common as falling home prices make it more difficult for the lender to sell a property for a price that will cover the borrower’s debt.  With non-judicial foreclosures the lender has no right to pursue a deficiency judgment (meaning, sue the borrower for the difference if the property sells for less than the borrower owes).  With judicial foreclosures, the lender retains the right to file a deficiency judgment against the borrower.   

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, in the case of non-judicial foreclosures, the lender will file a notice of default naming the borrower, describing the property, the amount the borrower owes, the lender’s desire to sell, and the time, date, and location of the property sale.  This notice is mailed to the borrower, posted on the property, and copied to any other known parties who could be affected by the foreclosure. 

The notice of sale must be published in a local newspaper once a week for four weeks.  It must also be posted in 3 public locations for 30 days prior to the sale.  

The sale will be conducted by public auction at the courthouse door.  The lender may open the bidding with the amount still owed.  The property will be sold to the highest bidder. 

The borrower can stop the foreclosure process at any time before the sale by bringing missed payments current and paying legal fees.  The lender cannot require the borrower to pay the balance in full – just the missed payments and fees.

In judicial foreclosures, the borrower has a right of redemption (right to reclaim their property) for 12 months following the sale.  To reclaim the property, the borrower must pay the sale price at auction plus 8% interest and fees.  If the borrower fails to redeem the property, the high bidder is given full ownership.  

With non-judicial foreclosures the lender has no right to pursue a deficiency judgment (meaning, sue the borrower for the difference if the property sells for less than the borrower owes).  With property values falling in the area, the price at auction often does not cover the borrower’s debt obligation. 

 

 

Foreclosure Procedures

Lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the non-judicial process is more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The process begins when the lender or the lender’s trustee records a notice of sale in the county record office.  Within 5 days of recording the notice, the trustee sends a copy of the notification to the borrower, lender, and any other entities who may be a party to the deed of trust.  The foreclosure sale usually takes place about three months after recordation of the notice of sale.

Judicial (through-the-court) foreclosures are not common in Arizona but can occur if there is no power of sale clause in the mortgage or deed of trust or when there are legal issues, such as a question of clear title, to resolve before the process can move forward. 

In the case of a judicial foreclosure, the process begins when the trustee files a lawsuit and lis pendens (public notice of intent to sue) asking the court to declare the borrower in default.  The court notifies the borrower of the default and intent to foreclose.  If the borrower does not respond, the court sets the amount owed and notifies the sheriff to sell the property to the highest bidder.  The foreclosure sale usually occurs about 45 days after the sheriff is notified.

The borrower can stop the foreclosure process until the day prior to the sale by paying the default amount plus any expenses owed. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sale process begins when the Notice of Sale is mailed to the borrower and any other party named in the deed of trust.  This notification occurs at least 3 months prior to the sale date.  A notice is also published in a local newspaper every week for 4 weeks with the last notice appearing at least 10 days prior to sale.  The notice will also be posted on the property and at the county court house at least 20 days before the sale. 

The property will be sold at auction to the highest bidder.  The bidder has until 5:00 the day after the sale to pay the bid price in full, with transfer of title occurring within the following 7 days.   The borrower has no right of redemption (right to reclaim their property) after a non-judicial foreclosure sale. 

Provided the property is not abandoned, the borrower does have 6 months to pay the total amount owed plus costs and redeem the property after a judicial foreclosure sale.  If the borrower does not redeem the property, title is transferred to the winning bidder.

In many cases the lender cannot file a deficiency suit against the borrower; meaning, the lender cannot sue the borrower for the difference between what the property sells for at auction and what the borrower still owes.  In Arizona, the lender cannot file a deficiency suit if the property occupies less than 2.5 acres and is a single family or a 1-2 family home.  If the property is of another type or size, a deficiency suit can be brought against the borrower, but only for the difference between what was owed and the fair market value. This is particularly important in areas with steeply declining property values where present day fair market value might be much lower than the value of the property when it was purchased.  

 

 

Foreclosure Procedures

In the state of Arkansas, judicial (in court) and non-judicial (out of court) foreclosures are equally common. A power of sale clause in the mortgage allows lenders to foreclose out of court.  The absence of a power of sale clause, or an issue that requires legal review, would be managed through the judicial foreclosure process.  In either case, an appraisal of the property must be conducted prior to the date of foreclosure.

A non-judicial foreclosure starts with the lender filing a Notice of Default in the county records office.  Within 30 days of filing, the lender or its trustee must notify the borrower of their filing and intent to sell.  The lender must also notify any other parties named on the deed of trust or mortgage, and must notify anyone who formally requests notification should the lender declare its intent to sell. 

In a judicial foreclosure, the lender begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  The court notifies the borrower they are in default and gives them a short period of time to pay their debt.  If the borrower fails to respond as required, the court finds for the lender and orders the property sold.  The foreclosure sale usually occurs about 30 days after the court’s decision. 

The borrower can stop the foreclosure process at any time up to the date of sale by paying off the amount owed.  

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a Notice of Sale is posted in the county record’s office and in a local newspaper.  The newspaper posting will occur every week for 4 weeks with the last notice appearing at least 10 days prior to sale.  The notification should contain the warning: “You may lose your property if you do not take immediate action”, and include the time, date, and location of the sale. 

The property will be sold at auction to the highest bidder as long as the bid amount is at least 2/3 of the property’s appraised value.  If the property fails to sell for a sufficient amount, the house can be removed from auction and relisted for sale at another time.  In the second auction, the property will be sold to the highest bidder regardless of whether or not the price is 2/3 of appraised value.

The high bidder must pay the bid amount within 10 days of sale, at which time they will be awarded ownership. The borrower has no right of redemption in a non-judicial foreclosure. 

In a non-judicial foreclosure, the lender can file a deficiency suit against the borrower if the sale price falls short of the balance still owed on the mortgage.  They may either sue for the difference between the sale price and what is still owed, or for the difference between fair market value and what is still owed, whichever is less. 

In a judicial foreclosure, the property is sold to the highest bidder.  The bidder can pay on credit for not less than 3 months and not more than 6 months; or in installments, for not more than 4 months.   In judicial foreclosure, the borrower has one year from the date of sale to redeem their property.  They can reclaim their home by paying the auction price plus interest.

 

 

Foreclosure Procedures

Both judicial (in court) and non-judicial (out-of-court) foreclosure processes may be used in California but lenders very rarely take the judicial path to resolve mortgage default concerns. 

The Non-Judicial foreclosure process is much more common and is used when the mortgage or deed of trust contains a power of sales clause.  Most California mortgages include this clause.  The process begins when a lender files a notice of default with the county records office stating the mortgagor is not making payments as agreed, the amount they owe, and the date when the debt must to be paid.  A copy of the notification is mailed to the borrower.  If the borrower fails to clear the deficiency by the time indicated, the lender can foreclose on the property and sell the house at auction. 

Judicial foreclosures are used when the mortgage or deed of trust does not have a power of sale clause or when the lender wishes to pursue a deficiency judgment – that is, wishes to be able to sue the borrower for any amount still owed that is not covered by the sale of the property.  A judicial foreclosure begins when the lender files a lawsuit to obtain a court order to foreclose.  If the court finds for the lender and declares foreclosure, the house will be ordered sold at auction

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for a non-judicial foreclosure, a notice of default is filed in the county records office and copied to the borrower.  If the borrower fails to pay their debt by the stated time, a notice of sale will be mailed to the borrower and anyone else who formally requests notification.  The notice of sale will also be posted on the property and in one public location; as well as in a local newspaper, where it will appear one time each week for three weeks.  These postings must occur at least 20 days prior to the scheduled foreclosure sale.  A notice of sale must also be filed with the county office at least 14 days prior to sale.  A foreclosure sale can be scheduled as quickly as 3 months after filing the notice of default. 

The foreclosed property will be sold at auction to the highest bidder.  The winning bid must be paid in full with cash or cashier’s check.  Title will transfer to the new owner upon payment.  The borrower has no right of redemption (ability to reclaim their property) in a non-judicial foreclosure. 

In judicial foreclosure, the court declares foreclosure and the property goes to auction where it is sold to the highest bidder.  Under certain circumstances, the borrower may have up to one year to redeem the property after the foreclosure sale.

THE GOOD NEWS:  In California, the borrower may stop the foreclosure process up to five days prior to the foreclosure sale by paying off the default plus certain other expenses. 

 

 

Foreclosure Procedures

Both judicial (in court) and non-judicial (out-of-court) foreclosure processes may be used in Colorado but lenders very rarely take the judicial path to resolve mortgage default concerns. 

Non-judicial foreclosures are far more common than are judicial foreclosures, but the process is very different than that found in most other states.   The state of Colorado has an office of the public trustee who is either appointed or elected by the public.  To start the foreclosure process, the lender must file certain documentation with the public trustee requesting permission to sell the property.  The public trustee records this “Notice of Election and Demand” with the county records office.  When the public trustee documents the foreclosure action, the lender can proceed to petition the court for legal approval to sell the property.  The court will award approval only after they have taken the matter under consideration and provided all parties an opportunity to present their argument for or against foreclosure.  If no one contests the lender’s assertion the borrower is in default, the court allows the sale process to go forward. 

Judicial foreclosures, which are uncommon in the state of Colorado, begin with the lender filing a lawsuit to obtain a court order to foreclose.  If the court finds for the lender and declares foreclosure, the house will be ordered sold at auction

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, in the case of non-judicial foreclosure, the public trustee posts the Notice of Election and Demand in a local newspaper for five consecutive weeks after recordation.  They also notify the borrower.  The public trustee then schedules the foreclosure sale to occur between 110-125 days after the foreclosure was recorded.  This notice of sale is published in a local newspaper for 12 weeks.  A copy is sent to the borrower. 

The public trustee must mail the borrower instructions on how to redeem their property at least 21 days prior to the foreclosure sale.  There is no borrower redemption period after the foreclosure sale is completed.  To stop the foreclosure, the borrower must submit to the trustee their intention to redeem their property at least 15 days prior to the scheduled sale. The borrower has until noon on the day before the sale to pay their debt obligation and stop the foreclosure process. 

 

 

Foreclosure Procedures

All foreclosures are judicial foreclosures (handled in the courts) in the state of Connecticut. 

The courts decide if a foreclosure process will be carried out by Strict Foreclosure or through Foreclosure by Sale. In strict foreclosure, there is no equity in the property to cover the mortgage debt so no sale occurs.  The borrower is usually given an amount of time to pay their debt and reclaim their property, but if they fail to do this, the other lien holders are given an opportunity to pay the debt and claim the property.  If no one comes forward to pay the debt, the title transfers to the lender

If there is sufficient equity in the property to cover the debt obligation, the court will order a foreclosure by sale where the property is sold at public auction. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for court-ordered foreclosure by sale, an attorney is assigned to handle publication of the sale notice and to conduct the sale.  The sale date is set by the court and usually occurs between 60 - 90 days after the court’s ruling.  The property will be sold at public auction to the highest bidder.  The auction is typically held at the property location. 

After the auction, the court has two weeks to approve the foreclosure sale. If approved, the winning bidder has 30 days to pay their winning bid.

The borrower has until the court’s final approval following the foreclosure sale to pay the amount owed, plus costs, and redeem their property.   

 

 

Foreclosure Procedures

All foreclosures are judicial foreclosures (handled in court) in the state of Delaware and begin when the lender files a complaint claiming the borrower is not meeting their mortgage obligations.  In most states, a lender would have to prove a borrower was in default to get court approval to foreclose, but in Delaware, a borrower has to prove that he isn’t in default to avoid foreclosure.  When the lender files their claim, the borrower is notified to appear in court to state their case for why foreclosure should not proceed.  If the borrower does not appear in court or fails to make a winning argument, the court could rule against the borrower and allow the lender to proceed with a foreclosure sale. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, after the court rules the borrower is in default, the lender notifies the sheriff to schedule the foreclosure sale.  The sheriff posts sales notices both on the property and in other public places and advertises the sale in the local newspaper.  At least 10 days before the property is scheduled for public auction, the sheriff notifies the borrower of the date, time, and location of the sale.  The sheriff usually conducts the sale him or herself, and the sale usually takes place on the property that is being sold.   The entire process takes from 60 – 90 days for the sheriff to complete.

The court takes one to three months to confirm the sale after auction.  The borrower may be able to redeem the property before confirmation of the sale, but the borrower has no right of redemption after the sale has been confirmed. 

 

 

Foreclosure Procedures

In the District of Columbia, almost all foreclosures are handled non-judicially; that means they are handled out of court. The lender starts the foreclosure process by notifying the borrower when they are in default.  If the borrower does not bring their mortgage current, the lender can sell the property to pay off the balance on the loan.

While less common, lenders use the judicial (in court) foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, to resolve before the process can move forward.  The lender or their trustee begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled. 

The foreclosure process moves very quickly in the District of Columbia.  The typical timeline for an out-of-court foreclosure in the District is two months or less. 

The borrower can stop the foreclosure process by paying the amount they owe plus expenses and other fees up to the point of sale.  The borrower can only exercise this option one time in any two year period.   

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sales process begins with the lender scheduling a foreclosure sale.  At least 30 days before the scheduled sale, the lender must record the notice of sale with the DC recorder of deeds and the mayor’s office.  They must also notify the owner by certified mail.  The lender will usually notify other lien holders at this time and post the notice in a local newspaper.

 A licensed auctioneer will conduct the foreclosure sale at their office.  The sale is by public auction with the property sold to the highest bidder. 

After the foreclosure sale is complete, the borrower has no right of redemption (right to reclaim their property).

 

 

Foreclosure Procedures

All foreclosures in the state of Florida are judicial foreclosures.  That means the foreclosure process is managed within the state court system.   Lenders begin the foreclosure process by filing certain legal documents and then notifying the borrower and other affected parties that a lawsuit is pending.  The borrower is given time to respond, but if they fail to do so, the county clerk can find the borrower in default.  The court will specify the amount owed and set a foreclosure sale date.   

The borrower can stop the foreclosure process at any time up until the date of the sale by paying the total amount owed. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the court usually sets the foreclosure sale date and issues a notice announcing the date, time, and location of the auction.  A public notice is also published, appearing one time each week for two weeks, with the final notice occurring at least five days prior to the sale.

The sale is held at the county courthouse at 11:00 in the morning.  The property goes to the highest bidder with the balance due in full by the end of the day.  If there is no dispute following the sale, the court transfers ownership to the new owner within ten days.

After the sale is complete, the borrower has no right of redemption (right to reclaim their property).

 

 

Foreclosure Procedures

Most foreclosures in Georgia are non-judicial, meaning the foreclosure process takes place outside of the court system.  Lenders can manage the foreclosure process out-of-court because most mortgages contain a Power of Sale clause permitting the lender to sell the property if the borrower falls behind on their mortgage. 

Judicial foreclosures take place within the court system; either because the mortgage has no Power of Sale clause, or because there issues related to title or other legal concerns which require the foreclosure to go through the courts. 

The non-judicial foreclosure process moves very quickly in Georgia – averaging just a little over one month’s time. The process starts with the lender scheduling a foreclosure sale.  Under Georgia law, the lender is not required to give notice when a house has been scheduled for foreclosure; and under Georgia law, the only way to stop the foreclosure process is to pay off the loan balance in full.   The mortgage or deed of trust may contain written terms that require the lender to notify the borrower if they schedule a foreclosure sale; or written terms that require the lender to accept payment of only the deficiency (the amount the borrower is behind) to stop the foreclosure process. 

In judicial foreclosure, the lender files a lawsuit in order to get a court order to foreclose.  The borrower is sent a thirty day notice to pay the defaulted amount within a specified time.  If the borrower fails to meet the deadline, a foreclosure sale is scheduled.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for non-judicial foreclosures, a notice of sale is sent to the borrower at least fifteen days prior to the auction and posted publicly every week for four weeks prior to sale.  The foreclosure sale is conducted at the county courthouse on the first Tuesday of every month.  The sale is by public auction, with the winning bidder required to pay the balance in full immediately following the sale. 

In judicial foreclosure sales, the property is scheduled for sale at auction.  Following the auction, the court schedules a confirmation hearing to validate acceptance of the sale price.  The borrower is notified of the confirmation hearing at least 5 days prior to the scheduled date and time   The court confirms the sale if the winning bid is at least market value.  If the sale price is below market value, the court may declare the sale invalid and order the property scheduled for another auction.  

Borrowers have no right of redemption (ability to reclaim their home after sale) in Georgia; and lenders may seek a deficiency judgment against borrowers after the sale, meaning they can sue borrowers for the amount still owed if their property sells for less than the balance of their mortgage.

 

 

Foreclosure Procedures

Non-judicial (out of court) foreclosures and judicial (in court) foreclosures are equally common in the state of Hawaii. Non-judicial foreclosures are used when the mortgage contains a power of sale clause which permits the lender to sell a property to recover losses after a borrower defaults (fails to make agreed upon payments).  Some mortgages or deeds of trust also contain requirements that a lender notify the borrower before beginning foreclosure proceedings but this is not required under state law.   

Judicial foreclosure is used when there is no power of sale clause in the mortgage or when other concerns, such as lack of clear title, require the parties to handle the process in court. 

The borrower may stop the foreclosure process at any time, up until three days before the foreclosure sale, by paying the defaulted amount (the amount they are behind) plus costs.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for a non-judicial foreclosure, the process begins when the lender or his trustee posts a notice of foreclosure sale on the property and sends a copy to the borrower.  This notification must occur at least 21 days prior to the sale.  The lender also publishes a copy of the notice in the local newspaper.  This public notice will occur one time a week for three weeks, with the last publication occurring at least 14 days prior to the scheduled sale date.  The property will be sold at public auction to the highest bidder. 

 Judicial foreclosures begin when the lender’s attorney petitions the court to declare the borrower in default.  The lender is required to notify the borrower of this filing; or, if the borrower cannot be found, publish the notice in a public venue.  If the borrower does not respond, the court will find the borrower in default and release the lender to sell the property at auction.   

The court will appoint a commissioner to advertise and sell the property.  Sometimes the commissioner will schedule open house dates so prospective bidders can view the interior of the property prior to the auction. 

The property tentatively goes to the highest bidder who must pay 10% of their bid on the day of the auction.  The sale is followed by a confirmation hearing where the court evaluates the fairness and suitability of the bid and also considers additional bids if more are forthcoming.  The court determines the highest and best bid and awards ownership to that bidder.  

In both judicial and non-judicial foreclosures, the borrower has no right of redemption (opportunity to reclaim their property) after a sale is confirmed.  

 

Foreclosure Procedures

Most foreclosures in the state of Idaho are non-judicial (conducted out-of-court) because most mortgages and deeds of trust contain Power of Sale clauses permitting the lender to sell the property if the borrower fails to pay their mortgage as agreed.  If there is no Power of Sale clause, or if there are legal concerns, such as a question of clear title, the lender may pursue a judicial foreclosure where the matter will be handled within the court.

In non-judicial foreclosures, unless stipulated otherwise in the loan documents, the lender begins the foreclosure process by mailing a notice of default to the borrower.  The borrower has 115 days to bring their mortgage current, pay costs, and stop the foreclosure process.  The lender also files a notice of default with the county recorder’s office.  After the lender files the notice of default, they can file a notice of sale.

In judicial foreclosures, the lender or their trustee begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender advertises the sale by sending a copy of the Notice of Sale to the borrower at least 120 days prior to the sale date.  The lender also posts the notice in the local newspaper and includes the lender’s name and contact information, property description and location, reason for default, and date, time, and location of the auction.  The notice will appear in the newspaper once each week for four weeks with the final publication at least thirty days prior to the date of sale.

The property will be sold to the highest bidder at public auction.  The winning bidder can take possession of the property 10 days after sale and payment. 

The lender may file a deficiency suit against the borrower within 90 days of the sale if the sale price was less than the mortgage owed.  The deficiency judgment cannot be more than the difference between the entire debt and the fair market value of the property at the time of sale.   

Idaho is a Right of Redemption state but only in the case of judicial foreclosures.  There is no redemption period after a non-judicial foreclosure.  Redemption means the borrower has the right to reclaim their property after foreclosure by paying their debt plus certain fees and expenses.  The redemption period is one year for properties of 20 or more acres and 6 months for smaller properties. 

 

Foreclosure Procedures

All foreclosures are judicial foreclosures in the state of Illinois.  That means they are managed through the courts.  The lender begins the process by filing a lawsuit to get a judgment of foreclosure.  The lender also files a lis pendens, which is a public notice of their intent to foreclose.  The lender can choose when to file, but in Illinois, the suit and lis pendens are usually filed 3-4 months after the first missed payment. 

The borrower is served either in person or by publication following the filing of the lawsuit and has 30 days to file an answer.  If the borrower fails to respond, the court orders for default.  If the borrower offers a defense, they may go to trial, and this can postpone the judgment. 

If the court issues a judgment of foreclosure, the borrower has three months from the date of the judgment or 7 months from the date he/she was served to pay their debt and redeem their property.  If the borrower fails to redeem the property during the redemption period, the courts issue a notice of sale. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the county sheriff announces the sale by publishing a Notice of Sheriff’s sale in a local newspaper.  The public notice will appear once a week for three weeks with the last publication at least seven days prior to the scheduled sale date. The lender generally enters the first bid which is usually the full amount owed on the mortgage.  The winning bidder has 24 hours to pay the sale price in full. 

The borrower has no right of redemption (right to reclaim the property) after the foreclosure sale. 

Consent Foreclosure

Occasionally the court will order a Consent Foreclosure where all rights to the property are given over to the lender.  The borrower has no right of redemption after this process.  The lender cannot file a deficiency judgment against the borrower, meaning the lender cannot file a lawsuit to collect the difference between what the property is worth and what the borrower owes.

 

Deed in Lieu of Foreclosure

The borrower and the lender sometimes come to a private agreement to transfer ownership and release the debt.  When a borrower defaults on a loan and the lender agrees, the borrower can offer the lender a deed in lieu of foreclosure.  This means that in exchange for transferring ownership and terminating their interest in the property, the borrower avoids foreclosure, and the lender agrees to release the borrower from all debt owed and not file a deficiency judgment.  While a deed in lieu may seem like a good alternative to the borrower, the lender is under no obligation to accept the offer.

 

Foreclosure Procedures

All foreclosures in the state of Indiana are judicial foreclosures, meaning they are managed by the courts.  The process starts when the lender files a complaint seeking a court order to foreclose.  Although not required under state law, most lenders also notify the borrower.  If the court finds for the lender, a foreclosure sale will be scheduled to settle the borrower’s debts.     

Depending upon the age of the mortgage, the lender must either wait 3, 6, or 12 months before they can schedule the foreclosure sale.  Most mortgages require a 3 month waiting period.  The older mortgages include terms that require longer waiting times.  The borrower can, at their discretion, waive their rights to the waiting period and release the lender to move forward with the sale.  In exchange for this release, the lender will give up their right to file a deficiency suit against the borrower if the property sells for less than the borrower owes.  When the waiting period is over or when the borrower waives their rights to a waiting period, the court will direct the sheriff to make arrangements to sell the property.

The borrower can stop the foreclosure process at any time up to the date of sale by paying the debt, interest, and costs. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sheriff serves the borrower with the Notice of Sale, posts the notice in at least three public places, and posts the notice at the county courthouse.  The sheriff also publishes the notice in the local newspaper at least once a week for three weeks, with the first publication occurring at least 30 days before the sale date. The sheriff awards the winning bidder title by deed immediately after the foreclosure sale. 

The borrower has no right of redemption (right to reclaim the property) after the sale.  Before the sale, the borrower can reclaim their right to the property by paying their debt, costs, and fees associated with the foreclosure.

 

 

Foreclosure Procedures

Foreclosures are usually judicial foreclosures (managed by the courts) in the state of Iowa, although non-judicial (out of court) foreclosures can occur under certain circumstances.  Generally, the foreclosure process begins when the lender notifies the borrower they are in default and specifies the amount owed and a deadline for payment.  If the borrower fails to pay the deficiency as required, the lender files a complaint in court and requests a Decree of Sale permitting them to sell the property at auction. 

The court considers the lender’s petition, and if they find the borrower in default, notifies the borrower of their finding and gives them a period of time to make the required payment.  If the borrower does not pay the deficiency as required, the court will find for the lender and order the property sold. 

The foreclosure sale typically occurs within 2 months of the court’s judgment against the borrower; however, in Iowa, a lender can choose whether to pursue foreclosure with or without right of redemption (the borrower’s right to pay the debt and reclaim the property).  If the lender elects to pursue foreclosure without right of redemption, the borrower can demand a 6-12 month delay on the sale.  

Generally, lenders pursue foreclosure without right of redemption if they also want to preserve their deficiency rights, meaning they want to be able to sue the borrower for the difference if the house sells for less than what the borrower owes.  If the lender chooses preserve their right to pursue a deficiency judgment, the borrower has a one year right of redemption.  If the lender waives their right to pursue a deficiency judgment, the borrower has a 6 month right of redemption. 

Borrowers in Iowa have the option of avoiding the foreclosure lawsuit altogether by voluntarily conveying their property rights to the lender.  This is called Alternative Non-Judicial Foreclosure Procedure.  By accepting the borrower’s offer, the lender gets immediate access to the property and can list it for sale more quickly; but in exchange for quick access, the lender gives up their rights to a deficiency judgment against the borrower. 

If the borrower elects to pursue an Alternative Non-Judicial Foreclosure Procedure, they are required to sign a “disclosure of notice and cancellation”, which states they are voluntarily giving up their rights to reclaim or occupy the property.  Both the borrower and the lender must also sign a document with the county recorder’s office stating they have chosen to proceed using the alternative voluntary foreclosure method.  Under this scenario, the lender cannot report the delinquency to a credit bureau but can report they used the alternative foreclosure procedure. 

 

 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sheriff posts a Notice of Sale at 3 public places, the county courthouse, and the local newspaper.  The newspaper announcement appears once a week for 2 weeks with the first notice appearing at least 4 weeks prior to sale.  The sheriff also notifies the borrower. 

The sheriff may accept written bids that contain a refundable payment.  The sheriff will open and read the written bids at the auction.  The property will be sold at public auction to the highest bidder.   

 

Foreclosure Procedures

All foreclosures are judicial foreclosures (in court) in the state of Kansas. The process begins when the lender petitions the court for Mortgage Foreclosure. The Petition is served to the borrower any other named defendants.  If the borrower cannot be found, the petition is served by publication.  The borrower is given 20 days to respond to the petition.  If the borrower contests the foreclosure, the matter may be litigated and go to court.  If the borrower does not respond, the court will enter a judgment for the lender.  The borrower has 10 days to pay the amount of judgment before the court orders a foreclosure sale.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a Notice of Sale is published in the local newspaper once a week for three weeks with the final publication occurring at least 7 days before the date of sale. The borrower must be notified of the sale no more than five days after the first publication. 

The sale will be by public auction at the county courthouse where the property will be sold to the highest bidder.  The lender usually makes the opening bid for an amount equivalent to what is still owed.  The winning bidder will receive a Certificate of Purchase upon payment.  After the court confirms the sale, the winning bidder will be given a Sheriff’s Deed, which provides for transfer of title after the borrower’s redemption period has expired. 

The lender may sue the borrower for the difference between the sale price and the amount owed on the original mortgage.  This is called a deficiency judgment. 

The redemption period is different depending on the principal balance remaining on the loan. If the borrower has paid more than one-third of the principal balance, there is a one year redemption period. If the borrower has paid less than one-third of the principal, the redemption period is three months. In order to redeem the property (reclaim the property after foreclosure), the borrower must pay the amount of the highest bid plus other fees and interest.

 

Foreclosure Procedures

Kentucky law requires lenders to pursue Judicial Foreclosures (in court) to secure property for settlement of a mortgage debt.  Only if the property is proven to be abandoned and the borrower is in default, can the lender take possession without filing a lawsuit.  

The lender begins the process by filing a suit with the Kentucky circuit court asking for a Judgment of Foreclosure.  Once the complaint is served, the borrower has no fewer than 21 days to respond to the suit.  If the borrower fails to respond, the court issues a Default Judgment and a Notice of Sale.  If the borrower does respond, but default is apparent, then the court issues Summary Judgment as well as Notice of Sale.  And if the borrower responds and contests the suit or files for bankruptcy, then the process will be delayed. 

Once the Default Judgment or Summary Judgment and Notice of Sale have been issued, the property is ordered sold.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, Kentucky law requires an appraisal on the property prior to foreclosure.  The sale is usually conducted by an official of the court, at the courthouse, about a month after the court finds against the borrower.  A notice of sale must be published at least once a week for three consecutive weeks and include the total balance due, as well as the date, time, and location of the sale. 

The sale will be a public auction with the property sold to the highest bidder.  If the winning bid is less than two-thirds of the appraised value of the property, the borrower will have a one year right of redemption in which they can pay the sale price plus interest and reclaim their property.  The mortgagor can sell their right of redemption to a third party. 

The lender can pursue a deficiency judgment (sue the borrower for the difference between what they owed and the sale price of the property) but only if the borrower was personally served with the foreclosure lawsuit or failed to answer.  If the borrower did respond to the court, the lender cannot seek a deficiency judgment. 

 

 

 

Foreclosure Procedures

There are two types of foreclosures in Louisiana, executory and ordinary.  Both are considered judicial foreclosures, meaning both require the lender to file a lawsuit and both are carried out with the assistance of the court.   

 

The “ordinary” foreclosure is more time consuming and therefore more expensive and functions more like a regular lawsuit.  The ordinary foreclosure process takes about 9 months to complete.  The “executory” foreclosure process is preferred by lenders because it is less complex and takes less time.  The executory process can be used when the mortgage contains an “authentic act that imparts a confession of judgment”, meaning the borrower accepts, by their signature, and in the presence of witnesses, the obligations as set forth in the mortgage. 

The lender can begin the executory foreclosure process by simply filing a default complaint with the court along with the original note and a certified copy of the mortgage.  The court will review the documents for sufficiency and issue an order for the foreclosure process to begin.  The court notifies the borrower upon issuing judgment.  Upon being served notice, the borrower has 3 days to pay the delinquent amount or the court will order a “write of seizure and sale”, meaning the property can now be sold to pay the borrower’s debts.   The executor process takes only about 6 months to complete.

 Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sale process begins when the court delivers the writ of seizure and sale to the sheriff.  The sheriff manages the sale process by first personally notifying the borrower of the foreclosure sale.   The notice of foreclosure sale is also published in a local newspaper over a period of 30 days.  The sheriff conducts the sale as a public auction with the property going to the highest bidder.  The winning bidder must pay the sale price in full on the day of the sale, or must pay a 10% deposit with the balance due within 30 days of sale.  The sheriff issues a deed of ownership upon payment. 

The borrower has no right of redemption after foreclosure.  The lender can file a deficiency judgment if the amount of the sale is less than the amount owed, and the lender used the ordinary foreclosure process.

 

Foreclosure Procedures

The Strict Foreclosure method is the primary method of foreclosure in Maine.  The Strict Foreclosure method is based on the doctrine that says the lender owns the property until the borrower pays the mortgage debt in full.  Under this foreclosure process, if the borrower fails to pay as agreed, the lender can take possession or sell the property after a 3-12 month redemption period has expired.

Lenders can also file for debt recovery using a Judicial (in court) foreclosure process.  This process is used primarily when there is a legal issue, such as a question of clear title, to resolve before the foreclosure can proceed. 

The Judicial Foreclosure process requires the lender to first send a notice of default to the borrower advising them of the amount owed and the deadline for payment.  The borrower is warned that failure to pay will start the foreclosure process.   

If the borrower fails to meet their payment obligation, the lender petitions the court to begin the foreclosure process.  The borrower is notified of the lender’s petition and has an opportunity to respond.  If the borrower opposes the foreclosure, a lawsuit may result and the process will continue in court. If the borrower does not respond, foreclosure is ordered.  The borrower has 90 days to stop the foreclosure process by paying all money owed plus fees. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender begins the foreclosure process.  A notice of sale will be published in a local newspaper for three weeks with the sale conducted 30-45 days after the first date of publication.  The foreclosure attorney representing the lender will conduct the sale, which is a public auction, at either their office, the courthouse, or at the property itself.

The property will be sold to the highest bidder. The lender may also bid on the property, usually opening with the amount owed.  The winning bidder is required to pay the balance of the bid in full within 30 days of sale.  Ownership will transfer upon payment. 

 

Foreclosure Procedures

Lenders can foreclose on properties in Maryland using Non- Judicial (out of court), Judicial (in court), or Assent to Decree foreclosure processes. 

The lender may proceed with a Non-Judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause, where the borrower pre-authorizes the lender to foreclose if the mortgage is not paid as agreed.  The lender still has to file an order to docket before a foreclosure sale can begin, even with a Power of Sale Clause, although no hearing will be required. 

An Assent to Decree foreclosure is used when the mortgage or deed of trust contains terms where the borrower agrees to let the lender sell the property under specific terms of default.  As with non-judicial foreclosures, while no hearing is required, the lender still has to file an order to docket before a foreclosure sale can begin.

A judicial foreclosure is undertaken when the mortgage or deed of trust contain no Power of Sale clause or assent to decree.  In the absence of these terms, the lender must go through the courts to obtain permission to begin foreclosure proceedings.  If the court finds the borrower in default, they will specify the amount owed (debt plus costs and interest) and set a reasonable time for payment to be made.  If the borrower does not respond as required, the court will order the property sold and foreclosure proceedings can begin.  The lender is not required to tell the borrower they have begun foreclosure proceedings. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender or lender’s trustee publishes a notice of sale in a local newspaper for three weeks.  The lender sends the borrower and any other lien holders a notice of sale at least 10 days before the foreclosure sale date.  Under state law, this may be the first time the lender has notified the borrower of a pending sale. 

The sale is conducted by a licensed auctioneer at the courthouse.  The property will be sold to the highest bidder.  The auctioneer will publish a notice in the local newspaper announcing completion of the sale and advising that if anyone has an objection to the sale, they must raise it within 30 days.  If no objections are raised, the sale is confirmed and the property transferred to the winning bidder. 

Although not required under Maryland law, the court may decide to set a redemption period – meaning, set a period of time within which the borrower can meet certain requirements and reclaim their property. 

 

 

Foreclosure Procedures

Most foreclosures are judicial foreclosures in the state of Massachusetts, meaning they are handled through the courts.  To get the process started, the lender must first obtain a ruling from the land court that ensures the borrower is not an active member of the military and protected under the Soldiers’ & Sailors’ Civil Relief Act. If the borrower is protected under this act, the foreclosure action may be delayed. If not, the lender may move forward by filing a complaint and lis pendens (a notice of pending lawsuit) with the court.  If the court finds the borrower in default, they will order a foreclosure sale.

The lender may notify the borrower of default before filing a lawsuit but they don’t have to.  Some loan documents require notification, but many do not, and notification is not required under state law.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a notice of sale is sent to the borrower and any other defendants at least 14 days prior to the scheduled foreclosure sale date. The notice is also published in a local newspaper one time each week for three weeks with the first notice occurring no less than 21 days prior to the sale date.

A licensed auctioneer is retained to conduct the sale.  The sale takes place at the property and is sold to the highest bidder.  The winning bidder must pay a deposit at auction and pay the balance within 30 days of the sale.  Title will transfer to the new owner upon payment in full.  The borrower has no redemption rights after the sale but is entitled to any gain if the property sells for more than the lender was owed. 

The lender can file for a deficiency judgment (can sue the borrower for the difference if the property sold for less than what was owed) if the notice of intention to foreclose was sent at least 21 days before the sale and the affidavit certifying completion of the sale was recorded 30 days after the sale.  If these two steps were executed properly, the lender will be given up to 2 years to file a deficiency judgment. 

 

 

Most foreclosures in the state of Michigan are non-judicial.  That means they are handled out of court.  Only if there are legal problems – for example, a question about clear title – would the foreclosure be resolved through the judicial system.  Most Michigan mortgages contain a Power of Sale clause which authorizes the lender to sell the property to pay off the debt if the borrower defaults.  The non-judicial foreclosure process can begin by simply advertising the property for foreclosure sale.  This process is called Foreclosure by Advertisement.  Under Michigan law, the lender is not required to send the borrower a default notice before advertising their property for sale, although some lenders notify the borrower out of courtesy and some notify the borrower because there are terms in the mortgage that require borrower notification prior to public notification.

While less common, judicial foreclosures (in court foreclosures) do occur.  In judicial foreclosures, the lender must first file a lawsuit requesting a court order to foreclose.  If the court finds in favor of the lender, the court notifies the borrower of the amount owed and establishes a short time period to pay.  If the borrower fails to respond or fails to meet the demands of the court, the property is ordered sold at public auction.

The borrower can pay the default amount (amount they are behind) plus fees and costs and stop the foreclosure process at any time up until the foreclosure sale.  

Notification and Public Sale

Foreclosure by Advertisement requires the lender or its trustee to publish a notice of sale once each week for four weeks in the local newspaper.  The sale can occur no less than 28 days after the first publication.  A notice of sale must also be posted on the property within 15 days of the first publication.   The notice of sale must include the lender, borrower, mortgage recordation date, default amount, property description, and the length of the redemption period.  It must also include the date, time, and place of the sale. 

The foreclosure sale is by public auction and takes place at the county courthouse with the property going to the highest bidder.

There is a redemption period in the state of Michigan of six months during which the borrower can pay the winning bid amount plus costs and redeem (reclaim) the property.

Michigan provides a redemption period (usually 6 months) after the foreclosure sale where the borrower can reclaim their property by paying the winning bid plus costs and fees.

 

Both non-judicial (out of court) and judicial (in court) foreclosures are used in Minnesota, although non-judicial foreclosures are far more common.

Foreclosures can be handled out of court when the mortgage contains a Power of Sale clause permitting the lender to foreclose if the borrower fails to pay the mortgage as agreed.  To proceed with a non-judicial foreclosure, the lender must first ensure the mortgage is in default, there are no lawsuits already pending against the mortgage, the mortgage and any assignments to new lenders have already been recorded, and the borrower has been notified 8 weeks before foreclosure if the property is a homestead.  If all these conditions have been met, the lender may proceed with the sale process.  Most mortgages require the lender to notify the borrower of default prior to scheduling the sale. 

Lenders initiate judicial foreclosures by first notifying the borrower of default.  This must occur at least 30 days prior to the lender filing a lawsuit to obtain a court order to foreclose.   If the court rules against the borrower, the foreclosure sale is scheduled and the home will be auctioned off to the highest bidder.  In the case of agricultural properties, the court requires the lender and borrower to participate in a complex mediation procedure prior to foreclosure.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the notice of sale must be recorded in the county where the property is located.  The notice of sale must include the borrower and lender, the original loan amount and the amount in default, the date of the mortgage, a property description, the redemption period, and the date, place, and time of the sale.  The notice of sale must be published for 6 weeks in a general interest newspaper prior to sale and the borrower and any occupants must be given the notice in person four weeks prior to the sale. 

The county sheriff usually conducts the foreclosure sale at their office.  The sale is by public auction, anyone can bid, and the property will be sold to the highest bidder. 

Lenders may pursue a deficiency judgment (sue the borrower for the difference if the property sold for less than the amount owed) but the judgment is limited to the difference between the unpaid balance and fair market value at the time of sale rather than the unpaid balance and the original loan. 

Unless the mortgage states otherwise, there is generally a six month redemption period following the sale when the borrower may redeem the property (get the property back) by paying the winning bid amount plus interest and costs.  Some mortgages and property types allow for a 12-month redemption period after the sale.

Under both types of foreclosures, the borrower can stop the foreclosure process and reclaim their property at any time prior to the sale by paying the default amount plus any fees and costs.

 

Foreclosure Procedures

In the state of Mississippi, lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the non-judicial process is more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  Generally the borrower receives a notice of default at least 30 days before the foreclosure sale.  The lender or their representative (also known as a trustee) then begins the sale process by recording a notice of sale in the county recorder’s office.

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, to resolve before the process can move forward.  The lender or their trustee begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled. 

The borrower can stop the foreclosure process at any time before the foreclosure sale by paying the delinquent amount plus costs and other fees. 

 

 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a non-judicial foreclosure starts with the posting of a notice of sale at the county records office.  The notice must contain the names of the borrower and lender, a property description, deed of trust information, and the time, date, and location of the sale.  The notice must be published in a local newspaper one time each week for three weeks and also posted at the county courthouse.

The trustee conducts the sale at the courthouse at the appointed time.  The sale is sold at public auction.  The property will be sold to the highest bidder with title transferred upon payment in full. 

In non-judicial foreclosures, the borrower has no right of redemption (right to reclaim the property) after the sale is completed.  With judicial foreclosures, under certain circumstances the borrower may have 6 months after the sale to pay the amount left on the loan plus costs and reclaim the property.

A lender can pursue a deficiency judgment against the borrower, meaning the lender can sue the borrower for the difference if the property sells for less than what is owed.

 

Foreclosure Procedures

Both non-judicial (out of court) and judicial foreclosures (in court) are used in Missouri, although non-judicial foreclosures are more common. 

Non-judicial foreclosures occur when there is a Power of Sale clause in the mortgage or deed of trust permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender begins the non-judicial foreclosure process by delivering a Notice of Sale to the borrower.  After the borrower is notified, the lender can set a foreclosure sale date at any time as long as the date is at least 20 days after the borrower was notified.  The power to sell the property may be executed by the lender or by their representative, also known as the “trustee”.

The judicial foreclosure process is used when there is no Power of Sale clause in the mortgage or deed of trust, or when there are legal issues the court will need to resolve.  The lender starts the judicial process by filing a lawsuit and a lis pendens (notice of intent to sue) and asking the court to award an order of foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled and the property is sold at auction to the highest bidder. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for non-judicial foreclosure sales, a notice of sale is mailed to the borrower and any other required parties at least twenty days before the foreclosure sale date. The notice must also be published in a local county newspaper one time each week for four weeks with the last publication occurring one week before the sale date unless the property is in a town with fewer than 50,000 in population.  If that is the case, the notice of sale must be published a minimum of twenty times, continuing up to the day of sale.

The trustee conducts the foreclosure sale at the location and time documented in the notice of sale.  The notice of sale is read and bids are heard for separate parcels, then bids are taken for the entire property, until no more bids are made.  The property will be sold to the highest bidder.  Missouri provides for two types of statutory redemption: 1) the property can be redeemed at any time before the foreclosure if the borrower pays the entire balance owed plus expenses.  And 2), the property can be redeemed after foreclosure if the buyer at the foreclosure sale is the original mortgage holder, gives written notice of their intent to redeem the property, posts a bond along with a motion for approval within 20 days of the sale, the bond is executed by the mortgagor and one good surety, and the borrower pays the full amount owed within one year of the date of sale. 

 

Foreclosure Procedures

Both non-judicial (out of court) and judicial foreclosures (in court) are used in Montana, although non-judicial foreclosures are more common. 

Non-judicial foreclosures occur when there is a Power of Sale clause in the mortgage or deed of trust permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender begins the non-judicial foreclosure process by delivering a Notice of Sale to the borrower.  After the borrower is notified, the lender can set a foreclosure sale date at any time as long as the date is at least 120 days after the borrower received notification of the sale.  Unless there is language in the mortgage documents, the lender is not required by law to notify the borrower of default prior to delivering the notice of foreclosure sale. 

The judicial foreclosure process is used when there is no Power of Sale clause in the mortgage or deed of trust, or when there are legal issues, such as concerns about clear title, the court will need to resolve.  The lender starts the judicial process by filing a lawsuit and a lis pendens (notice of intent to sue) and asking the court to award an order of foreclosure.  The court notifies the borrower of the amount owed and the deadline for payment.  If the borrower does not pay the debt, the court finds for the lender and a foreclosure sale is scheduled. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender files a notice of sale with the county recorder’s office and mails a copy to the borrower at least 120 days prior to the sale.  The notice of sale is published in a local newspaper one time each week for three weeks.  The notice is also posted at the property at least 20 days before the sale date.

The foreclosure sale is a public auction held at the county courthouse.  The property will be sold to the highest bidder with transfer of ownership upon payment in full.  The new owner can take possession of the property after 10 days.

The borrower has no right of redemption after the sale, but may reclaim the property at any time before the sale by paying the default amount plus any fees and costs.  The lender may not obtain a deficiency judgment against the borrower – meaning the lender cannot sue the borrower for the difference if the property sells for less than what the borrower owed. 

 

Foreclosure Procedures

All Mortgage foreclosures are handled judicially (in court) while Deed of Trust foreclosures are managed non-judicially, or out of court.  Deeds of Trust are used more often today making non-judicial foreclosures a more regular occurrence.  Older mortgages are foreclosed under the judicial foreclosure process.

The lender starts the non-judicial foreclosure process by filing a Notice of Default in the county records office and sending a copy to the borrower.  The borrower has a 30 day reinstatement period to pay the lender what is owed. If the borrower does not pay the lender by the end of the reinstatement period, a trustee sale (foreclosure sale) will be scheduled. 

Lenders begin the judicial foreclosure process by filing a lawsuit to get a court order to foreclose.  They then notify the borrower who has 30 days to pay what is owed.  If the borrower fails to respond, the court orders foreclosure and gives the borrower a 20-day redemption period where they can stop the foreclosure by paying the amount owed plus interest and costs.  The borrower can also petition the court to delay the sale of their property at this time.  If granted, the delay can be for as long as 9 months.  The petition must be made in writing and within the 20-day redemption period following the court’s judgment.  Note: If the borrower pays what they owe, the court can still order the foreclosure and sale but will only enforce the order if the borrower defaults again.  If the borrower fails to redeem the property or request postponement of sale, the foreclosure sale will be scheduled.  Under Nebraska law, the court may order the land sold in parcels or in whole, depending upon the sheriff’s recommendations as to the best way to proceed. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for non-judicial foreclosures, the notice of sale must be published once a week for 5 weeks with the final notice posted 10-30 days before the sale.  The sale will be by public auction with the property going to the highest bidder. 

In judicial foreclosures, the notice of sale is published once a week for four weeks, posted on the courthouse door, and posted in at least 5 other public places. The sheriff or a court official will conduct the sale, with the property sold to the highest bidder.  Before ownership is transferred, the court schedules a hearing to review and confirm the sale.  The borrower has one last chance to redeem the property during this 2-3 week period while the court is reviewing the sale.  If the borrower does not redeem the property, the sale is confirmed and a deed transferring ownership is issued to the winning bidder. 

The borrower has no right of redemption (right to reclaim the property) after the sale is confirmed. 

 

Foreclosure Procedures

Nevada lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the non-judicial process is more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender begins the foreclosure process by filing a Notice of Default and Election to Sell with the county records office.  The lender sends a copy to the borrower.  Upon receipt, the borrower has between 15 and 35 days (depending upon the age of their mortgage) to pay the debt and stop the foreclosure process.  If the borrower fails to pay the amount owed, the lender or their representative (also known as a trustee) will schedule a foreclosure sale.  The sale is scheduled at least 3 months after filing the Notice of Default and Election to Sell.

During the 3 month period between filing the Notice of Default and the foreclosure sale, the borrower can file an “Intent to Cure” with the Public Trustee’s office and stop the foreclosure process.  This filing must occur no later than 15 days prior to the foreclosure sale and declares the borrower’s intent to pay their mortgage debt.  The borrower is usually expected to pay the missed payments and other fees and costs but not the full balance of the loan.  While the Intent to Cure must be filed at least 15 days prior to the sale, the borrower has until noon the day before the sale to make payment.  If the borrower fails to redeem their property during this 3 month period, the foreclosure sale will proceed as scheduled. 

The judicial foreclosure process is used when there is no Power of Sale clause in the mortgage or deed of trust or when there are legal concerns, such as a question on clear title, which should be handled in court.  The lender begins by filing a lis pendens (public notice of intent to sue) and complaint with the court to obtain an order to foreclose.  If the court finds for the lender and declares a foreclosure, the property will be scheduled for sale at auction to the highest bidder. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the trustee manages the sale process by first mailing a notice of sale to all defendants, posting the notice in three public places, and publishing the notice in a local newspaper one time each week for three weeks prior to the sale. The public postings must appear at least 20 days before the sale.  The sale will be conducted by the trustee at the trustee’s office.  The property will be sold to the highest bidder.  In non-judicial foreclosures, the trustee transfers ownership and clear title immediately after the sale.   There is no borrower right of redemption.  In judicial foreclosures, the borrower has a 12 month redemption period after the sale when they can pay their debt and reclaim their property. 

Lenders may file a deficiency judgment (sue the borrower for the difference between what the property sold for and what the borrower owed) within 3 months after the sale or within 6 months after the judgment for foreclosure. 

The borrower has no right of redemption (right to reclaim their home) after a non-judicial foreclosure. When the judicial foreclosure process is used, the borrower has a 1 year period of redemption following foreclosure when they may pay the debt plus fees and expenses and reclaim their home. 

 

Foreclosure Procedures

Most mortgages and deeds of trust in New Hampshire contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in New Hampshire are non-judicial foreclosures, which are handled out of court. The lender begins the process by sending the borrower a Notice of Default which details the amount due, the deadline for payment (usually 30 days), and warns that failure to pay will result in foreclosure.  If the borrower fails to pay the debt as required, the lender will schedule a foreclosure sale.  The borrower can stop the foreclosure process by paying the default amount plus expenses and fees up until the time of the foreclosure sale. 

Judicial foreclosures are available in the state of New Hampshire but rarely occur; only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a lis pendens (public notice of intent to sue) and complaint in court asking for a judgment of foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled.

 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for non-judicial foreclosure, the lender or its representative must record a Notice of Sale in the county where the property is located.  A copy must be mailed to the borrower at least 26 days prior to sale.  The notice must be published in a local newspaper one time each week for 3 weeks, with the first publication occurring at least 21 days prior to the foreclosure sale.  The Notice of Sale must include the date, time, and location of the property, terms of sale, and the mortgage date. 

The foreclosure sale is conducted at the property location by the foreclosure attorney for the lender or by an auctioneer.  The sale is by public auction with the property sold to the highest bidder.  Anyone may bid, including the lender, who may open with a bid for the amount still owed on the mortgage.  Otherwise, the opening bid is set at 70-85% of fair market value.  The winning bidder has 60 days to pay the balance in full.  Ownership will be transferred upon payment in full.

The borrower has no right of redemption (right to reclaim their property) after the sale is completed.

The lender can file a deficiency judgment against the borrower – meaning the lender can sue the borrower for the difference if the property sells for less than what the borrower owed. 

 

Foreclosure Procedures

In New Jersey, all foreclosures are conducted judicially, meaning in-court.  The lender begins the process by notifying the borrower their mortgage is in default and foreclosure could follow.  The borrower can stop the process by bringing their mortgage current.  If the borrower does not pay the amount owed, the lender proceeds with foreclosure. 

To start the foreclosure process, the lender files a lis pendens (public notice of intent to sue) with the county clerk.  The lender can either sue for the amount of payments the borrower is behind or for the balance of the mortgage in full.  The borrower is notified of the lawsuit and has 35 days to respond.  If the borrow contests the suit or files bankruptcy, the process will take longer as the court considers the matter.  If the borrower does not respond or the court rules for the lender, the foreclosure sale date will be set.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the notice of sale is published in two local newspapers, posted on the property, and posted in the county office.  A notice of sale must be delivered to the borrower at least 10 days prior to the sale date.   The sale is conducted by the sheriff and confirmed by the court. 

The foreclosure sale is a public auction where the property will be sold to the highest bidder.  The sheriff or another officer will conduct the sale. 

The borrower has 10 days following the sale to redeem the property (reclaim the property by paying all debts and fees owed) or notify the court of any objections to the sale.  If the borrower objects to the sale, their right of redemption continues until the court rules on any objections raised.  This could take longer than 10 days.  Once the court confirms the sale, title will be transferred to the new owner. 

The lender has 3 months to file a deficiency judgment against the borrower – meaning sue the borrower for the difference between fair market value at the time of sale and the balance due on the loan.  If the lender files a deficiency judgment, the foreclosure is considered reopened, which essentially also reopens the borrower’s right to seek redemption (reclaim the property).  The borrower has 6 months following the deficiency judgment to pay the debt and reclaim the property.  Borrowers may not redeem if they responded to the deficiency suit by disputing the amount and lost. 

 

Foreclosure Procedures

In New Mexico, all foreclosures are judicial foreclosures.  That means the foreclosure process is managed within the state court system.  

Lenders begin the foreclosure process by filing a complaint requesting a court order to foreclose.  This complaint is followed by a lis pendens (public notice of intent to sue) which is recorded in the county clerk’s office.  The lender notifies the borrower of their intent to foreclose if the borrower fails to bring their loan current.  The borrower is given 30 days to respond, but if they fail to do so, the county clerk can find for the lender and declare the borrower in default.  Having ruled against the borrower, the lender will ask the court to set a foreclosure sale date.  The lender is not required under state law to notify the borrower prior to beginning legal proceedings, but some mortgage documents require borrower notification prior to taking legal action. 

The borrower may stop the foreclosure proceedings at any time by paying the default amount plus costs and fees.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, when the court orders for foreclosure, the lender or the lender’s representative publishes a Notice of Sale in a local newspaper one time each week for four consecutive weeks. The final publication occurs at least three days prior to the foreclosure sale date. The sale is by public auction with the property going to the highest bidder.  Bids that are not at least 80% of the fair market value of the property will not be accepted.  The sale must be confirmed by the court, but once confirmed, a deed is recorded transferring ownership to the winning bidder. 

Once the sale is approved, the borrower has from 1 to 9 months, depending upon the property, to pay the winning bid plus expenses and fees and redeem (reclaim) their home.  

 

Foreclosure Procedures

New York lenders can use both non-judicial (out of court) and judicial (in-court) foreclosure processes but the judicial process is far more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  Lenders use the non-judicial process very infrequently.

Most New York foreclosures are handled judicially, meaning they are managed through the court system.  Although not required under state law, the lender usually begins the process by notifying the borrower they are in default and foreclosure is imminent.   If the borrower fails to respond, the lender files a lis pendens (public notice of intent to sue) along with a formal complaint asking the court to find the borrower in default.  The court notifies the borrower and gives them 20 days to respond.  If the borrower fails to answer the court, the court finds for summary judgment and assigns a referee to manage details associated with the sale.  If the borrower appears before the court and contests the foreclosure, the court takes the case under review.  If the court finds for the borrower, the foreclosure process stops.  If the court finds for the lender, the foreclosure process proceeds.  The legal process leading up to this judgment can take several months.

If the court finds for the lender, a referee is appointed to establish how and when the property should be sold and how much the borrower owes.  The referee submits his recommendation to the court for review and approval.  If approved, the court enters a judgment for foreclosure sale.  It may take from 12 – 18 months to reach this stage of the process, making New York’s foreclosure process the longest in the nation. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the foreclosure sale is usually scheduled about 4 months after the court renders judgment.  The referee posts a Notice of Sale in a local newspaper for publication once each week for 4-6 weeks.  The sale is by public auction with the property sold to the highest bidder.  Anyone can bid, including the lender.  The sale is conducted by the court at the county courthouse. The winning bidder pays 10% down at the sale with the balance due within 30 days.  Upon payment, the officer conducting the sale provides the new owner with a deed to the property and uses the proceeds to pay the lender.  The officer files a report of sale with the county clerk and includes the receipt from the lender.  The court reviews the sale documents and if there are no questions, confirms the sale.  The sale cannot be confirmed until 3 months after the officer files the report of sale. 

The borrower has no right of redemption (right to reclaim their property) after the foreclosure sale is complete.

The lender can file for a deficiency judgment, meaning the lender can sue the borrower for the difference if the sale price does not cover the borrower’s debt.  The lender must make their claim within 90 days following the foreclosure sale.  The court will review the lender’s request and determine the amount owed.

 

Foreclosure Procedures

Lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure processes when a mortgage is in default, but the non-judicial process is far more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  Although this process is officially “non-judicial”, it starts with a hearing where all parties are expected to appear.  The lender personally notifies the borrower at least 10 days prior to the hearing, and provides them with information on balances due.  All parties are expected to appear at the hearing where the county clerk will determine whether or not a foreclosure can take place.  If the clerk orders for the lender, a Notice of Sale is drawn up and the foreclosure process begins. 

Although not common in North Carolina, lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues to resolve, such as a question of clear title, before the process can move forward.  The lender begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale process is directed by the court. 

Notification and Public Sale

If the mortgage or deed of trust contains specific instructions for how the foreclosure process should proceed, then those instructions should be followed.  If not, the sale process begins when the lender or its representative post a Notice of Sale in the local newspaper one time each week for two weeks, with the last publication occurring no more than 10 days prior to the sale date. The lender sends a copy to the borrower no fewer than 20 days prior to the sale date and posts the notice at the county courthouse.

The sale is by public auction conducted at the county courthouse. Anyone can bid.  The property will be sold to the highest bidder.  North Carolina allows “upset bids” where a potential buyer has 10 days after the sale to offer more for the property than did the highest bidder. 

The borrower has 10 days from the date of sale to redeem the property (reclaim the property) by paying the amount owed to the lender plus costs.

 

Foreclosure Procedures

In North Dakota, all foreclosures are conducted judicially, meaning in-court. 

The lender begins the process by giving the borrower at least 30 days notice of their intent to foreclose.  The notice includes a property description, details of the mortgage agreement, and an itemized statement of the amount owed as well as a deadline for payment.  The notice also includes an explicit warning that if the borrower fails to make payment as required, a lawsuit will follow.  If the borrower fails to respond, the lender will file a lawsuit asking the court to declare default and foreclosure.  Upon filing, the court will notify the borrower of the amount owed and give them a reasonable period of time to pay.  If the borrower fails to respond, the court will find for the lender and schedule a foreclosure sale. 

The borrower can stop the foreclosure process at any time prior to the foreclosure sale by paying the defaulted amount plus fees and expenses. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sale process begins when the county clerk publishes a Notice of Sale in a local newspaper.  The last publication should occur at least 10 days prior to sale.  A copy of the Notice of Sale is sent to the borrower.   

The foreclosure sale is a public auction conducted by the sheriff or deputy, where the property is sold to the highest bidder.  The winning bidder must pay for the property in cash at the end of the auction.  The new owner is awarded a Certificate of Sale until the borrower’s redemption period expires.  If the borrower fails to redeem their property, ownership is officially transferred to the winning bidder. 

Borrowers usually have one year to redeem (reclaim) their property, but if the mortgage contains a short term redemption clause, the period is reduced to 6 months. 

Lenders must declare at the time they file their lawsuit if they intend to pursue a deficiency judgment (sue the borrower for the difference between the sale price and what they owe) after the foreclosure sale.  If the lender does not so declare, they cannot file a deficiency lawsuit after the sale.

 

Foreclosure Procedures

In Ohio, all foreclosures are judicial foreclosures.  That means the foreclosure process is managed within the state court system.  

Lenders begin the foreclosure process by filing a complaint requesting a judgment of foreclosure.  This complaint is followed by a lis pendens (public notice of intent to sue) which is recorded in the county clerk’s office.  The court notifies the borrower and gives them 28 days to respond either by paying their debt or by contesting the filing.  If the borrower does not respond, the county clerk finds the borrower in default and orders a foreclosure sale date. 

The borrower may stop the foreclosure proceedings at any point prior to sale by paying the default amount plus costs and fees.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sheriff is required to obtain three appraisals prior to the foreclosure sale.  The sale is by public auction with the property sold to the highest bidder.  The winning bid must be at least 2/3 of the appraised value. 

The sheriff publishes a Notice of Sale in the local newspaper for three weeks prior to the auction then conducts the sale at the county courthouse. The court reviews and confirms the terms of the sale upon completion of the auction.  Once confirmed and upon payment in full, the sheriff transfers ownership to the winning bidder. 

The redemption period expires once the sale is confirmed. During the time period between the sale date and confirmation of the sale, the borrower can redeem (reclaim) the property by paying the balance owed plus fees and expenses. 

Lenders are permitted to file deficiency judgments against the borrower – that means lenders are permitted to sue the borrower for the difference between what the property sold for and what the borrower owed.  There is a 2 year statute of limitations if the judgment was awarded prior to confirmation of the sale. 

 

Foreclosure Procedures

Oklahoma lenders can use either a non-judicial (out of court) or judicial (in-court) foreclosure process when a mortgage is in default, but the judicial process is more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  Oklahoma law makes it difficult for the lender to pursue a foreclosure out of court so this process is rarely used.

The judicial foreclosure process is used much more commonly and begins when the lender files a complaint asking the court to declare the borrower in default.  A copy of the complaint is delivered to the borrower who is given 20 days to respond.  If the court finds for the lender and declares the borrower in default, the property is scheduled for sale at auction.  In Oklahoma, the property must be appraised prior to sale unless the borrower waives his rights to an appraisal. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sale process begins when the Notice of Sale is recorded in the county clerk’s office and published in a local newspaper once a day for four weeks starting at least 30 days prior to the foreclosure sale date. The foreclosure sale is by public auction with the property sold to the highest bidder.  The sheriff conducts the sale.  The opening bid can be no less than 2/3 of the property’s appraised value unless the borrower waived his rights to an appraisal, in which case, there is no minimum to what a potential buyer can bid. 

The court requires approximately 15 days for review and confirmation of the sale.  The borrower can redeem (reclaim) the property up to the date of confirmation by paying the amount owed.  The borrower’s right of redemption expires upon confirmation of the sale. 

 

 

Foreclosure Procedures

Oklahoma lenders can use both non-judicial (out of court) and judicial (in-court) foreclosure processes when a mortgage is in default.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender begins the process by filing a Notice of Default in the county recorder’s office and sending a copy to the borrower.  The borrower must be notified at least 120 days prior to a foreclosure sale.  The borrower can stop the foreclosure process at any time up to the date of the sale by paying all past due amounts plus costs, or by selling the property to another buyer who can pay the debt.  If the borrower fails to pay the lender as required, the lender schedules a foreclosure sale. 

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues to resolve, such as a question of clear title, before the process can move forward.  The lender begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale process is directed by the court.  The borrower can stop the foreclosure up to 5 days before the sale by paying their past due debt plus costs and expenses. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a Notice of Sale will be published in a local newspaper one time each week for four weeks with the last notice occurring at least 20 days before the scheduled sale date.   

The sale will be by public auction with the property sold to the highest bidder.  The winning bidder must pay cash at the end of the sale.  The state will transfer ownership to the winning bidder within 10 days after the sale. 

There is no right of redemption (right to reclaim the property) after the foreclosure sale in a non-judicial foreclosure.  The lender also has no right to file a deficiency judgment against the borrower – that means the lender cannot sue the borrower for the difference between what the property sold for and what the borrower owed. 

There is a 180 day redemption period after the foreclosure sale in judicial foreclosures.   The borrower must notify the sheriff of their intent to redeem the property within 30 days after the sale.  To reclaim the property, the borrower must pay the amount offered in the winning bid, with interest, plus foreclosure costs and other expenses. 

Foreclosure Procedures

All foreclosures are judicial foreclosures in the state of Pennsylvania.  That means the foreclosure process is managed within the court system.  

Lenders begin the foreclosure process by sending the borrower a Notice of Intent to Foreclose.  The borrower has to have fallen at least 60 days behind on their payments before this notice can be sent.  The notice details past due amounts and tells the borrower if they fail to pay by a specific deadline, the lender may accelerate the mortgage payments (declare the entire loan balance due– not just the defaulted amount) and take the matter to court.  Some Pennsylvania lenders send more than one notice over a 2-4 month period and give the borrower options for curing their default before they take legal action. 

If the borrower does not bring their loan current within the given time period, the lender will file a formal complaint requesting a court order to foreclosure.  The court will notify the borrower and give them one month to respond before ruling on the lender’s petition.  If the borrower fails to respond and the court finds for the lender, the court will order a foreclosure sale.   

The borrower can stop the foreclosure process at any point, up to an hour before the foreclosure sale, by paying the amount owed. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the sale process begins with the filing of a Notice of Sale.  The sheriff gives a copy to the borrower at least 30 days prior to the sale, posts a copy on the property, and advertises the sale in both a local newspaper and a local legal publication one time each week for three weeks.  The sale is by public auction with the property sold to the highest bidder.  The sheriff conducts the sale. 

The borrower has no right of redemption (right to reclaim their property) after the foreclosure sale is complete.

Lenders have up to six months to file for a deficiency judgment after the sale.  A deficiency judgment is where the lender sues the borrower for the difference between what the borrower owed and what the property sold for. 

 

Foreclosure Procedures

Lenders can use both non-judicial (out of court) and judicial (in-court) foreclosure processes when a mortgage is in default in Rhode Island, but the non-judicial process is more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender usually starts the process by sending the borrower a default letter and giving them a period of time to bring their loan current before they pursue foreclosure.  If the borrower fails to respond, the lender will engage a foreclosure attorney to act as their representative.  The foreclosure attorney will perform a title search and gather all other necessary documents to proceed with scheduling the foreclosure sale.  The attorney is required to notify the borrower before scheduling the sale and at least 20 days prior to advertising the sale. 

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, that are better resolved in court.  The lender or their trustee begins the process by filing a lawsuit and lis pendens (public notice of their intent to sue) asking the court to declare a foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender or their representative publishes a Notice of Sale in a local newspaper one time each week for three weeks with the first notice appearing 22 days prior to the foreclosure sale date.  The notice must include the property address, details of the mortgage, the amount due, and the date, time, and location of the sale. 

The sale will be conducted by public auction with the property sold to the highest bidder. 

The borrower has no right of redemption (right to reclaim their property) after the foreclosure sale is completed.

 

Foreclosure Procedures

In South Carolina, all foreclosures are judicial foreclosures.  That means the foreclosure process is managed within the court system.  

Lenders begin the foreclosure process by filing a complaint requesting a judgment of foreclosure.  This complaint is followed by a lis pendens (public notice of intent to sue) which is recorded in the county clerk’s office.  Within 20 days of filing, the lender personally notifies the borrower of their intent to foreclose and gives them 30 days to respond.  If the borrower does not pay the defaulted amount (the amount they are behind), the matter is turned over to a hearing officer.  All parties are notified of the hearing.  The hearing officer reviews the case and determines if the borrower should be found in default.   If the hearing officer finds the borrower in default, they usually give them one last opportunity to bring their mortgage current, pay costs, and stop the foreclosure process.  If the borrower fails to respond, the hearing officer will order a foreclosure sale to settle the debt. 

The borrower may stop the foreclosure proceedings at any point prior to sale by paying the default amount plus costs and fees.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, a Notice of Sale must be posted at the county courthouse and published in a local newspaper three weeks prior to the sale date. The sale is conducted at the courthouse by a court officer. 

The property will be sold by public auction to the highest bidder.  The winning bidder must pay 5% down at the end of the sale with the balance due 20-30 days following the sale. 

If the lender waives their rights to a deficiency judgment, meaning they waive their rights to sue the borrower for the difference between the sale price and what the borrower owed, then the borrower has no right of redemption (ability to reclaim their property) after the foreclosure sale.  

If the lender reserves their right to pursue a deficiency judgment, the sale will remain open for 30 more days after the bidding ends.  During this time, any bidder can place an upset bid (a bid higher than the previously high bid at auction).  After the 30-day extension, the court will award the sale to the highest bidder overall.  After the court reviews and confirms the sale, they will transfer ownership to the new owner. The confirmation process takes about 3 months.

 

South Dakota

Foreclosure Procedures

Lenders can use both non-judicial (out of court) and judicial (in-court) foreclosure processes when a mortgage is in default, but judicial foreclosures are more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  Generally the borrower receives a notice of default at least 21 days before the foreclosure sale.  The lender or their representative (also known as a trustee) then begins the sale process by recording a notice of sale in the county recorder’s office.

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, to resolve before the process can move forward.  Most lenders notify the borrower of default and give them an opportunity to bring their loan current before filing a complaint in court, but under state law they are not required to do this.  Some loan documents require borrower notification prior to filing a lawsuit. 

If the borrower fails to respond, the lender will begin the foreclosure process by filing a lawsuit and lis pendens (public notice of intent to sue) asking the court to declare a foreclosure.  In most cases, the court gives the borrower 30 days to answer the court or bring their default current before the foreclosure process begins.  If the borrower fails to respond, of if the court finds for the lender, a foreclosure sale is scheduled.   

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, for non-judicial foreclosures, the lender publishes a Notice of Foreclosure in a local newspaper.  A copy is delivered to the borrower at least 21 days prior to the foreclosure sale. 

The sale is a public auction conducted by the county sheriff.  Anyone can bid, including the lender, who may open the bidding with the balance on the mortgage.  The property will be sold to the highest bidder.  Ownership will transfer upon payment in full and expiration of the redemption period.

The redemption period (meaning, a period of time when the borrower can reclaim their property by paying the total amount owed) varies by circumstance.  For many borrowers, the redemption period is one year after the foreclosure sale.  If the property is 40 acres or less and the mortgage contains a power of sale clause, the redemption period is 180 days.  And if the property is abandoned, the redemption period is 2 months. 

 

 

Foreclosure Procedures

Most mortgages and deeds of trust in Tennessee contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in Tennessee are non-judicial foreclosures, which are handled out of court. Most lenders begin the process by sending the borrower a Notice of Default which details the amount due, a deadline for payment, and warns that failure to pay will result in foreclosure.  If the borrower fails to pay the debt as required, the lender will schedule a foreclosure sale.  The borrower can stop the foreclosure process by paying the default amount plus expenses and fees up until the time of the foreclosure sale. 

Judicial foreclosures are available in Tennessee but rarely occur; only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) and asking for a judgment of foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled.

The foreclosure process is very fast in Tennessee – usually only about 2 months from beginning to end.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the state requires the lender to publish a Notice of Foreclosure detailing the names of the lender and borrower, a property description, and the date, time, and location of the sale.  The notice is published 3 times in a local newspaper with the first publication occurring at least 20 days prior to the scheduled sale. Although not required by state law, the lender or their trustee often mails a copy of the notification to the borrower. 

The sale is by public auction with the property sold to the highest bidder.  The auction is conducted by the trustee at a place specified in the notice of sale.  

Most deeds of trust in Tennessee do not allow the borrower to redeem (reclaim) the property after the sale.  Some mortgages and deeds of trust include redemption rights of up to 2 years following the sale if the borrower pays the total debt plus costs. 

 

 

 

 

Foreclosure Procedures

Most mortgages and deeds of trust in Texas contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in Texas are non-judicial, that means they are handled out of court.

Lenders begin the process by sending a demand letter telling the borrower they have 20 days to pay the delinquent amount or foreclosure proceedings will begin.  If the borrower fails to respond, the lender can start foreclosure proceedings on day 21.  The lender then sends a second letter to the borrower saying the loan has been accelerated (meaning the full balance is now due rather than just the late payments) and a foreclosure sale has been scheduled.  The foreclosure process can move very quickly in the state of Texas. 

Judicial foreclosures do occur in Texas but only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) and asking for a judgment of foreclosure.  If the court finds for the lender, a foreclosure sale is scheduled.

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not the state requires the lender to file a Notice of Sale with the county clerk, mail a copy to the borrower, and post a copy on the courthouse door.  Texas does not require the lender to advertise the sale in a local newspaper. 

The trustee conducts the sale at the courthouse.  The sale is by public auction with the property sold to the highest bidder.  The winning bidder must pay the full amount in cash before the end of the day.

There is no right of redemption (right to reclaim the property) after a foreclosure sale in Texas. 

 

 

Foreclosure Procedures

Most mortgages and deeds of trust in Utah contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in Utah are non-judicial, that means they are handled out of court.

The non-judicial process begins with the lender filing a Notice of Default with the county recorder’s office and sending a copy to the borrower. The borrower has 3 months to pay the default amount plus costs and stop the foreclosure.  If the borrower fails to do so, the lender can schedule the foreclosure sale. 

Judicial foreclosures do occur in Utah but only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) and asking for a judgment of foreclosure.  The court determines the amount owed and allows the borrower a period of time to bring their debt current and pay costs associated with the foreclosure.  If the borrower fails to do this, the court finds for the lender and the foreclosure sale is scheduled.

Notification and Public Sale

If the loan documents specify how the foreclosure should be conducted, then those terms are followed.  If not, the lender is required to publish a Notice of Sale in a local newspaper one time each week for three weeks with the last publication occurring at least 10 but not more than 30 days before the foreclosure sale date.  At least 20 days prior to sale, the notice is also posted at the county courthouse and at the property location.

The sale is by public auction with the property sold to the highest bidder.  Sales usually take place at the county courthouse. 

The borrower has no right of redemption (right to reclaim their property) after a non-judicial, or out-of-court foreclosure sale.  Borrowers may be granted a redemption period following a judicial, or court-ordered sale. 

 

Foreclosure Procedures

There are two types of foreclosure in Vermont: Strict Foreclosure and Power of Sale Foreclosure. 

 

Strict Foreclosure assumes the lender owns the property until the borrower pays the debt in full.  If the borrower fails to pay as agreed, the lender will either take possession of the property or arrange for its sale.  To begin, the lender must first file a lawsuit petitioning the court for a decree of foreclosure.  The borrower will have 5 days to file an objection.  If the court finds for the lender, the property will be scheduled for sale. 

 

Following the sale, the borrower has either a 6 month or 12 month right of redemption (right to reclaim the property), depending upon when their mortgage was signed.

 

Power of Sale is a clause found in many mortgages or deeds of trust that permit the lender to sell the property if the borrower fails to pay the mortgage as agreed.    In Vermont, Power of Sale Foreclosures are conducted either non-judicially (out of court) or judicially (in court) depending on the type of property the loan documents are secured by.

 

Judicial Foreclosures require the lender to first file a legal complaint to get a Decree of Sale.  The lender must use this form of foreclosure if the property is two units or less and are the primary residence of the borrower.  The sale cannot be scheduled until 7 months after acquiring the Decree of Sale. 

 

The non-Judicial foreclosure process can be used if the property includes farmland or a house with more than two units.  Because the mortgage documents contain a power of sale clause, the lender can schedule the property for sale without first going through the court system to obtain a Decree of Sale. 

 

The lender begins the process by sending the borrower a notice of default, explaining the circumstances of the default, the amount owed, and giving the borrower a deadline for bringing their loan current.  This notice must be sent at least 30 days prior to scheduling a foreclosure sale. 

 

The borrower may stop the foreclosure process at any time prior to foreclosure sale by paying the amount owed plus expenses and fees. 

 

Notification and Public Sale

If the loan documents specify how the foreclosure should be conducted, then those terms are followed.  If not, the lender is required to file a Notice of Sale with the county records office and send a copy to the borrower no fewer than 60 days prior to the sale date.  The lender is also required to publish the Notice of Sale in a local newspaper one time each week for three weeks with the first notice appearing no fewer than 21 days from the sale. 

The foreclosure sale is by public auction with the property sold to the highest bidder.  The sale is usually conducted at the property itself.  The sale must be confirmed by the court or a resale is ordered.  If confirmed, ownership is transferred to the winning bidder. 

The borrower is entitled to receive any of the sales proceeds that are in excess of the amount owed, but they can also be sued for the deficiency if the sale price is not enough to cover the remaining debt obligation. 

 

Foreclosure Procedures

Most mortgages and deeds of trust in Virginia contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in Virginia are non-judicial, that means they are handled out of court.

The non-judicial process begins with the lender filing a Notice of Default with the county recorder’s office and sending a copy to the borrower. The borrower has 30 days to pay the default amount plus costs and stop the foreclosure.  If the borrower fails to do so, the lender can schedule the foreclosure sale.  At any time prior to the sale the borrower can stop the foreclosure process by paying the amount owed plus fees and expenses.

Judicial foreclosures do occur in Virginia but only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) asking for a judgment of foreclosure.  If the court grants the lender’s request, the foreclosure sale is scheduled. 

Notification and Public Sale

Unless otherwise stipulated in the mortgage, the lender must publish the Notice of Sale once a week for four consecutive weeks and notify the borrower at least 14 days prior to the foreclosure sale.

The sale will be by public auction with the property sold to the highest bidder.  The winning bidder must pay 10% of the sale price in cash on the day of sale.   The sale is usually conducted at the county courthouse.

The borrower has no redemption rights (right to reclaim their property) after a non-judicial, or out of court foreclosure sale.  After a judicial, or court ordered foreclosure sale, the borrower has 240 days to pay the bid amount plus 6% and redeem their property.  

The lender retains the right to seek a deficiency judgment if the sale price is insufficient to cover the debt.  That means the lender can sue the borrower for the difference between the sale price and what the borrower still owed. 

 

Foreclosure Procedures

Most mortgages and deeds of trust in Washington contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in Washington are non-judicial, that means they are handled out of court.

The non-judicial process begins with the lender delivering a Notice of Default to the borrower either by posting the notice at the property or by delivering the notice in person. The borrower has 30 days to pay their past due payments and stop the foreclosure.  If the borrower fails to do so, the lender can schedule the foreclosure sale.  The borrower has until 11 days prior to the foreclosure sale to pay what they owe, plus fees, and stop the foreclosure.

Judicial (in court) foreclosures do occur in Washington but only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) asking for a judgment of foreclosure.  The borrower is given 30 days to respond, or 60 days if the borrower lives out of state.  If the court finds for the lender, the foreclosure sale is scheduled. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not , Non-Judicial foreclosure sales start when the lender files a Notice of Sale with the county recorder’s office.  The lender also publishes the Notice of Sale in a local newspaper – once between the 28^th and 32^nd day before the sale, and the second time on the 7^th and 11^th day before the sale date.

The foreclosure sale is by public auction with the sale going to the highest bidder.  The buyer must pay the winning bid in full by the end of the day and can take possession 20 days after the sale. 

The borrower has 8 months to redeem (reclaim) the property after a non-judicial foreclosure sale unless redemption is ruled out in the mortgage or deed of trust.  The lender cannot file for a deficiency judgment following a non-judicial foreclosure sale.  That means the lender can sue the borrower for the difference if the property sold for less than what the borrower owed

If the foreclosure sale was court ordered (judicial) the borrower has one year from the date of sale to pay the full amount owed plus costs and redeem the property.  During this 12 month period, the borrower may continue to live in the home if it is their primary residence.  The lender can file for a deficiency judgment following a court ordered sale but cannot file a deficiency judgment if the property was abandoned for 6 months prior to the court order.

 

Foreclosure Procedures

Most mortgages and deeds of trust in West Virginia contain a Power of Sale clause permitting the lender to sell the property if the borrower fails to pay the mortgage as agreed.  Because of this, most foreclosures in West Virginia are non-judicial, that means they are handled out of court.

The non-judicial foreclosure process begins when the lender notifies the borrower that foreclosure is imminent unless they pay their missed payments and bring their mortgage current.  If the borrower has been notified of default 3 or more times, the lender could require payment of the entire loan balance to stop the foreclosure process.  If after 10 days, the borrower fails to respond, the lender can schedule a foreclosure sale.  The borrower can stop the foreclosure process at any point prior to sale by paying the loan balance plus costs and fees in full. 

Judicial (in court) foreclosures do occur in West Virginia but only if a mortgage or deed of trust lacks a Power of Sale Clause or there are legal concerns associated with the mortgage or foreclosure that are better handled in court.  The lender begins a judicial foreclosure by filing a complaint and lis pendens (public notice of intent to sue) asking for a judgment of foreclosure.  The court usually gives the borrower a reasonable period of time to respond.  If the court finds for the lender, the foreclosure sale is scheduled. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the lender is required to publish a Notice of Sale in a local newspaper one time each week for 2-4 weeks.  They must mail a copy to the borrower and other interested parties at least 20 days prior to the foreclosure sale.

The sale is by public auction with the property sold to the highest bidder.  The trustee conducting the sale may require a minimum bid of two thirds to three quarters of the estimated value of the property.  The trustee transfers ownership usually within 30 days of the sale.

The borrower has no right of redemption (right to reclaim the property) after the sale but some lenders provide a redemption period. 

 

Foreclosure Procedures

Lenders can use both non-judicial (out of court) and judicial (in-court) foreclosure processes when a mortgage is in default, but judicial foreclosures are more common.  

Lenders use the non-judicial foreclosure process when the mortgage or deed of trust contains a Power of Sale clause permitting the lender to sell the property to cover unpaid debt if the borrower defaults on the mortgage.  The lender or their representative (also known as a trustee) then begins the sale process by recording a notice of sale in the county office.

Lenders use the judicial foreclosure process when the mortgage or deed of trust does not contain a Power of Sale clause or when there are legal issues, such as a question of clear title, to resolve before the process can move forward.  Most lenders notify the borrower of default and give them an opportunity to bring their loan current before filing a complaint in court.  Some loan documents require borrower notification prior to filing a lawsuit. 

If the borrower fails to respond, the lender will begin the foreclosure process by filing a lawsuit and lis pendens (public notice of intent to sue) asking the court to declare a foreclosure.  The lender is required to send the borrower a copy of the court filing.  If the court finds for the lender, the borrower is given a period of time to pay the amount owed and stop the foreclosure.  This is called a “reinstatement period” and varies in time from 2-12 months, depending on circumstances. 

Notification and Public Sale

If the mortgage or deed of trust specifies how the foreclosure should be conducted, then those terms are followed.  If not, the foreclosure sale is usually scheduled to take place after the reinstatement period expires unless the parties involved agree to an earlier sale.  The Notice of Sale can be published before the reinstatement period ends but no earlier than 10 months after the court’s ruling.

The sale is by public auction with the property sold to the highest bidder.  The winning bidder must pay a 10% deposit at the sale.  The sheriff files a report of sale and deposits the funds with the county clerk. 

The buyer has 10 days from the date of sale to pay the balance.  If the buyer fails to pay the balance in full, the 10% deposit is forfeited and the property is relisted for sale.  If the property sells for less than the balance owed plus fees, the court will not confirm the sale and the 10% deposit will be refunded. 

The borrower has no right of redemption (right to reclaim the property) after the sale is completed.