Better Homes USA

New Jersey Real Estate- New Jersey Homes for Sale- Property Listings -Better Homes Realty

Article

State Foreclosure Laws.

Judicial Foreclosure Available: Yes
Non judicial Foreclosure Available: Yes
Alabama allows foreclosure in one of three ways:
by filing a lawsuit to foreclosure by a foreclosure sale conducted in accordance with the terms specified under a power of sale clause in the deed of trust or mortgage, or if there is no power of sale clause, then by a public sale at the courthouse steps. Foreclosure by filing a lawsuit seeking a court order to foreclose is not common. Methods two and three are more commonly used.

Power of Sale Foreclosure

Preliminary Notices

Advertising

The sale may not take place until 30 days after publishing an advance notice of the time, place and terms of the sale once a week for four consecutive weeks. The notice must be published in the county in which the property is located.

Sale Procedures

Documents May Specify Procedures

If the mortgage or deed of trust contains a power of sale clause and specifies the time, place and manner of the foreclosure sale, then that procedure must be followed.

Statutory Procedure

However, if the mortgage or deed of trust with a power of sale clause is silent as to the place of terms of the sale, or as to the type of notice of the sale, then a foreclosure sale may be made at the courthouse door of the county where the property is located, after a breach of the conditions or requirements of the mortgage, or deed of trust, by selling for cash to the highest bidder. However, in the case of a sale under a mortgagee or deed of trust with a power of sale clause, a foreclosure deed conveys the title.

Foreclosure Without a Power of Sale Clause

If the mortgage or deed of trust lacks a power of sale clause and the lender chooses not to file a lawsuit to foreclose, then the lender may foreclose by selling the property for cash to the highest bidder at the courthouse door in the county where the property is located. Advance notice of the time, place, terms and purpose of the sale must be given by publishing an ad once a week for four consecutive weeks in a newspaper in the county where the property is located.

Deficiency

The lender may sue to foreclose the mortgage without filing a suit to obtain a deficiency judgment. Alternatively, the lender may sue to foreclose, and then sue for any resulting deficiency. It is the lender's choice.

Redemption

The borrower has a right to redeem within one year after the foreclosure. Anyone who wants to redeem should obtain a statement of the price paid for the property at the foreclosure sale from whoever brought the property at the foreclosure sale. The borrower can then redeem the property by paying the purchase price, taxes, insurance, improvements and ten percent interests on the price and all other legitimate charges to the purchaser. If necessary, the borrower can sue in the circuit court to redeem the property.

Judicial Foreclosure Available: Yes Non-judicial Foreclosure Available: Yes Alaska offers two ways to borrow money against real estate: a true mortgage, and a deed of trust. The true mortgage may be foreclosed in Superior Court, according to the rules of equity. The deed of trust names the trustee who will oversee the foreclosure sale by recording and posting a notice of sale and arranging an auction to the highest bidder. Alaska law provides a procedure to appoint a substitute trustee by recording a proper notice of the appointment.

Preferred Method of Foreclosure: Non-judicial deed of trust sale.

Non judicial Power of Sale Foreclosure

The deed of trust must be foreclosed according to its own terms, provided those terms are consistent with the minimum protections of Alaska's laws.

Preliminary Notices

Recording

Not less than 30 days after the default and not less than three months before the sale, the trust will record notice of default stating the name of the borrower and the book and page where the trust deed is recorded. It must describe the property, the borrower's default, the amount the borrower owes, and the trustee's desire to sell. It must give the date, time and place of the sale.

Mailing

Within ten days after recording the notice of default, the trustee must mail a copy of the same by certified mail to the last known address of (1) the borrower, and (2) any person whose claim or lien on the property appears of record or is known to the lender or trustee and (3) any occupant. The trustee may have the notice delivered personally instead of sending it by certified mail.

Reinstatement Rights Any time before the sale, the borrower may cure the default and stop the sale by paying a sum equal to the missed payments plus attorney's fees. The lender may not require the borrower to pay off the entire remaining principal balance of the loan to cure the default; just the missed payments and attorney's fees. If the lender has recorded a notice of default two or more times, then the Alaska statutes provide that the lender can refuse to accept the borrower's monies for the missed payments and attorney's fees and proceed with the foreclosure sale instead.

Sale Procedures
Place of Sale
The front door of the Superior Court for the judicial district where the property is located, unless the deed of trust specifies another location.

Manner of Sale The trustee can conduct the auction or bring in an auctioneer to call out the sale. Postponement The trustee can postpone the sale by giving the person who conducts the sale a signed and written postponement request moving the foreclosure to a different time and place, which must be publicly announced at the time and place originally fixed for the sale.

Terms The trustee must sell to the highest and best bidder. The lender may bid at auction. The trustee's deed must give the book and page where both the original deed of trust and the default notice were recorded. It must state the notice of default was properly mailed. It must give the time, place and manner in which the foreclosure sale was conducted, and the amount paid for the property at foreclosure. After the sale, the trustee must record an affidavit that the notice of default was properly mailed.

Redemption If the lender forecloses by means of an out-of-court foreclosure sale under a deed of trust, then the borrower has the right to redeem the property. However, the borrower does not have the right to redeem if the sale was the result of a lawsuit and a court order commanding the sale.

Deficiency Judicial foreclosure permits a deficiency suit. However, if the lender forecloses through an out-of-court foreclosure sale under the deed of trust, then the lender may not sue for a deficiency judgment afterward.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Arizona.

Judicial foreclosure available: Yes
Non-judicial foreclosure available: Yes

Trustee

A trustee may conduct the foreclosure sale out of court under a power of sale clause if the borrower defaults on the loan. Alternatively, a trustee (or the lender) may sue to foreclose. A trustee may also sue the borrower for physical abuse to the property, waste, or other impairment of the security, but only so long as the borrower was in possession or control of the property when the damage was done. The trustee cannot conduct a foreclosure sale under the power of sale clause until a lawsuit to foreclose is dismissed. Under Arizona law, a bank, trust company, Savings & Loan or other institutional lender can be a trustee. Arizona licensed attorneys, real estate brokers, and insurance agents can also be trustees. The lender for any reason may appoint a substitute trustee if they record a Notice of Substitution of Trustee and mail a copy to the borrower. A trustee may resign by recording a Notice of Resignation of Trustee.

Preliminary Notices

Contents

The trustee will give written notice of the time and place of sale including legal description of the property, by each of several methods.

Recording

The trustee must record a notice of the sale in the county recorder's office in the county where the property is located.

Advertising

Once a week for four consecutive weeks, the notice must appear in a newspaper in the county where the property is located. The last notice must be published not less than ten days prior to the date of the sale.

Posting

(1) If it can be done without a breach of the peace, the trustee can post the notice at least 20 days prior to the date of the sale, in some conspicuous place on the property to be sold. (2) He or she can post the notice at the courthouse or at a specified place at the place of business of the trustee in the county in which the property is located.

Mailing

The trustee or lender must mail, within five days after recording the notice of sale, by certified mail, a copy of any notice of sale to each of the persons who are parties to the trust deed except the trustee. It must be addressed to the mailing address specified in the trust deed. The notice must set for the nature of the borrower's breach or nonperformance under the trust deed. In addition, any person will be entitled to receive a copy of the trustee's foreclosure notice if such a person records a statutory Request for Notice form.

Special Procedure

For a fee up to $20, the trustee can provide information on the unpaid balance, the name and address of the owner, the date the trustee's notice was recorded and a list of encumbrances. A trustee must honor a written request, and may honor an oral request.

Sale Procedures

Time and Place

The time and place of the foreclosure must be designated in the notice of sale.

Manner of Sale

The trustee or the trustee's agent must conduct the sale. The sale is for cash to the highest bidder, except that the lender can make a 'credit bid,' which means to cancel out some part (or all) of the money the borrower owed the lender on the lien, instead of paying cash. A successful high bidder must pay the bid price by 5p.m. of the day after the bid, other than a Saturday or legal holiday. Every bid is an irrevocable offer until the sale is completed, which happens when the bidder pays the bid price to the trustee's satisfaction. If the high bidder fails to make the payment by 5:00 p.m., the day after being notified of the option to buy, then the trustee may postpone the sale.

Postponement

The trustee may postpone the sale to another time, or another place, by giving notice of the new date, time and place by public declaration at the last place and time the property was offered for sale. No other notice is required. A trustee may also, by written agreement, extend the time for a buyer to come up with the payment.

Post-Sale Matters

The sale proceeds will go to the payment of the obligations secured by the trust deed that was foreclosed, then to junior lien holders in order of their priority. The successful bidder gets a trustee's deed, which constitutes conclusive evidence that the trustee conducted the foreclosure sale property.

Deficiency

An Arizona deed of trust permits the real estate that is the collateral for a loan to be sold at a foreclosure sale by a trustee. The proceeds of the sale will be paid to the lender, or the lender can take title to the property and cancel out the debt in exchange for the deed, called a 'credit bid.' Under a new Arizona law, a lender may not bring a subsequent deficiency suit against a person who lost a property that is 2.5 acres or less at a foreclosure, provided the property was a single one-family or a single two-family dwelling. This is so even if the high bid at foreclosure was less than the balance due on the loan. In foreclosures against other types of property, a deficiency is limited to the difference between the balance owed and the fair market value of the property, and then only if the suit is brought within 90 days of the power of sale foreclosure.

Redemption

Arizona does not recognize a subsequent right of redemption on foreclosure sales.

When you develop a definite plan of action with well-time, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclose process for the state of Arkansas.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Under Arkansas law, a residential real property mortgage held by a bank, savings, and loan or mortgage company may be foreclosed under a power of sale clause in the mortgage. Agricultural real property or construction loans operate by different rules.

Power of Sale Foreclosure

Preliminary Notice

Contents of Notice

The Notice of default and Intention to sell must name the deed of trust parties, give recordings information, describe the default and the amount due on the loan and state the trustee's or lender's intention to undertake a foreclosure sale. The notice must include in conspicuous type the following warning:

"YOU MAY LOSE YOUR PROPERTY IF YOU
DO NOT TAKE IMMEDIATE ACTION."

Advertising

The notice of default and intention to sell must be published once a week for four consecutive weeks prior to the date of the sale in a newspaper of general circulation in the county where the property is located. The final publication must be no more than ten days before the sale.

Mailing

The notice must be mailed to the borrower by certified mail to the last address the lender knows of writing ten days after recording the notice. This includes any borrower of record or of whom the lender has actual notice. The notice must also be mailed to anyone who records a Request for Notice that specifically described the mortgagee including its recording information.

Recording

The lender must record a copy of the Notice of Default and Intention to Sell.

Special Procedures - Reinstatement Rights

An appraisement of the property must be made before foreclosure day. The justice of the peace for the county in which the property is located must appoint three disinterested householders of the county where the property is located. The appraisers must take an oath that they will `well and truly view' and appraise the property that may be shown to them. The appraisers must then view and appraise the property, and then all or any two of them must write an appraisal report and deliver the same to the person holding the foreclosure sale. The person conducting the sale must make it available to any interested party. For their services, the appraiser's are paid $1 which comes from the proceeds of the foreclosure.

In any foreclosure under a mortgage or deed of trust in Arkansas, the property must sell for not less than two-thirds of the appraised value. If it does not, then it may be offered for sale within 12 months. The second sale may be to the highest bidder without reference to the appraisement.

Sale Procedures

The attorney for the mortgage or trustee may conduct the sale and act as the auctioneer. The foreclosure sale must take place at the time, date and place specified in the notice of Default and Intention to Sell, but the sale must be within certain limits.

Time

It must be held between 9:00 a.m. and 4:00 p.m. on a week day, and not on a Saturday, Sunday or legal holiday.

Place

It must be held at either the property being foreclosed on or the front door of the county courthouse where the property is located.

Manner

Any person including the mortgagee (lender) may bid at the sale, except the trustee, who may bid on the behalf of the beneficiary (lender) but not for himself or herself in deed of trust sales. The high bidder must pay the price bid at the time of sale, or within ten days. The lender may bid by canceling out what it is owed on the loan, including unpaid taxes, insurance, costs or sale and maintenance, but for cash for any higher price. The mortgage or trustee will execute and deliver a trustee's deed to the high bid purchaser.

Postponement

The sale may be postponed by public proclamation at the time, place and date last appointed for sale, up to seven days past the original date, but if for a longer time, then the whole notice procedure must be performed a second time, including the 60-day wait.

Post-Sale Procedures

The purchaser may obtain possession once the deed is recorded. The occupant of the foreclosed premises becomes a tenant at sufferance against whom the purchases may use a writ of assistance, if necessary, to effect the eviction.

The proceeds of the sale will be applied as follows: (1) to pay the expenses of the sale; (2) to the debt owed; (3) to any recorded lien holders in the order of their priority, and; (4) to the original borrower.

Within ten days after the sale, the trustee or mortgagee will file an affidavit stating that a sale was made in accordance with the law, including the time, place and date of the sale, and the purchase price. A copy must be mailed to all persons entitled to receive notice of the foreclosure as described earlier.

Judicial Foreclosure

In judicial foreclosure, a court decrees the amount of the indebtedness of the borrower and gives him or her a short time to pay. If the borrower fails to pay within that time, then the clerk of the court, as commissioner, advertises the property for sale. Sales of real property under court order will be on a credit of not less than three months not more than six months, or on installments to not more than four months credit overall. To secure payment, a lien will be retained on the property for its price. The purchaser must further give a bond with surety for the purchase price. The lender may bid at the sale. The lender can bid by crediting a portion (or all) of the amount the court found was owed to the lender against the sales price of the property purchased at the foreclosure sale. Of the real estate does not sell for an amount equal to what's due on the mortgage loan, then the lender may seize other property from the borrower as in an ordinary judgment.

Deficiency

The lender may sue the borrower for a deficiency within 12 months of a power of sale clause foreclosure. The lender may sue for (1) the difference between the foreclosure sale price and the balance due on the loan, or (2) the balance due on the loan minus the fair market value of the property, whichever is less.

Redemption

When property is sold under a chancery court order, the borrower has one year from the date of the sale to redeem the property by payment of the amount for which the property was sold plus interest. However, the mortgagor may waive the right of redemption in a mortgage or deed of trust. In the case of a deed of trust or mortgagee's sale under a power of sale clause, as described earlier, the borrower is not entitled to a right of redemption.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Non-judicial Sale

Typically, a title insurance company is named as the trustee to arrange the sale of the real estate.

California is famous for its one-action rule, in which a lender must carefully elect one action to take against the borrower if the borrower defaults. If the lender forecloses the deed of trust out of court, the lender has chosen one action and may not bring a lawsuit to recover a deficiency, which would be a second action. If the lender chooses to sue the borrower and obtain both a foreclosure order, and if the proceeds of the judicial sale of the real estate are not sufficient to repay the loan balance, then a deficiency for the balance. Such a suit is permitted as the lender's one action.

California lenders rarely elect judicial foreclosures.

Preliminary Notice: Non-judicial

Notice of Sale

The notice of sale must contain the name, street address and phone number of the trustee conducting the sale and the original trustor, along with a statement warning borrowers that their property is about to be lost at a public foreclosure sale and to contact a lawyer for an explanation.

The notice must give the street address. If no street address exists, the notice must state the address of the beneficiary from whom a set of directions to the property may be obtained if they are requested in writing within ten days from the first publications of the foreclosure notice.

Advertising

A copy of the notice of sale must be posted in a conspicuous place on the property to be sold at least 20 days before the sale. If access to the property is restricted by means of a central guard gate, then the notice must be posted on the guard gate. A copy of the notice must be posted at one public place in the city where the property is to be sold (or judicial district in rural areas) at least 20 days before the sale.

Recording

A notice of trustee sale must be recorded at least 14 days before the sale.

Mailing

A notice of trustee sale must be mailed by certified mail, return receipt requested, 20 days before the foreclosure sale to the borrower, to anyone who requests notice or recorded a request and to the trustors, beneficiaries or parties at interest.

Sale Procedures: Non-judicial

Time

All sales under a power of sale in a deed of trust will be made between the hours of 9:00 a.m. and 5:00 p.m. on any business day, Monday through Friday, at the time specified in the notice of trustee sale.

Place

The sale shall commence at the location specified in the notice of sale.

Manner

The sale must be made a public auction to the highest bidder. The trustee has the right to require every bidder to show evidence of ability to pay the full bid in cash, cashier's check or certain bank checks. Each bid is by law an irrevocable offer to purchase. However, a higher bid cancels an earlier bid. It is unlawful and a criminal offense (a fine of $10,000 or up to one year in jail) to offer anyone consideration not to bid, or to fix or restrain the bidding process in any manner.

Postponement

Sales may be postponed by announcement at the time and location specified for the intended sale. The borrower may postpone the sale in order to obtain cash, provided the written request for postponement identifies source from which the funds are to be obtained, and the postponement is only for one business day. The borrower may obtain one such postponement.

Reinstatement

Debtors may reinstate up to five days before non-judicial foreclosure sale.

Junior

Junior lien holders may no longer redeem, so they may try to protect themselves by (1) advancing funds to bring the senior loan payments current, then foreclosing for the sums advanced; (2) bidding at the foreclosure sale so the price will be sufficient to pay off the senior and the junior liens; or (3) acquire the property by bidding at the foreclosure. If the debtor has a right to redeem and does so, the junior who purchased the home must be reimbursed. Junior liens do not reattach the property if a borrower redeems a senior lien whose foreclosure extinguished the junior. This helps borrowers by encouraging the junior to bid up to the property to fair market value at the foreclosure sale, or else lose out, giving borrowers closer to fair value at sale.

Deficiency

Lenders may not seek a deficiency judgment if (1) the foreclosure is non-judicial or if (2) foreclosure is on a purchase money obligation. The same rules do not apply to guarantee or later lien holders. The lenders may seize alternative collateral. If the lender forecloses by filing a lawsuit, then the lender can obtain both a foreclosure sale order and a judgment against the borrower for a deficiency after the court-ordered sale, but only for the difference between the judgment and the fair value of the security.

Redemption

A borrower's right to redemption is terminated when a deficiency judgment is waived or prohibited. When redemption is permitted, after judicial foreclosure, only the borrower can now redeem and junior lien holders or "redemptionors" may not. When the lender is permitted to seek a deficiency, elects to pursue a deficiency and forecloses judicially, the borrower may redeem 12 months after sale, but a full credit bid by the lender cuts it to 3 months.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclose process for the state of Colorado.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Public Trustee - A Colorado Concept

In contrast to most states, where the trustee is usually the hired gun of the lender, Colorado has an impartial, accountable, "public trustee" appointed by the Governor for each county, who handles power of sale foreclosures on request. The public trustee may take only the compensation set by law. A private lender engages a public trustee by filing with the trustee two copies of a notice of election and demand for sale, the original note or a suitable bond and a mailing list of persons who must receive foreclosure notices.

Non-judicial Foreclosure

Preliminary Notices

Advertising

A notice of sale stating the time and place of the foreclosure must be advertised in accordance with the terms of the deed of trust, but under Colorado law all deeds of trust must prescribe a weekly advertising period for the notice of sale in a newspaper of general circulation, of not less than four weeks.

Recording

The public trustee must record the lender's notice of election and demand for sale.

Mailing

The public trustee must mail, within ten days after the publication of the notice of election and demand for sale, a copy of the same and a notice of sale as published in the newspaper, to the borrower and any owner or claimant of record, at the address given in the recorded instrument. The public trustee must also mail, at lease 21 days before the foreclosure sale, a notice to the borrower describing how to redeem the property.

Right-to-Cure Default

If the loan default is due to nonpayment, then the borrower can give notice of an intention to cure the default at least seven days before the foreclosure sale. The trustee must then, on request, investigate and tell the borrower the sum due on the loan. If, on or before 12:00 noon of the day before the date of the sale, the owners, parties or borrowers pay to the officer conducting the sale all delinquent principal and interest payments that are due as of the date of such payment, plus costs, expenses, late charges and attorney's fees, but not future principal (since no extra debt is allowed due to acceleration) then the foreclosure must be stopped. This right my be exercised more than one time.

Sale Procedures

Date

The foreclosure sale must be held between 45 days and 60 days after the recording of the election and demand for sale.

Place

The public trustee may conduct the sale at any door or entrance to a courthouse, not withstanding the deed of trust's provisions, or the trustee may conduct the sale at the location specified in the deed of trust.

Post-Sale Matters

The trustee will pay an excess proceeds from the foreclosure sale to creditors in order of their priority, and the balance to the grantor, who has five years to claim it. Title is conveyed by deed to the higher bidder, who may be the lender.

Deficiency

The lender may sue for a deficiency.

Redemption

The borrower has 75 days after the date of sale to redeem the premises by paying the public trustee the sum for which the property was sold, with interest. A variety of redemption periods exists for junior lien holders. Special rights exist in the case of agricultural borrowers.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Preferred Method

Judicial foreclosure. Connecticut allows foreclosure by two strange judicial methods, strict foreclosure and decree of sale.

Strict Foreclosure

Connecticut is one of the few states that still uses strict foreclosure. In strict foreclosure, there is not foreclosure sale at all, not even at the courthouse steps. The lender must go to court and obtain a court order showing the borrower to be in default under the terms of the mortgage. At that point, title shifts to the lender. However, the borrower has a length of time set by the court to redeem the property. If the borrower fails to come up with the money during that time, then the borrower is forever barred from asserting a claim to the property and title becomes absolute in the lender. From that date, the lender has one month to record a certificate of foreclosure describing the premises, the mortgage, the foreclosure proceedings, and the date title became absolute. If the lender demands possession in the foreclosure suit, the court may issue an execution of ejectment against the person in possession of the property. Possession may also be obtained by peaceable entry, unless the mortgage says otherwise. The disadvantage to the borrower is that the lender obtains title to land that might be worth much more than what was owed on the original loan. This is fort of windfall profit for the lender.

Decree of Sale

Upon motion by any party, a court may allow a mortgage to be foreclosed by a decree of sale. In a decree of sale, the court will appoint a committee to sell the property. The court also sets the time and manner of the sale. The court further appoints three appraisers. The borrower may stop the proceedings at any time by paying the balance due on the loan. If not, the committee will make the sale. Afterwards, the sale will be ratified by the court which executes a deed to the purchaser. The grantee in the deed may obtain possession of the property by court order. A supplemental judgment can direct the distribution of the proceeds of the sale. The lender need only bring those proceeds to court which exceed the balance due on the loan, which included interests and costs.

Special Protections for Unemployed Borrowers

If a residential borrower has lived in the home as a principal residence for at least two years, and the borrower (1) has not had a foreclosure action commenced against him or her in the past seven years, and (2) is unemployed or underemployed as defined by law, then the borrower can claim protection from foreclosure under Connecticut statutes. Borrowers are underemployed or unemployed under Connecticut law if the aggregate earned income of all the homeowners of the real property during the year preceding the foreclosure was under $50,000 and less than 75 percent of the average aggregate annual income during the two years prior to one year before foreclosure.

Eligibility

A court may decide that borrowers are eligible for special protection after considering two criteria: (1) the likelihood the borrower will be able to make timely payments on a restructured mortgage by the time a restructuring period ends and the likelihood of a substantial prejudice to a lender or a subordinate lien holder due to the restructuring of the mortgage debt.

Protection from Foreclosure

Under Connecticut law borrowers can get two forms of protection: foreclosure is stopped during the restructuring period. Which may last up to six months, and borrowers can obtain court ordered restructuring of their mortgage so as to eliminate overdue payments.

Restructuring the Loan

The ceiling for restructured debt is either (1) the amount of the original debt or (2) 90 percent of the fair market value of the property as determined by an appraiser at the time of the restructure. No additional debt may be restructured. Missed payments can be added to the balance of the loan in a Connecticut restructure. However, the borrower must pay interest on the amount in arrears that is added to the loan. Interest accrues on any sums added to the old mortgage debt at the end of the restructuring period, which may be fixed or variable, depending on the original note. A composite rate must be used on fixed rate loans so that the restructured debt must pay current interest rates which the main part of the loan continues at its original rate. Such composite rates are not necessary for variable interest rate loans.

Deficiency Judgment

The strict foreclosure proceeding does not include an action against the borrower for payment, but the lender can sue the borrower directly. In an independent action brought prior to or during the strict foreclosure proceeding. Once the borrower's time limit to pay the balance due on the loan expires, the lender obtains title to the property. If the property is worth more than the balance owed on the loan, the lender cannot sue for a deficiency. Please note, the lender receives all the equity in the property without paying anything in this situation. In proceedings to foreclosure by sale rather than by strict foreclosure, additional proceedings to collect a debt from the borrower are stayed during the suit seeking a sale. If the proceeds of the sale exceed the appraised value of the property , but are not enough to pay the lender's past due loan balance, then a deficiency judgment may be rendered against the borrower. If at the court-ordered sale, the property is sold for less than the appraised value, then no other proceedings to collect the debt from the borrower may be undertaken until one-half the difference between the debt and the appraised value is subtracted from what the borrower owes the lender.

Redemption

Redemption is determined by the court in strict foreclosure. Redemption by a junior lien holder is subject to any prior liens.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

In Delaware, if a borrower defaults, the lender can take several remedies simultaneously. The lender could sue to collect on the note and foreclose the mortgage. A lender could also sue on the note first, and pursue foreclosure later. However, the lender will only be permitted to recover the amount unpaid on the loan. Usually, the speediest process is scire facias, a procedure which contemplates a sale of the mortgaged property for a sum that will pay the balance on the loan, or a transfer of title to the lender, after the property has been exposed at a public sale, in exchange for a credit against some part of the balance on the loan, or up to the full balance owed on the loan.

Scire Facias

Scire Facias is a proceeding in which the borrower must show cause that there should be no foreclosure. Usually, upon breach of the terms of the mortgage, such as through non-payment of the note or breach of the mortgage conditions, the lender may seek a writ of scire facias from the Superior Court in the county in which the mortgaged property is located. The initial filing, which must be sworn to, consists of a Praecipe and Complaint. The Praecipe calls upon the Prothonotary to issue the writ of scire facias. The term scire facias is the name both of the writ and the proceeding it instigates. The writ is issued upon the default of the borrower in making payments or observing mortgage conditions, and requires the borrower to show cause why the mortgage should not be foreclosed and the property sold.

Once the writ is issued, it will be served upon the borrower by the sheriff. If the sheriff goes out and tries to hand the borrower the writ without success after repeated effort, which is called return non est., then a default liberari judgment may be obtained. (At least two separately issued consecutive writs must be returned non est.) If the borrower is served with the writ, it will command the borrower to appear before the court to show cause why the mortgage premises out not to be seized and sold to pay off the mortgage, with interest, or else pay off the lender's losses due to the borrower's non-performance. If the borrower fails to appear within 20 days after being served with the writ of scire facias, then the lender will obtain a default liberari judgment. Otherwise the borrower must prove why the foreclosure should not take place. Unless the court is satisfied with the explanation, the court will authorize the property to be seized to pay off the mortgage.

Preliminary Notices

Posting

Notices of the sale must be posted publicly and on the property in foreclosure at least ten days before the sale date.

Delivery

A copy of the notice must be run two weeks before the sale.

Sale Procedures

Person Conducting the Sale

The sale itself will be conducted by the sheriff.

Place of Sale

The place of sale must be either at the court house steps or at the site of the property in foreclosure.

Post-Sale Matters

The sale must be confirmed by the court. Once confirmed, no redemption is possible. A deed will be executed by the Sheriff to convey title to the purchaser. Deficiency judgments are possible, but only by a suit on the note, in addition to the scire facias.

Unusual Procedures

Since scire facias is purely a remedy at common law, equity law does not play a role in the proceedings. Although mortgages can be foreclosed by an equity suit in the Delaware Court of Chancery, this method is seldom used. Strict common law has some unusual results, however. In particular, the borrower's counterclaims will not be heard at the hearing on the scire facias, because they were not part of the original mortgage. Such counterclaims must be pursued in a separate proceeding rather than as part of the scire facias proceeding. However, all record owners acquiring title subject to the mortgage (terre-tenants) must be joined in the scire facias proceeding. Also persons who have equitable or legal interests of record, such as one pursuant to a judicial sale, must be joined. These changes were made in 1986 to correct a constitutional problem with the old procedure.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Florida.
The Process

In Florida, mortgages must be foreclosed by filing a lawsuit in court. As in any lawsuit, the borrower must be served with notice of the lawsuit and must be given an opportunity to appear and defend his or her rights. The lender will try to show that the borrower is in default, and that foreclosure is therefore necessary under Florida equity law. Florida is unusual in that the legislature has passed very few statutes regulating foreclosures. Most of the law on the subject of foreclosures in Florida is found scattered in dozens of cases. The basic statute, chapter 702.01 reads as follows:

All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgage. The foreclosure claim shall, if tried, be tried by the court without a jury.

Counterclaims by a borrower may be tried by a jury, but they must be tried separately from the main foreclosure lawsuit.

In Florida because the lawsuit to foreclose on a borrower is a suit in equity, it is impossible to obtain an injunction to stop what is, in essence, a court ordered sale. In addition, the court can order the sale at a low price. A sale can be set aside if there is an error in the procedure to foreclose; however, it cannot be set aside due to the low sale price. The court order commanding foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms.

After the sale takes place, the sale terms must be confirmed by the court that ordered the sale. If the terms of the sale order are met, title in the buyer's name can become complete by filing a certificate of title. At the discretion of the court, junior lien holders can redeem the property, up to the time of the confirmation of the sale. The equity of redemption is cut off when the sale is confirmed, but it exists prior to that time, which means the borrower can save the property from foreclosure by coming up with the money before confirmation.

Deficiency

A separate action for a deficiency must be filed within four years after the foreclosure sale.

Judicial Foreclosure Available: Yes

Non-judicial Foreclosure Available: Yes

Preferred Method

Non judicial foreclosure through the power of sale clause in a deed of trust, mortgage or Georgia security deed is preferred.

Judicial Foreclosure

Judicial foreclosure may be done by filing a petition in Superior Court describing the case, the amount of money owed and the property to be foreclosed. Upon the filing of the petition, the court will grant a "rule" directing that the unpaid principal, interest and costs be paid to the court. The rule must be published two times per month for two months. As an alternative to publication, the notice can be served on the borrower, the borrower's agent, or the borrower's attorney, at least 30 days before the money has to be paid in court.

Non-judicial Foreclosure

Although Georgia permits non-judicial foreclosure, such as sale are in derogation of common law, and therefore, the lender can only foreclose if the terms and conditions of the loan documents are strictly observed.

Preliminary Notices

No sale is value unless the sale is advertised and conducted at the usual time, place and manner in which sheriff's sales are conducted in the county in which the real estate is located.

Mailing

A foreclosure notice must be mailed certified mail, return receipt requested to the debtor no later than 15 days prior to the date of the foreclosure sale. The time period begins the day the letter is postmarked. The notice must be mailed to the address given to the lender by written notice from the borrower. No waiver or release of the rights to notice is valid if it was signed at the same time as the original loan papers; however, a quit claim deed conveying title voluntarily in lieu of foreclosure is valid.

Advertising

The notice must be published once a week for four weeks proceeding the foreclosure day. Notice must be published in the newspaper in the county where the sheriff's sale are normally advertised.

Sale Procedures

The sale itself must be made by public auction on the first Tuesday of the month between 10:00 am and 4:00 p.m. at the courthouse.

Deficiency

Under Georgia law, a non judicial foreclosure cannot, by itself, serve as the basis to pursue a borrower for a deficiency. In order to obtain a deficiency judgment, a lender must report the sale to the Superior Court of the county in which the property is located and seek confirmation and approval of the sale within 30 days after the sale.

Confirmation and Approval of Sale, A Prerequisite to a Deficiency

The court must hold a hearing before confirming or approving the sale. The borrower must be given notice at least five days before the hearing. The borrower must ordinarily be served personally with the notice, although service by mail can be recognized if the borrower failed to allege non-receipt of the notice. Before the court can issue an order confirming and approving the sale, the court will require evidence that the foreclosure sale price was at least equal to the market value of the property. If it was not, then the court may not confirm or approve the sale. Also, at the hearing, the court will pass judgment on the legality of the notice, advertisement and "regularity" of the foreclosure sale. The court may order a new sale of the property for good cause.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Hawaii.

Judicial Foreclosure Available: Yes

Non judicial Foreclosure Available: Yes

Foreclosure in Hawaii takes one of two forms: (1) judicial foreclosure by a lawsuit much like any other lawsuit or (2) sale under a power of sale clause in the mortgage.

Preferred Method:

Judicial foreclosure is the preferred method in Hawaii. Although trust deeds are available, they are not commonly used.

Judicial Foreclosure

In a judicial foreclosure, the Circuit court may assess the amount due on a mortgage, without a jury, and render judgment for that amount and an order of foreclosure on the mortgage. The actual sale of the property will take place in the same way as normal execution sales.

Non-judicial Foreclosure

Preliminary Notices

Advertising

Out-of-court foreclosures must be published, in English once per week for three consecutive weeks. The last publication must be run no less that 14 days before the sale date.

Mailing

Mortgage creditors having a mortgaged lien against the property that another mortgage creditor intends to foreclose on under a power of sale clause may, if a written request is given to the foreclosing mortgage creditor, receive notice of the lender's intent to foreclose. The foreclosing lender must mail the notice to the other mortgage creditors at least seven days prior to the date of the sale.

Sale

The highest bidder at the foreclosure sale buys the property.

Post-Sale Matters

A buyer at the foreclosure sale holds title subject to the existing liens. Any surplus from the sale shall be paid over to the owner of the mortgaged property.

Special Procedures

A notice of any foreclosure on a condominium apartment must be sent certified or registered mail to the association of the condominium. This notice must be sent at the time the lender begins foreclosure proceedings. This provision may not be waived.

Redemption

Redemption rights have been abolished in Hawaii.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Idaho.

Preferred Method of Foreclosure:

Non-judicial

Idaho permits non-judicial foreclosure through a owner of sale clause in a deed of trust. If the borrower goes into default, the property may be sold by giving the borrower the proper notice.

Preliminary Notice

Contents

The foreclosure notice must describe the nature of the default and the lender's election to sell. The notice must set the date, time, place and basis for the sale.

Recording

The notice must be recorded.

Mailing

The notice must be sent to anyone who requests a copy. The borrower must be given a copy at least 120 days in advance of the sale. Lessees or occupants must also be given the same notice as the borrower.

Publication

The notice must be published in the newspapers in the county where the property is located at least once a week for four consecutive weeks. The final ad must be run not less that 30 days in advance of the foreclosure. The published notice must contact a legal description of the property, its street address and the name and phone number of someone who can give directions.

Cure by Borrower or Other Purchasers

Within 15 days of the date of recording of the notice of default, a junior lien holder or the borrower can pay the amount due on the loan and a trustee's fee if the default is cured prior to the first newspaper publication of the sale.

Sale Procedures

The foreclosure sale must take place at the time called for in the notice, unless the sale is postponed. The sale can be postponed by the lender to a new time and place, but not later than 30 days after the original date. Multiple postponements are possible. The proceeds of the sale must go first to the lender, then to any interior recorded lien holders, then to the borrower.

Deficiency

The lender can sue the borrower in a separate lawsuit for a deficiency within three months following the sale for whatever sum remains unpaid on the mortgage, provided the balance exceeds the fair market value (or such reasonable value as the court finds) of the property at the time of the foreclosure.

Redemption

The real estate may be redeemed by the borrower up to one year after the sale if more than 20 acres are involved, or six months for land parcels of less than 20 acres.

The Process

Iowa law places strong restraints on foreclosures, particularly on loans for agricultural property. In Iowa, many special notices must be given to borrowers advising them of their rights. Lenders are not always permitted to foreclose at all. For example, a court may declare a moratorium on foreclosures due to an economic emergency. There are basically two ways to foreclose on nonagricultural property in Iowa:

the alternative non-judicial voluntary foreclosure procedure, in which the borrower deeds the property over to the lender and
filing a lawsuit and obtaining judicial foreclosure under equity law.
Alternative Non-judicial Voluntary Foreclosure

If both the lender and the borrower agree in writing, then a real estate mortgage can be foreclosed voluntarily as follows:

The borrower conveys title of the property to the lender.

The lender accepts title and waives any rights to sue the borrower for any other claim, such as a deficiency.

The lender gets immediate access to the property. The lender and borrower record a statement, signed by both parties that they have elected voluntary foreclosure. The lender sends by certified mail, notice of the voluntary foreclosure to all junior lien holders, who have 30 days to exercise any rights of redemption they may have. The borrower must sign a statutory voluntary foreclosure form.

The form explains that by signing it the borrower surrenders any statutory right to reclaim the property within one year and the right to continue to occupy the property. However, the form states the borrower cannot be sued for a deficiency if the form is signed. It also advises the borrower to seek legal counsel concerning all the competing rights. The form also provides for its own cancellation within five days.

If a borrower agrees to the voluntary redemption procedure, the lender may not report the borrower to the credit bureau as being delinquent on the loan, but the lender may state that the voluntary foreclosure procedure was used.

Judicial Foreclosure

Other than the voluntary foreclosure procedure described immediately above, the only way a lender can foreclose a deed of trust or a mortgage on Iowa real estate is by a lawsuit in court, governed by principles of equity law. The lender must choose either to sue on the note or sue to foreclose the mortgage, but not both. When a mortgage or deed of trust is foreclosed, the court will render judgment for the entire amount due, and direct the sale of the mortgaged property, or as much as is necessary. The lender may sue a borrower for a foreclosure with or without redemption, but the latter requires the borrower to sign a waiver.

Foreclosure with Redemption The borrower retains a right to redeem the property after the sale, unless the lender has chosen to sue for foreclosure without redemption.

Foreclosure without Redemption In the event that a lender undertakes foreclosure without redemption, neither the borrower nor junior lien holders have rights to redeem. However, if the borrower bids an amount equal to the amount owed on the loan at the foreclosure sale, then the borrower gets the property regardless of the fact that junior lien holders might bid more at the sale. In foreclosure without redemption, the first page of the lender's petition to foreclose the mortgage must contain a notice, in capital letters of the same size as the rest of the petition warning the borrower that the lender has elected foreclosure without redemption. This means that the sale will occur promptly unless a written demand is filed with the court to delay the sale. If the demand is filed, the sale of a principal residence will be delayed 12 months from the entry of judgment. (Sale is delayed two months on other properties and six months on the residence if the lender's lawsuit waives recovery of a deficiency.) However, if the borrower files such a demand for delay, then the lender can sue the borrower for a deficiency. If no demand for delay is filed, the lender cannot sue for a deficiency. Either way, however, once the sale takes place, the buyer at the foreclosure sale can take possession immediately.

Right to Cure

In Iowa a borrower has a general right to effect cure by making up missed payments prior to foreclosure. The lender must send the borrower a notice of the borrower's rights to cure as a prerequisite to foreclosure.

Before filing a lawsuit or taking any action to foreclose on a borrower's one- or two-family home, any regular lender, such as a bank, S&L or mortgage company, who believes in good faith that a borrower is in default on a deed of trust or mortgage on a homestead, must give the borrower a notice of the right-to-cure default. Individuals who are lenders do not have to give the notice.

Mailing of Notice of Right to Cure

Regular lenders must give the notice by direct delivery or by mail to the borrower's residence. The notice does not have to be given in nonresidential situations.

Contents of Notice of Right to Cure

The notice must state

the name, address and phone number of the creditor to whom payment is to be made,
a brief description of the obligation secured by the mortgage or deed of trust,
that the borrower has the right to cure the default,
the nature of the alleged default, and the total payment, in an itemized form, of deferral charges (late fees), the amount due and any other action needed to cure the default and
the exact date by which the amount must be paid or an action must be performed.
Failure to Cure by Proper Times

If the borrower fails to perform in the proper manner by the proper date, then the notice must also state that the lender can initiate foreclosure. Once notice is given. the following timetable applies:

' 30 Days

The borrower must be given no less than 30 days to cure the default by tendering (sending) either

a sum equal to all the missed payments due at the time of the tender, or
the amount stated in the notice of the right to cure, whichever is less, or by tendering any other performance necessary to cure a default as described in the notice of right to cure.
' Such Extra Time as the Lender Gives

A lender may give more than 30 days without waiving or losing the right to commence foreclosure due to an uncured default.

365 Days

A borrower has a right to cure the default by bringing in the payments, unless the creditor has given the borrower a notice of the right to cure once before within the past 365 days. Curing the default restores a borrower's rights under a mortgage or a deed.

Special Protection Farm Foreclosure

Due to the bad luck Iowa's farmers have sometimes experienced, the state legislature has passed many special laws regulating farm foreclosures. Iowa's legal protections against foreclosure of farmers are truly exceptional compared to any other state. The procedures to foreclose on agricultural property in Iowa are even more extensive. The lender must attempt mediation on land used as an individual's farm, family farm, or a qualified farm corporation through the Farm Mediation Service. A notice and initial meeting must be held within 42 days of a request by the farmer. The farmer also has a first right of refusal when agricultural property is sold at execution. There are special deed in lieu procedures for agricultural properties. In the special deed in lieu arrangement, the lender takes title, but the farmer can lease the land back from the lender, and repurchase the land within five years. The farmer may separately redeem the house and up to 40 acres from the rest of the land even after a foreclosure. Iowa's farmers should beat a path to a lawyer's office before giving up any effort to fight foreclosure. Iowa's procedures to protect against foreclosure are extensive enough that if a farmer has the will to hold on, there may often be a legal way to do so.

Regular Foreclosure

After fulfilling the vast number of prerequisites required under Iowa law, as previously described, a lender may obtain a judgment against the borrower for the full amount of the balance due on the loan. The real estate may then be sold under a general execution sale. Remember, the lender may not sue both for foreclosure and to collect on the note. So if the lender sues on the note, then, if and only if the sum found to be due is sufficient, the real estate can be sold to pay off the judgment. The sales are proper sheriff's sales. Once the property is sold, it may eliminate the loan balance or reduce it. If some part of the loan balance is left unpaid, the lender can still try to collect that part. Note that Iowa banned deficiencies on agricultural foreclosures until July 1, 1991. Also, the judgment is only good for two years and may not

Moratorium

If a borrower goes into default and is sued by the lender, the borrower may file an answer admitting a default in whole or in part, and then ask for a moratorium if the default was due to such circumstances as a crop failure due to drought, flood, heat, hail, storm or other climatic condition, or due to infestation of pests. Under such circumstances, the court can extend the foreclosure date for up to one full year. The court must appoint a receiver to take care of the property in the meantime, and the original borrower is to be given preference over other choices as receiver. The receiver may apply rents and income in a statutorily defined order.

The governor of Iowa may declare a state of economic emergency, applicable to various types of property, such as agricultural property, or to be applied to all types of property. The declaration makes such property eligible for a moratorium continuance, which may last as long as one year. However, a lender can apply to the court and show good faith efforts to restructure the debt, and show the financial difficulties the lender is faced with if foreclosure is not granted. The lender may also show that the borrower has not paid interest on the loan. Upon weighing all these competing considerations, a court may terminate the moratorium which would allow the foreclosure to go forward. Only one continuance can be granted per mortgage instrument under the governor's moratorium provisions.

The Process

In Indiana, a lender can file a lawsuit to foreclose on real estate. The date the mortgage was signed determines the length of time it takes between the filing of the lawsuit and the foreclosure sale. Here are the applicable waiting periods:

Before January 1, 1958:
12 months
Between January 1,1958-
July 1,1975
6 months
After July 1, 1975
3 months

Procedure

If the owner files a waiver of the time limit with the court clerk, which has been signed by the lender (or judgment holder), then the foreclosure sale process may begin without the need to delay 3 to 12 months. If such a waiver is used however, the lender loses the right to sue the borrower for a deficiency.

The foreclosure sale process involves publishing an ad once a week for three weeks. The first ad must be run 30 days before the sale. At the time the first ad is run, each owner must be served with notice of the foreclosure sale by the sheriff. The sheriff conveys title by a deed given immediately after the sale. The owner may reside in the property, rent free, until the foreclosure sale, provided the owner is not committing waste, which means tearing up the property.

Redemption

There is no right to redemption after the foreclosure sale. The waiting precedes the sale. If the property is not a principal residence, a receiver can be appointed to take charge of it.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

Preliminary Notices

Advertising Notice of the time and place of sale must be advertised once a week for three consecutive weeks, with the last publication no more than 14 and no less than 7 days before the foreclosure day.

Mailing

Notice must be sent to the defaulting borrower within five days of the first ad.

Sale Procedures

Place

The sale must be at the courthouse, although the district judge may order the sale on the premises or at another location.

Manner

The sale is by public auction to the highest bidder. The sheriff will at once give the buyer at the foreclosure sale a certificate of purchase. The certificate of purchase is all the buyer gets until the borrower's redemption rights expire.

Confirmation

The foreclosure sale must be confirmed by the court after the sale. The court has discretion to refuse to honor the sale and require a minimum bid or force the crediting of the market value against what was owed on the loan. Once confirmed, a sheriff's deed can be issued and it will vest good and perfect title in the foreclosure buyer. However, the court may specify as a condition of confirmation that the redemption period may run first, which is 12 months unless reduced.

Special Procedures

A judgment can stay un-enforced up to five years, at which point it becomes dormant, but is subject to revival for another two years. Afterward the judgment is barred from enforcement and the court records must reflect that fact.

Deficiency

A deficiency judgment may be obtained for the difference between the foreclosure sale price and the amount due on the loan. Deficiencies are common. However, the court may refuse to confirm a sale where the price is not equal to the judgment, which helps prevent abusive deficiency judgments.

Redemption

The borrower can redeem any real property sold at foreclosure at any time up to 12 months from the date of sale by paying the holder of the certificate of purchase the purchase price plus costs and interest. If the judge finds the property is abandoned or not occupied in good faith, then the redemption period is six months. Lien creditors must undertake redemption within three months. The former borrower's redemption period may be reduced if the lien is only one-third of the original indebtedness. The one year goes down to six months. However, the court may conduct a hearing on market value, and if the debt is one third of the court-perceived market value, then 12 months for redemption may be allowed before the court will confirm the sale.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Effectively, no

Kentucky has a rigid rule on foreclosures: no out-of-court foreclosures are valid other than voluntary sales by the borrower. A deed of trust sale, a power of sale clause in a mortgage or sale by a trustee will not work in Kentucky. The only forced foreclosure sale that is permitted is one pursuant to a court order. Also, common law or strict foreclosure is forbidden in Kentucky. The lender must be prepared to engage in litigation to foreclose in the state of Kentucky. Often the lender can win by default or summary judgment but, if not, the case is tried to a jury.

Possession

On the other hand, if the borrower abandons the home, the lender may obtain possession of the property once the borrower goes into default. The lender may operate the property for the benefit of the borrower. Any income produced goes to the lender, not the borrower, but will be credited toward paying off what the borrower owes. If the borrower does not abandon the home, the lender may not take possession until the court confirms the foreclosure sale.

Redemption and Appraisal

Prior to a foreclosure sale, the property must be appraised. If the actual foreclosure sale price is less than two-thirds of the appraised value, then for one year after the sale the borrower has the right to redeem the property from the buyer for the buyer's purchase price plus ten percent interest. Interestingly, the borrower's right to redeem may also be sold.

Deficiency Judgment

In Kentucky, it is possible to obtain a deficiency judgment against the borrower for the difference between the amount the borrower owed on the old loan and the foreclosure sale price, but only if the borrower was personally served with the lawsuit, or failed to answer.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

In contrast to the laws of most of the states, which are based on the English common-law system, Louisiana laws are based on the civil law system used throughout most of Europe and much of the world. Under Louisiana's system of laws, judicial foreclosure is the rule and deed of trust or power of sale type sales are not permitted (though Roman law itself would have allowed it).

Two Methods of Judicial Foreclosure Louisiana's two foreclosure methods are (1) ordinary process and (2) executory process. Ordinary process operates as an ordinary lawsuit in Louisiana.

Executory Process

This is an accelerated procedure of a summary nature by which the lender uses a mortgage that includes an "authentic act that imparts a confession of judgment." In practice this means the mortgage is signed before a notary and two witnesses. The borrower declares and acknowledges the obligations under the mortgage. Later, when the lender wants to foreclose, the lender files a suit in court, and attaches the original note and a certified copy of the mortgage. The court can then enter an order for the issuance of executory process.

In the past, executory process skipped citation, contradictory hearings and judgments. The problem with such procedures in the past has been a constitutional one. The U.S. Supreme Court, in the famous case of Fuentes V Shevin 1407 U.S. 67 (1972), held that the defendant in any lawsuit must be given notice of the suit and an opportunity to be heard in court. Louisiana's current executory process procedures barely comply with these requirements. Once executory process issues, the borrower is served with a demand for payments that are due and unpaid on the loan. The borrower has three days to come up with the money. If the borrower doesn't pay, the court will issue a writ of seizure and sale, armed with which, the sheriff will seize the real estate. The borrower gets a notice of seizure. The property is then advertised once a week for 30 days. The sheriff will then sell the property at auction to pay down or pay off the loan. Executory process is harsh and exacting. Executory process would allow a lender to seize possession of the property prior to reselling it at a foreclosure sale.

Ordinary Process In ordinary process the lender files a lawsuit to foreclose the mortgage. The borrower is served as a regular defendant in the lawsuit and the procedures for an ordinary lawsuit are followed. If the borrower loses, the court will enter judgment in favor of the lender. After that, a writ of fieri facias will be issued directing the property to be sold to pay off the loan.

Deficiency Judgments

The lender must obtain a deficiency judgment by an ordinary lawsuit, either in conjunction with executory process or as a separate suit. A deficiency cannot be obtained by executory process alone. Executory process will allow seizure and sale of the property, but not a personal judgment.

Redemption

Louisiana does not recognize a right of redemption..

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

Maine offers several methods of foreclosure. Most residential mortgage foreclosures are done by filing a lawsuit in the District or Superior Court. On the other hand, a foreclosure against a corporation may be done by a power of sale procedure. Otherwise, Maine still maintains the common-law strict foreclosure doctrine in which the lender owns the property and the borrower loses any rights to the property by breaking a condition in the mortgage, such as failing to make the loan payment. Although Maine is a strict foreclosure state, it nevertheless permits a lawsuit to be filed along the form of a bill in equity, which would ask the court to cut off any further rights the borrower had to the property. This would be done only in special cases. Generally, foreclosures in Maine are by strict foreclosure, which, for convenience, can be divided into those circumstances in which the lender seeks possession as part of the foreclosure, and those situations where the lender does not seek possession as part of the foreclosure.

Strict Foreclosure with Possession

In Maine, the lender may want to take over the borrower's old property. After regaining title by legal means, the lender could sell the property at a later date, without giving the borrower the benefit of any excess the lender gets out of the sale over and above what the borrower owed on the old loan. Alternatively, the lender could simply keep the property and rent it out. In sum, strict foreclosure allows the lender to become the owner, pure and simple. To become the owner through strict foreclosure, however, the lender must follow some specialized procedures. In particular, the lender must obtain possession of the property and hold it throughout the redemption period, which is one year on pre-1975 mortgages and three months on post-1975 mortgages.

In Maine, there are three methods for the lender to regain possession as part of the strict foreclosure process:

A lender can obtain a writ of possession (which authorizes the sheriff to throw the borrower out) from a court by filing a lawsuit that asks for the writ as part of a conditional judgment.
The lender can enter the property and take possession if the borrower consented to it in writing.
The lender may enter the premises peacefully, openly and without opposition, in the presence of two witnesses.
Strict Foreclosure Without Possession

In Maine, a lender can foreclose the borrower's rights to the property without regaining possession at the time of foreclosure by arranging to sell the borrower's property. Initially, the lender files a lawsuit and wins a judgment that the borrower owes the money; then the lender must wait until the end of the redemption period, as described previously. At the end of the redemption period, the lender will sell the property by a special procedure.

The procedure is to publish public notice of the impending foreclosure for three successive weeks in a newspaper of general circulation in the county where the land is located. The notice should state that the lender is claiming the property due to a breach of the mortgage conditions (such as nonpayment of the loan) and give a description of the property, the date of the mortgage and the nature of the breach. A copy of the printed notice and the name and date of the newspaper in which it was last published must be recorded within 30 days of the last publication of the notice. Alternatively, an attested (sworn) copy of the printed notice may be served on the borrower by the sheriff, and a copy of the notice and the sheriff's return (indicating that it was served) may be recorded within 30 days after service.

The foreclosure sale must take place no less than 30 days and no more than 45 days after the initial publication of notice. The property must be sold at public sale to the highest bidder, which may be the lender or anyone else. At the end of the sale, the sales costs are deducted and the lender must disburse the remaining money in accordance with the foreclosure judgment. Junior lien holders should already have been joined when the foreclosure suit was first filed, so they may get some part of the proceeds. Any surplus proceeds from the sale must be paid to the borrower. The borrower may contest the accounting within 30 days after the sale, but the high bidder at the foreclosure sale will still retain title.

Deficiency

Any deficiency based on the foreclosure sale is limited to the difference between the fair market value of the property at the time of the foreclosure, as established by an appraisal, and the amount of money the court found the lender was still owed on the loan, as set forth in the court's final judgment.

Redemption

Maine offers the borrower a fairly powerful right of redemption, which is the right to get the property back after foreclosure by coming up with the loan money. There are two redemption time periods:

Pro-October 1, 1975, mortgages: one year
Post-October 1, 1975, mortgages: three months
The time period begins once the lender wins a judgment in the foreclosure lawsuit. The borrower may redeem the property by paying off the loan. The Maine statutes cannot shorten the one-year time period on pre-1975 mortgages be cause to do so would violate the Maine State Constitution by impairing the existing provisions of a contract.

Waiver

Maine has a waiver procedure that can be deadly to the lender and helpful to the borrower. If the lender accepts money or anything of value on the mortgage debt after the foreclosure has begun and before the redemption time period has expired, then the lender waives the foreclosure procedure. However, the lender may receive income from the property after properly taking possession without triggering a waiver.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No (but assent to decree is allowed)

Maryland offers two basic methods of foreclosure:

power of sale foreclosure, in which the lender or another person named in the mortgage or deed of trust, may sell the property and
assent to decree foreclosure, in which the borrower agrees to permit the court to order foreclosure.
In either case, however, the lender must file a lawsuit in court to foreclose. The same is true if the mortgage instrument lacks either a power of sale clause, or an assent to decree clause, but in that event, the lawsuit will be more complicated.

When the mortgage contains a power of sale or assent to decree clause, and if 25 percent of the involved lenders (as measured by the percentage of the total dollars of mortgage debt against the property) consent or make application for sale, then no service of process, answer or hearing is required. This simplifies the lawsuit. On the other hand, if the mortgage contains neither a consent to a decree clause nor a power of sale clause, or if a foreclosure sale is desired prior to the court's final decree, then there must be service of process, an answer and a hearing. However, in the latter case, 25 percent of the lenders do not have to join in filing the initial lawsuit.

Power of Sale Foreclosure

Power of sale clause foreclosures must be done under court supervision in Maryland. A person desiring foreclosure must file a lawsuit asking for foreclosure pursuant to the power of sale clause. The lender must do the following:

Include in the lawsuit paperwork a sworn statement of the amount of the mortgage debt and a certified copy of the mortgage.
Post bond for the amount approved by the clerk.
Publish notice of the time, place and terms of the sale once a week for three weeks prior to the sale, with at least 15 days' notice of the foreclosure sale.
Mail the foreclosure notice by certified mail, return receipt requested, to the borrower no less than 10 and no more than 30 days before sale.
The notice must also be mailed to the present owner and holder of any junior mortgage or other lien that has been recorded who also recorded a request for notice.
Assent To Decree Foreclosure

Under an assent to decree foreclosure, the lender must file a lawsuit in court to foreclose. The court will then enter a decree ordering the property to be sold and appoint the trustee to conduct the sale. The trustee must post a bond and sell the property according to the terms fixed by the court. The court will later confirm the sale.

Deficiency

In Maryland a deficiency judgment may be obtained if the lender makes a motion for it within three years after the accounting before the foreclosure is complete.

Redemption

Maryland foreclosure proceedings take place as an action under equity law. Maryland has not seen fit to establish a specific time limit on how long the borrower has to wait to redeem real estate lost in foreclosure. However, the Doctrine of Laches prevents this time period from being unreasonably long.

The Process

In Massachusetts, there are two methods by which a mortgage may be foreclosed:

the lender may enter and take possession of the property by several alternative means, in which case the lender's ownership can become final after three years, and
the lender may complete a non-judicial sale under a power of sale clause.
The first method, entry and possession, is seldom used as the primary means of foreclosure. Instead it is used as a backup in case of technical error in non-judicial sale procedures. The first method is essentially a variation on the strict foreclosure theme. The second method, a foreclosure sale under a power of sale clause, is the usual procedure. The power of sale foreclosure takes place out of court. In spite of the fact that the power of sale foreclosure is conducted out of court, it is nevertheless customary to file a lawsuit before attempting such a sale in order to make sure that the federal Soldier and Sailor's Relief Act does not apply to the borrower's situation.

Entry and Possession Procedures

A lender can foreclose in Massachusetts by lawfully taking possession of the premises and then waiting three years for title to become final in the name of the lender. Lawful recovery of possession can be done by several alternative means:

file a lawsuit and obtain a court order giving the lender possession,
enter peaceably and take possession or
obtain the borrower's proper consent to entry.
The first method consists of filing a lawsuit to recover possession. The lender's lawsuit must allege that there was a breach of a condition in the mortgage, such as failing to pay the loan. If so, the court may render a conditional judgment giving the lender possession. The court will also grant a writ of entry which will permit eviction of the borrower. However, the borrower may recover possession within two months by paying the amount due under the mortgage or correcting any other breach of the mortgage. Unless the borrower can come up with enough money to pay off the mortgage within three years, however, the lender's ownership becomes final and the borrower's right to redeem the property is cut off.

The second method the lender can use to recover possession lawfully is for the lender to openly and peaceably enter the mortgaged premises. Two witnesses must swear that the entry was proper. Once in possession, the lender has to wait three years for full title.

The third method the lender can use to recover possession is to obtain the borrower's consent. The borrower must sign and record a written memorandum to the mortgage deed. The recording must be done within 30 days from the signing. Once again, the lender must wait three years for full title under this method.

During the time the lender obtains possession pending foreclosure, the lender must account for rents and profits. The lender may deduct the costs of reasonable repairs and improvements.

Power of Sale Clause Foreclosure

In Massachusetts the usual method of foreclosure is through sale under a power of sale clause in the mortgage. The sale must be conducted in accordance with the requirements specified in the power of sale clause. Notice of the foreclosure must be published once a week for three weeks in a newspaper of general circulation in the town where the land is located. The first publication must be at least 21 days before sale. Notice must also be sent by registered mail to any owner whose interest was recorded as of 30 days prior to the sale. The actual date of mailing must be at least 14 days prior to the foreclosure sale.

In Massachusetts there is an exhaustive list of potential addresses to which the lender must mail the foreclosure notice, the purpose of which is to make sure the borrower gets a copy of the notice, if it is at all possible. Initially the lender should mail the notice to the address found in the registered land records, or if none is found, then to the last known address appearing in the lender's records, or if none is found, then to the address on the deed or probate petition. If the address is still not found, then it should be mailed to the last address to which a tax bill was sent any time within the previous three years. If that address can not be found, then to any address shown in the deed or documentation for any other land owned by the same owner. Nevertheless, there is no requirement for the borrower to actually receive the notice, merely for the lender to make a diligent effort to locate the borrower. Notice should also be sent to any junior lien holders.

The actual sale must be conducted at the date, time and place specified in the notice. The sale will be made to the highest bidder. Within 30 days after sale, the person selling the property at foreclosure must record a copy of the notice of sale and an affidavit that the foreclosure sale was properly conducted. Any lien or encumbrance on the property that was not part of the mortgage that was foreclosed on and not included in the auctioneer's bargain remains intact and can affect the title to the property after the foreclosure sale. If there is any money left from the foreclosure sale after paying off the lender, the surplus goes to the borrower. A proper sale prevents the borrower from exercising any right to reclaim the property through redemption.

If a suit in equity is filed to clear up problems that could result from the Soldier and Sailor's Relief Act of 1940, service is considered sufficient if the above described notices were published 21 days before the return day and mailed 14 days before the return day for the lawsuit. The return day is the day by which the lawsuit must be answered.

Deficiency

If the foreclosure sale proceeds are not enough to pay off the lender, then the borrower is liable for any deficiency. However, the statutory notice of intention to foreclose must have been sent at least 21 days before the sale. Furthermore, the affidavit that the sale was complete must be on record 30 days after the sale. Otherwise, no deficiency can be obtained. The statute of limitations on deficiency judgments is two years after the date of foreclosure or two years after the loan payments were accelerated and the loan's unpaid balance was made due entirely. If there was no foreclosure sale under a power of sale clause, and the lender attempts to sue the borrower on the theory that the value of the real estate the lender obtained at foreclosure was less than the balance due on the loan, then the borrower has a right to bring a suit for redemption within one year after recovery under such a judgment.

Redemption

The basic rule in Massachusetts is that the foreclosure under a properly conducted power of sale clause cuts off the borrower's right to redeem. The sale must be conducted in good faith and the lender must use due diligence to comply with the statutory requirements for a power of sale foreclosure, as previously outlined.

Interestingly, however, the borrower may use the right of redemption as a vehicle for slowing down a foreclosure sale, even though the lender is attempting to foreclose under a power of sale clause, which normally cuts off the right of redemption. A borrower may bring a suit to redeem the property before the first notice of sale is published. Such a suit will delay the foreclosure sale. The court must determine the amount due under the mortgage on which conditions remain unperformed such that if the amount is paid or the conditions are performed, the borrower will have a right to redeem. The court can specify a time period and manner for payment or performance, and if the borrower complies with the court's specified conditions, the borrower will have a right to discharge the mortgage and receive a decree regaining possession- If the borrower fails to perform by the time and in the manner specified by the court, the lender can proceed to mail and publish the foreclosure notices (14 days and 21 days, respectively) and then hold the foreclosure sale.

The Massachusetts Uniform Fraudulent Conveyance Act and Bankruptcy

The Massachusetts bankruptcy courts have shown a particular willingness to invalidate foreclosure sales. Because of this propensity, numerous additional steps should be taken if a lender forecloses in Massachusetts. The U.S. bankruptcy courts for Massachusetts have ruled that all the statutory procedures outlined above may be insufficient to guard against invalidation of the foreclosure sale if the borrower files bankruptcy after the foreclosure. If the sale took place for less than market value, it may be ruled to be a fraudulent conveyance, under section 548 of the Bankruptcy Code, which commands that reasonably equivalent value must be obtained before the foreclosure sale will be left undisturbed by the bankruptcy court. Reasonably equivalent value is market value.

The invalidation of a foreclosure at less than market value can also be accomplished through the application of the Massachusetts Uniform Fraudulent Conveyance Act. Therefore the lender should take further precautions by appraising the property at the time of foreclosure, by advertising it in the real estate section of the newspapers, by mailing a notice of the sale to anyone who expressed an interest in buying the property, and by notifying real estate brokers in the immediate vicinity that the property is for sale. All of these steps should be taken if the lender wants to be sure to avoid future trouble from the borrower's bankruptcy petition after the sale, or a suit to set the sale aside under the Massachusetts Uniform Fraudulent Conveyance Act.

The Process

Michigan uses two forms of foreclosure: foreclosure by court action and foreclosure by advertisement. A mortgage may be foreclosed by filing a lawsuit in the Michigan circuit court. The court may order the property sold six months after the initial filing of the lawsuit. The property will be sold by the circuit court commissioner or any other person who is appointed by the court to conduct the sale. After the sale, the borrower has six months to redeem.

Foreclosure by Advertisement

If the mortgage contains a power of sale clause and there has been a breach of the terms of the mortgage, such as nonpayment of the loan, then the property may be foreclosed on through a non-judicial foreclosure by advertisement, unless the mortgage is held by the Michigan state housing development authority. Nonpayment of any installment of a mortgage constitutes a separate act which justifies foreclosure.

The notice of a foreclosure sale must be published once a week for four weeks in a newspaper of general circulation in the county where the land is situated. Within 15 days after the first publication, a true copy of the foreclosure notice must be posted in a conspicuous place on the premises described in the foreclosure notice. The lender or the lender's agents have a right to enter the mortgaged premises to post or deliver foreclosure notices.

The sale must be a public sale, conducted between the hours of 9 o'clock "in the forenoon" and 4 o'clock in the afternoon. The sale must be at the courthouse or place where the circuit court for the county tries lawsuits. The sale is to be conducted by the person appointed for the purpose in the mortgage, or by the sheriff, under sheriff or deputy sheriff. The sale must be made by auction to the highest bidder. The sale may be adjourned from time to time by posting a notice of such adjournment at the time and place where the sale would otherwise have been made. Any adjournment for more than a week must also be published in the same newspaper as the original notice, within 10 days from the date the sale was adjourned, and again once per week for each week the sale is adjourned.

The officer or person conducting the sale will execute, acknowledge and deliver a deed to the premises to the high bidder at the foreclosure sale. The deed must specify the last date by which the borrower can redeem the property. The deed must be recorded within 20 days after the sale. The register who records the deed shall endorse the time the deed was received. If the property is ever redeemed, the register will destroy the deed and record the word redeemed on the face of the special book for foreclosure deeds. The deed and the foreclosure do not wipe out liens or claims that existed prior to the date of the original mortgage.

Redemption

The borrower may redeem by paying the lender the sum for which the property was sold at foreclosure, plus interest at the same rate as the mortgage. If the foreclosure buyer recorded an affidavit staling how much in taxes and insurance the foreclosure buyer paid, following the foreclosure sale, then the borrower must repay that amount as part of the redemption process.

If a property is over four units or three acres and has not been abandoned, then the time period for redemption is one year from the date of the foreclosure sale. If the property has been abandoned, and if the balance is over two-thirds of the original loan, then the redemption period is one month. If the balance is two-thirds or less of the original loan, use one year. If the property is four units or less and does not exceed three acres in size, then two different redemption time periods apply.

If the mortgage was originated after 1965, and if the amount
that remains unpaid on the loan is more than two-thirds of the original debt, then the borrower still has six months to redeem.
If the unpaid balance on a mortgage is less than two-thirds of the original debt, then the borrower has only three months to redeem if the property has been abandoned.
Abandonment

For residential property of four units or less, or three acres or less, abandonment shall be presumed in the following circumstances:

Personal Inspection

The lender has made a personal inspection of the premises and the inspection does not reveal anyone who is presently occupying or about to occupy the premises.

Borrower Fails to Respond to Proper Notice

The lender has posted a notice at the time the personal inspection was made, and mailed it by certified mail, return receipt requested, to the borrower's last known address. The notice must state that the lender considers the premises to be abandoned, and that the redemption period in such event will be only 30 days. If the borrower does not respond to these notices within 15 days by mailing to the lender (first class mail) a letter staling the premises are not abandoned, then the premises are considered to be abandoned. Obviously, a borrower who wants to preserve his or her rights should get busy and write the lender to show the premises are not abandoned or else the borrower will lose most of the benefits of the right of redemption.

Deficiency

A lender is restricted to foreclosing against the property as the sole remedy, unless the lender has a separate document that obligates the borrower to pay a sum certain, such as a promissory note, or the borrower has otherwise agreed to pay a sum in a specific amount stated in the mortgage document. In order to recover a deficiency amount, which would be the balance due on the mortgage minus the sum collected at the foreclosure sale (or credited if the lender bids by canceling out some of the borrower's obligation), the lender must file a lawsuit. The borrower can defend by showing the foreclosure sale price was less than the true value of the property at the time and place of the sale. If the sale was for substantially less than the true value, the deficiency sum the lender can recover may be either defeated or reduced by crediting the property's fair value against the unpaid loan balance at the time of the foreclosure. However, these defenses do not apply if the lender forecloses by court action rather than by foreclosure by advertisement.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Minnesota allows foreclosure in two ways: by advertisement and by court action. If court action is selected, the lender must file a lawsuit and obtain a judgment for the amount due and a court order commanding the property to be sold. Prior to attempting any foreclosure, the lender should give at least 30 days' notice of the existence of a default. For agricultural property, complex mandatory mediation procedures must be followed.

Non-judicial Sale by Advertisement

If the mortgage contains a power of sale clause, it may be foreclosed by advertisement. However, a number of conditions must be met before sale by advertisement can be undertaken.

There must be a default on the mortgage,
no lawsuit to collect on the mortgage may be underway,
the mortgage itself and any assignments of the mortgage to new lenders must have been recorded and
the notice must be given eight weeks before foreclosure on a homestead.
If an attorney is involved in the foreclosure, the attorney's authority must be shown by a power of attorney that has been properly recorded. Attorney's fees are set by statute for foreclosure sales. Hence, the borrower cannot be billed indiscriminately for attorney's fees during the foreclosure process.

Certificate of Sale

After the sale, the sheriff will prepare a certificate showing the amount of the sale and the amount left unpaid on the loan.

Special Procedure - Right of First Refusal

Borrowers have a complex right of first refusal when land is acquired by a state agency, a federal agency, a limited partnership or a corporation (other than a family farm corporation). Once the agency or business acquires land by foreclosure, it will ultimately try to resell it. When it tries to resell, the old owner who lost the property in foreclosure must be offered the property in preference to any other purchaser at the price and terms an outside buyer is willing to accept for the property. The lender must make a good-faith effort to let the old owner buy it first, hence the term right of first refusal. The law applies for the first five years after the property was foreclosed on. The right of first refusal may not be waived or assigned, except to family members by inheritance.

Deficiency

Any deficiency is limited to the difference between the fair market value of the property, as determined by a jury, and the unpaid balance remaining on the old loan. To recover a deficiency judgment against the borrower, the lender must file a lawsuit against the borrower. If the lender already seeks foreclosure by a lawsuit, then all the lender has to do is add a claim to the existing lawsuit. However, when the foreclosure is by advertisement, then an independent lawsuit must be filed to recover a deficiency.

Redemption

Redemption is unusual in Minnesota. The borrower or a junior lien holder has up to one year after the foreclosure to redeem the property by making all the past due payments rather than the entire loan balance after acceleration.

Preliminary Notices

Contents

The foreclosure notice must name the borrower the original lender, any takeover lender, the original loan amount, the date of the mortgage, recording information, the amount currently due on the loan including back taxes and unpaid insurance, a property description, the time and place of the impending foreclosure sale and the time allowed by law for the borrower to redeem the property.

Sale Procedures

Documentation

Before the sale, the lender must file a verified, itemized statement with the sheriff showing the amount due. This statement must be read during the sale by the sheriff.

Time and Place

The time, place and date of the foreclosure are set forth in the foreclosure notice.

Manner

In Minnesota, the actual foreclosure sale must be conducted by public auction. The sale is to the highest bidder.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Mississippi.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Mississippi offers two methods of foreclosure: by filing lawsuit asking for foreclosure in a Chancery Court and by sale, if authorized in the mortgage and conducted in compliance with Mississippi's statutes. The borrower's right to properly conduct of the sale, after proper notice and advertisement of the sale, may not be waived in the loan documents. Any defect in the sale that would cause it to be void may not be corrected by the statute of limitations until ten years have passed from the date of the defective sale.

If the deed of trust contains an authorization for the lender to call upon a trustee to sell the real estate due to the borrower's default on the loan, such as by non-payment then the real estate may be sold by the trustee named in the deed of trust (or later appointed as a substitute) to try and pay off the loan. No sale by a substitute trustee is valid unless it was first recorded in the Office of the Chancery clerk of the county where the land is located, prior to the first posting or publishing of the foreclosure sale notice. If the lender, instead of some other buyer, acquires title to the real estate at foreclosure, then the lender will give credit for the foreclosure sale price against what was due on the loan.

Preliminary Notices

Advertising

In order to be valid, the foreclosure sale must be advertised for three consecutive weeks before the sale in a newspaper of general circulation in the county in which the land is located.

Posting

In addition, one notice must be posted for the same time at the county courthouse door. The notice must name the borrowers who will lose title.

Cure Procedure

The borrower may stop the foreclosure at any time prior to the sale by coming up with the missed payments, accrued costs and attorney's and trustee's fees. Only the amount that is actually past due needs to be paid. Even though the loan documents provided that the lender could accelerate the loan and make all future payments due, the borrower has the legal right to disregard the acceleration and stop the foreclosure by paying up the missed payments, accrued costs and attorney's and trustee's fees. The loan is then to be treated as though it was not accelerated. The borrower may continue to own and occupy the property and the lender may not foreclose.

Sale Procedures

Place

The place of sale should be the same as the place of sale for sheriff's sales of property in the county, which is usually the courthouse.

Manner

The sale must be made by public outcry in the county where the land is located, or in the county where the borrower lives. The sale must be for cash to the highest bidder.

Post-Sale Matters

After the sale, the trustee or substitute trustee must deliver a trustee's deed to the successful high bidder. The deed should give the names specified in the old deed of trust that was foreclosed on. The trustee's deed should also give information sufficient to locate the foreclosed deed of trust or mortgage in the deed records.

Special Procedures - Foreclosure and Major Disasters

In Mississippi, the governor may declare that a natural disaster, an enemy attack, or a man-made technological disaster makes it imperative to impose a moratorium on foreclosures. The moratorium may last for up to two years after the governor's declaration. The borrower can go to court and file a lawsuit to enjoin a lender from foreclosing. This would be due to damages to the mortgaged premises or because of economic conditions brought about by enemy attack, natural disaster or man-made technological disaster causing the fair market value of the property to decline by 15 percent, if refinancing is impractical under the circumstances. No cash is required on the injunction. The borrower must take action because a foreclosure conducted during a moratorium while the borrower did nothing is valid, even though the borrower could have won by exercising these rights.

Redemption

A foreclosure sale under a deed of trust is final in Mississippi. There is no right of redemption.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Missouri.

The Process
Missouri permits two types of foreclosure:

Judicial, and
Judicial under a power of sale clause.
In judicial foreclosure the lender may file a petition in the office of the circuit court against the borrower and the tenants or occupiers or property. The petition states the nature of the mortgage and formally requests the court to render judgment for amount of the debt, to foreclose the equity of redemption (preventing the borrower from recovering the property by paying the mortgage) and to order the property sold to satisfy the amount due. Such a lawsuit will be handled in the same manner as other civil lawsuits. The borrower may be served in person or by constructive notice through publication if personal service efforts prove to be fruitless.

Power of Sale Foreclosures

Missouri permits foreclosure under a power of sale clause in a mortgage. Before proceeding with a foreclosure sale under the power of sale clause, the lender must give the borrower 20 days notice of the sale, whether or not the mortgage or deed of trust provides for such notice. The property must be advertised for sale as follows:

In counties with over 50,000 inhabitants, the notice foreclosure sale must be published at least twenty times in the daily newspaper and continued to the day of sale.

In counties with under 50,000 inhabitants, the notice foreclosure must be published once per week on the same day each week in a daily, tri-weekly, or semi-weekly newspaper for four successive issues, with the last publication to be not more than one week prior to the foreclosure sale.
An affidavit of the printer or publisher may serve as evidence of publication.

Mailing of the Foreclosure Notice

The trustee who conducts the foreclosure sale must mail notice of the foreclosure sale not less than 20 days prior to the scheduled date of the sale to the following parties:

The borrower named in the deed of trust or mortgage at the last known address for the borrower.
The person shown by the office of the recorder's deed of records to be the owner of the property as of 40 days before the foreclosure sale, to the last known address shown in the lender's records for such recorded owner.
Any person whose name and address is set forth in, request for notice that has been duly recorded 40 days in advance of the foreclosure sale date
The notice must be in the following format:

In accordance with R. S. MO 443.325, request is hereby made that notice of sale under the deed of trust (or mortgage) recorded the ___ day of ____ 19__, (as recorder's number ____ or in Book ___,.) of the records of County, Missouri, the legal description of the property being __ in ____ County, Missouri, executed by ____ as Grantor (or Mortgagor) in which______________ is named as beneficiary (or Mortgagee) and____________ as Trustee, be mailed to ___ (Name) at _______________(Address) _____. (City) _____, (State).

(Signature)

_______________________

_______________________

(Acknowledgment)

Receipt of Foreclosure: Notice Not Necessary

The borrower does not have to receive the envelope containing the notice of foreclosure pursuant to a deed of trust or mortgage. Recording of the receipt issued by the U.S. Post Office for certified or registered mail to evidence that the envelope has been delivered by the sender to the U.S. Post Office shall constitute proof of compliance with the notice requirements.

Trustees

The person named in the deed of trust or mortgage must conduct the foreclosure sale. However, if the trustee is dead, neglects this duty or is incapacitated, a new trustee can be appointed if the lender files a motion in court requesting a new trustee, and the court feels the circumstances justify an appointment, in which case the sheriff or another suitable person approved by the Judge can conduct the sale. A foreign corporation may not be a trustee for foreclosure in the state of Missouri, unless a co-trustee who is a resident of Missouri is named. Certain nearby states can authorize a Missouri corporation to act in a fiduciary capacity for an outside corporation. A trustee may collect a 2 percent commission on the first $1,000,1 percent on sums over that amount but under $5,000, and 0.5 percent on sums over that amount.

Sale Procedures

The trustee must conduct the sale in a fair manner at the time and place and in the manner specified in the notice of foreclosure, the deed of trust and the statute. The property is to be called out for sale and sold to the highest bidder. The lender may purchase at the sale, but if it does so, a right of redemption applies.

Redemption

If any person other than the lender, or someone purchasing on behalf of the lender, buys the property at a fairly and properly conducted foreclosure sale, then no right of redemption exists. If, on the other hand, the lender buys at the foreclosure sale, as is so often the case, then the borrower has a right to redeem the property for one year from the date of sale.

In order to obtain the right of redemption, however, the borrower must meet many requirements. First, the borrower must give the trustee or other person conducting the sale advance notice, ten days prior to the sale, of the borrower's intent to redeem. Second, the borrower must arrange a bond on which there is one good surety, besides the borrower, who can stand good for a sum of money equal to the interest that would accrue throughout the year on the mortgage, and on any prior lien loan, together with the foreclosure costs, taxes and assessments, and furthermore, a sum equal to 6 percent of all the sums bid by the successful bidder at the foreclosure sale, whether they were advanced in cash or not. The bond must be sufficient to cover any waste or damages inflicted on the property by the borrower. The bond must be in place 20 days after the sale, or else the borrower has no right to redeem.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Montana .

The Process
Real estate may be foreclosed on by filing a lawsuit or by conducting a non-judicial private foreclosure sale in compliance with Montana law. Montana has some unusual mortgage provisions that have been largely replaced by the Small Tract Financing Act of Montana for homesteads and small business real estate. If the tract of land is 15 acres or less, then the lender may use a trust deed that provides for a relatively quick and inexpensive foreclosure procedure. Unless the Small Tract Financing Act applies, then the lender must foreclose either by filing a lawsuit and seeking an order of sale, or else following a special foreclosure procedure.

Under Montana's special foreclosure procedures, if applicable, the lender or person conducting the foreclosure sale must publish, post and serve a foreclosure notice at least 30 days in advance of the foreclosure sale. The notices must be advertised in a newspaper where the real estate is located, and if there is no newspaper, then by posting the notices in five conspicuous places in the county. Two other notices must be posted in conspicuous places in the township in which the land is situated, and one such notice must be in such a conspicuous place as will be most likely to give notice to all persons of the sale, and one must be posted at the front door of the county courthouse. The notice of sale must be further served on the occupant of the property to be foreclosed on and upon every person claiming an interest in the property who may be found in the state of Montana.

Small Tract Financing Act Foreclosure Procedure

If the tract of land is less than 15 acres, then the Small Tract Financing Act applies to the foreclosure under the power sale provisions of a deed of trust. If there is a default on a loan obligation secured by the deed of trust, and then recorded a notice of sale, duly executed and acknowledged by the trustee named in the deed of trust, which sets forth l proper information, then the foreclosure may be done out of court. The contents of the foreclosure notice must include:

The names of the borrower, lender and trustee.
A description of the property in foreclosure.
A description of the default causing the foreclosure.
The book and page where the trust deed is recorded.
The sum owing on the defaulted loan.
The trustee's or lender's intention to sell the property or pay off the debt.
The date of the sale, which shall be not less than 120 days subsequent to the date the foreclosure notice is filed for record.
The time of the sale, which shall be between the hours of 9 A.M. and 4 P.M., mountain standard time.
The place of the sale, which shall be at the courthouse in the county in which the property is located, or at the office or usual place of business of the trustee if it's within the county in which the property is located.
Mailing of Foreclosure Notices

The trustee, at least 120 days before the date fixed for the foreclosure sale, must mail foreclosure notices by registered or certified mail to the following persons:

The borrower, at the borrower's last known address
Any person who recorded a request for notice
Any record title owner as of the notice filing date
Posting

At least 20 days before the date fixed for the trustee's sale, a copy of the recorded notice of sale must be posted in a conspicuous place on the property to be sold. The trustee may request the sheriff or constable of the county to post the notice. A copy of the notice shall be published in a newspaper of general circulation in the county in which the property is located once per week for three successive weeks. The posting and the last publication shall be made at least 20 days before the date fixed for the trustee's sale.

Recording

On or before the date of the sale the trustee must record an affidavit stating that the requirements of mailing, posting and publication have been met.

Sale Procedures

At the date, time and place specified for foreclosure in the notice of sale, the trustee or his or her attorney shall sell the property at public auction to the highest bidder. The sale may be postponed up to 15 days by a proclamation made at the time the foreclosure sale would otherwise have taken place. The purchaser must pay the high bid price in cash. In return, the purchaser will receive a trustee's deed. If the purchaser fails to pay, then the trustee can resell the proper at any time to the highest bidder. The trustee may reject any further bidding by a bidder who fails to produce cash in response to winning a bid.

Redemption

Although the old statutes provided for a one year right of redemption, the Small Tract Financing Act eliminates the borrower's right to redeem after a properly conducted foreclosure sale.

Deficiency

Montana does not allow a deficiency judgment unless the foreclosure was done by filing a lawsuit and the sale proceeds were insufficient to pay the judgment. Small Tract Financing Act foreclosures done out of court by advertisement do not give the lender any right to collect a deficiency from the borrower.

Possession

The lender may obtain possession on the tenth day following the sale. Any person still in the house or property is to be treated as a tenant at will (a nonpaying tenant).

The Process

Foreclosures in Nebraska take place judicially, through the filing of petitions for foreclosure in the Nebraska District Court for the county where the property is located. If a prior lawsuit has been won by the lender for the amount due on a loan, it does not stop a lender from filing a subsequent lawsuit seeking a foreclosure sale of mortgaged premises. However, before the court will hear a petition for foreclosure, the lender must prove it has been unable to collect what was judged to be owed in the prior lawsuit. If a suit has been brought for satisfaction of a mortgage rather than a true petition for foreclosure, the lender can only seek the amount due and possession of the property rather than true foreclosure. Whenever a petition for foreclosure is filed either alone or in conjunction with a petition for satisfaction of a mortgage, then the court can decree a sale of the mortgaged premises or such part as is needed to pay off the loan and the costs of suit.

While the lawsuit is pending, the borrower has the right to bring in the past due payments, including principal and interest, and costs, and the lawsuit proceedings will be suspended (stayed). Nevertheless, the court will enter a decree of foreclosure and sale. This will not be enforced unless there is a further order of the court, which will not be given unless the borrower defaults in the future payment of any installment or a portion of one.

The court may order the entire property to be sold, or some part of it, based on a report by the sheriff as to what appears to be the most feasible. The order of sale may be stayed up to nine months after the judgment if the borrower files a written request for a delay (stay) with the clerk of the court within 20 days after the judgment is rendered. Otherwise, the order commanding the sale of the mortgaged property will be given 20 days after the judgment.

The sheriff or officer holding the sale must give public notice of the time and place of the sale by posting the notice on the courthouse door and at five other public locations in the county where the property is located. Two of the five locations must be in the precinct where the property is located. In addition, the sheriff must advertise the property for sale once a week for four weeks in a newspaper either printed in the county or generally circulated in the county. After making the sale, the sheriff or officer will report it back to the court, which will then confirm the sale. Once the sale is confirmed, the borrower has no right to redeem the property.

A deed shall be executed by the sheriff and it will vest in the purchaser the same title the borrower had. The sales proceeds will be applied to discharge the lender's debt, and if there is a surplus, it goes to other persons who are entitled to it, or it must stay with the court for three months before it can be paid to the borrower.

Deficiency

A deficiency is only possible as a continuation of a foreclosure suit, but not while the foreclosure action is pending or remains incomplete

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Nevada.

Judicial Foreclosure Available: Yes

Non-judicial Foreclosure Available: Yes

The lender may use a deed of trust with a power of sale clause as the mortgage. This permits the lender to foreclose by following a statutory procedure for sale without the necessity of filing a lawsuit in court.

Preliminary Notices

Non-judicial Foreclosure

The borrower has three months from the date a notice of default and election to sell is recorded to perform and cure the default under the deed of trust. If the borrower fails to do so, then the property will be sold at foreclosure. Recording a notice of default and election to sell must be recorded by the deed of trust's trustee.

Mailing

A copy of the notice of default and election to sell must be mailed certified, return receipt requested, to the borrower and any owner of the property on the date the notice is recorded. The notice must be mailed to the last address the lender has, but if the current address of the borrower is not known, the trustee may send it to the property in foreclosure. The trustee must send the notice of default and election to sell to the borrower within l0 days of recording the same to anyone who recorded a request for such a notice.

Advertising and Posting

The property must be advertised and posted in the same manner as for an execution sale.

Cure

The borrower has 35 days from the first day following the day on which the notice of default and election to sell was recorded to cure the default. The borrower may cure the default by performing under the loan agreement. Usually this would mean paying the missed payments or other sums due to the lender, but not the accelerated loan balance.

Sale Procedures
Time

The time of sale must be specified in the foreclosure notice. It should be for a time no less than that which would be specified for an execution sale.

Place

The foreclosure sale may be made at the trustee's office, even if the office is not in the same county as the property.

Manner

The property should be sold in the manner required by law for the sale of real property on execution.

Special Procedures

The court may issue an injunction to restrain waste (destruction) of the property during foreclosure.

Deficiency

If the foreclosure fails to generate sufficient proceeds to pay off what remained due on the loan, then the lender may sue for a deficiency within three months after the foreclosure sale. A hearing will be held to determine the market value of the property. Notice of such hearing must be served at least 15 days before the hearing. An appraiser may be appointed by the court, on its own motion or on request, to have the foreclosed property appraised to find the market value. At the hearing, the greater of the market value or the foreclosure sale price must be credited against what remained unpaid on the loan. The court may award a deficiency judgment for the difference. The deficiency judgment must be sought within six months after the date of foreclosure. Even if multiple properties are being foreclosed on by the lender, the deficiency must be sought within two years of the initial foreclosure on the first of the multiple properties.

Redemption

A deed of trust sale gives the foreclosure purchaser clear title free of any right of redemption for the old borrower. There is a one year redemption on judicial sales..

New Hampshire has two broad classes of mortgage foreclosures:

Foreclosures made on mortgages without power of sale clauses
Foreclosures made on mortgages with power of sales clauses.

Foreclosures made without power of sale clauses are conducted similar to strict foreclosures, in which the lender must work to obtain possession of the premises. Foreclosure made with power of sale clauses revolve around giving the proper notices and conducting proper foreclosure sales.

Although mortgages with power of sale clauses are much more common than those without, it is still possible to have a mortgage without a power of sale clause in New Hampshire. In this event, the foreclosure works much like strict foreclosure in other New England states. In order to foreclose, a lender must recover possession lawfully, and hold it for a required length of time (one year in New Hampshire), before title becomes final in the name of the lender. There are three ways to recover possession.

In entry under process, the leader files a lawsuit and obtains a court order authorizing entry.

In entry and subsequent publication, the lender peaceably enters the premises and continues occupation for a year. An affidavit from the party and witnesses as to the time, manner and purpose of the entry should be recorded. A notice stating the time at which the possession by the lender for the purpose of foreclosure was commenced should be published three weeks successively, with the first publication to be at least six months before the right to redeem would be foreclosed. The notice should give the date of the mortgage and a description of the property. A copy of the notice, and a sworn affidavit as to when, where, and how it was published should also be recorded.

In possession and publication, the lender already is in possession and simply publishes a notice stating that from a certain day forward, the lender retains possession because the mortgage conditions were broken by the borrower, and that the purpose of the lender's continued possession is foreclosure. The date of the mortgage and a description of the premises should also be stated. The day stated in the notice should be no later than four weeks after the initial advertisement. The notice should be published in a newspaper of general circulation in the county where the real estate is located. A copy of the notice and an affidavit stating when, where and how it was published should be recorded.

It is possible to foreclose a mortgage with a power of sale clause in New Hampshire by filing a lawsuit in court and obtaining a court decree commanding the sale of the property, with a confirmation of the completed sale by the court. On the other hand, it is much more common to publish and serve notice of a foreclosure sale in the proper manner, and then sell the property at the sale to the highest bidder.

A foreclosure sale without court action must be preceded by the appropriate notices. The borrower must be sent a notice at least 25 days before the sale. The notice should contain the following warning: "You are hereby notified that you have the right to petition the Superior Court for the county in which the mortgaged premises are situated, with service upon the mortgagee ( lender), and upon such bond as the court may require, to enjoin the scheduled foreclosure sale." Unless the borrower sues prior to the foreclosure sale, the borrower may not challenge the foreclosure in court at a later date. The lender should also publish a notice of the foreclosure sale once a week for three weeks in a newspaper of general circulation in the county or town where the property is located. The first publication must not be less than 20 days before the foreclosure sale.

The actual foreclosure sale must be held on site at the house or on the real property that is being foreclosed, unless the mortgage specifies a different location. A report of the sale must be made in ten days. The person who sells the property at the foreclosure sale must record the deed, a copy of the notice of sale and an affidavit describing the sales procedure to be recorded within 30 days of the sale. Title passes with the recording of the deed.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of New Jersey .
The Process

Foreclosures in New Jersey take place by filing a lawsuit. New Jersey doesn't use privately conducted mortgage foreclosure sales. A lender begins by filing a complaint of foreclosure in the Superior Court. Constructive notice can be given by recording a lis pendens with the clerk or register of the county where the land is located. A lender may file a foreclosure suit simply to collect the unpaid payments rather than the entire unpaid principal balance. If so, the lender can get a judgment for the missed payments and yet hold the mortgage and the note intact for the rest of the loan balance. The property may be sold through a foreclosure sale with the mortgage lien and note still in place so that the buyer at the foreclosure sale holds title subject to the existing mortgage lien and note. In this type of sale, however, the lender may not collect a deficiency judgment against the borrower.

Preliminary Notices

In New Jersey once the lender wins a judgment to foreclose on the real estate, whether in part, as just described, or in whole, by a writ of execution, the sheriff or another officer will conduct the sale. The foreclosure notice must be posted in the county office of the county where the property is located, and on the property in foreclosure. The notice must be advertised in two newspapers in the county, one of which must be either the county seat or the largest municipality in the county. The person seeking the foreclosure must notify the property owner and any other parties to the foreclosure lawsuit at least ten days before the sale. The newspaper ad must disclose any title defects, unless the court has ordered the foreclosure sale completed free of any liens. The buyer can back out of the purchase if the ad did not disclose the title defects, or if the sale was not ordered to be free of liens. The buyer must begin by notifying the court that a defect in title exists.

Sale Procedures

The sheriff may then proceed to sell the property in the manner directed by the court. The sheriff must deliver the deed unless an objection to the sale is made within ten days after the sale, or the objection is made before the deed was delivered, if delivery is past ten days from the sale. Unless there are valid objections, the court will confirm the sale. Thereafter the sheriff must file a report of the sale with the court within a reasonable time.

Deficiency Judgments

Deficiency judgments are permitted in New Jersey. A lawsuit for a deficiency must be commenced within three months from the date of the foreclosure sale, or confirmation of the sale if confirmation was required. Although the deficiency suit is a separate lawsuit, it can only be brought against a person who was joined to the foreclosure lawsuit and who is personally responsible for the mortgage debt. Such a person must be served with the process. On a note that is dated on or after May 1,1980, the debtor may dispute the deficiency by introducing evidence of the fair market value of the mortgaged premises at the time of the foreclosure sale. The deficiency is limited to the difference between the fair market value of the premises and the balance due on the loan. However, a borrower should object to the foreclosure sale price prior to the confirmation of the sale. The failure to do so may set the borrower up for a larger deficiency. However, some New Jersey courts are refusing to confirm the foreclosure sale unless the lender agrees, as part of the confirmation, not to sue the borrower for a deficiency greater than the difference between the fair market value and the balance owed on the loan.

Redemption

Redemption is possible during the ten days a borrower has to object after a foreclosure sale. If the borrower objected to the sale, then redemption is possible anytime until the court rules on the objections, which may be longer than ten days.

If the lender sues the borrower for deficiency, the effect is to reopen the foreclosure sale, which would otherwise have been final and proof against a right of redemption. A deficiency gives a borrower the right to bring an action to redeem the property within six months after the lender's deficiency judgment is rendered. However, persons who answered the deficiency suit, disputing its amount, and lost may not redeem.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

A lender must file a lawsuit and undertake judicial foreclosure unless the loan is covered by the Deed of Trust Act, which allows non-judicial foreclosure. However, the Deed of Trust Act applies only to business and commercial loans on real estate in excess of $500,000 and then only if the borrower agreed, in writing, to the deed of trust arrangement. Otherwise, in a typical foreclosure on a house, whether under a mortgage, trust deed or deed of trust, the lender must arrange to file a lawsuit, win a judgment ordering foreclosure and arrange a foreclosure sale in the manner required by law.

Judicial Sale

Once the lender wins a judgment, then it can go ahead and arrange to sell the property to pay off what the borrower owes, in accordance with the court judgment. A notice of sale must first be given, then a sale can take place in 30 days.

Contents

The notice of sale should specify the date, time and place of sale. It should also give a legal description of the property.

Advertising

The notice of sale must be published once a week for four consecutive weeks. The last ad must be published at least three days before the foreclosure sale.

Cure

The borrower may prevent the foreclosure by paying the amount of the judgment.

Time

The sale may not take place until 30 days after the date the court grants a judgment in favor of the lender.

Manner

The property will be sold to the highest bidder. However, if the sale fails due to lack of bidding, then the property may be offered again for sale any time before the return date on the writ of execution issued by the court to enforced its judgment.

Redemption

After the sale, the real estate may be redeemed by the former borrower or owner by paying, at any time within nine months from the date of sale, the amount of the successful foreclosure bid, with interest at 10 percent a year, plus taxed and costs. The parties may agree to a shorter term, but not less than one month. For good cause, however, the court can increase the period to not more than nine months.

Once the borrower files the suit for redemption and serves it on the lender, the lender has 30 days to respond. Sometime after the response, or by default, the court will hold a hearing to determine the amount of money necessary for redemption. At the conclusion of the hearing, the clerk of the court will issue a certificate of redemption.

Deficiency

A lender may obtain a deficiency judgment. The matter is unregulated by statute.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of New York.

Judicial Foreclosure Available: Yes
Non-Judicial Foreclosure Available: Yes

Preferred Method: Judicial Foreclosure

Judicial foreclosure (foreclosure by lawsuit) is the primary method of foreclosure in New York. Although non-judicial foreclosure is available, it is seldom used. Non-judicial foreclosure procedures are sufficiently intricate to lead to potential title disputes. Such problems might make it very difficult to evict a tenant. Junior lien holders might also dispute the title and tie the matter up in litigation. Thus most lenders will elect a judicial foreclosure.

Judicial Foreclosure

Judicial foreclosure begins when the lender files a lawsuit. The lender will sue the borrower and any person who has a claim to the ownership or a possession interest. The lender, as plaintiff, has a summons and a complaint served on the borrower. The summons commands the borrower to come to court and answer the lender's complaint; the complaint is the lawsuit proper, which describes the lender's legal and factual basis for foreclosure. A notice of lis pendens must be filed. The lis pendens is a notice that a lawsuit is pending, the outcome of which affects title. Often, the borrower fails to answer. In that event, the court will appoint a referee to compute a figure for the foreclosure. The court may then sign a judgment of foreclosure and sale. If the borrower appears and defends against the lawsuit, then the court will determine the merits of the defense. The referee will need an oral hearing. If the lender wins, then a judgment of foreclosure and sale will be awarded.

Typically the foreclosure sale is advertised for 4 to 6 weeks. The sale is made by public auction to the highest bidder. The lender may bid, as well. The lender must distribute the proceeds according to the terms of the judgment signed by the judge. Surplus money will normally be held by a referee.

Deficiency

If the mortgage contains an express covenant to pay, then the lender may seek a deficiency judgment against the borrower if the court ordered sale does not produce sufficient funds. The lender can ask the court for a deficiency judgment for the amount left unpaid after the foreclosure sale. The motion for the deficiency judgment must be made within 90 days after the foreclosure sale. The court must determine the market value and credit the greater of the market value or the foreclosure sales price against what remains unpaid on the loan.

Redemption

After the judicial foreclosure, there is no redemption period. This is true of non-judicial foreclosure, as well.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of North Carolina.
The Process

North Carolina offers two methods of foreclosure:

by filing a lawsuit seeking foreclosure
by conducting an out-of-court foreclosure sale under the terms of a power of sale clause in a deed of trust.
In the event the lender elects to foreclose by filing a lawsuit, it will try to get a default judgment. Once the lender gets a judgment, the court clerks for the Superior Court have the power of the judge to appoint commissioners to make the foreclosure sale, receive the reports on the sale and confirm the reported sale. They may order the execution and delivery of a deed to the property. The clerk may also issue a writs of assistance to evict any occupants, provided ten days' advance notice is given to such occupants.

Deed of Trust Foreclosure

In North Carolina, a deed of trust foreclosure has several unusual features. First, there must be a preliminary hearing as to whether to foreclose or not. Interested parties must receive notice of the hearing. The clerk of the court, not the judge, holds the hearing. Afterward, a notice of the foreclosure sale must be given; then the sale is conducted. A deposit must be made at the sale. After the sale, however, a very unusual procedure called an upset bid exists. An upset bid consists of making a higher bid than the foreclosure bid within a set time, which will cause the property to go through a resale, which may happen again and again! After the final sale, the sale is reported to the court clerk.

Preliminary Hearing

Under North Carolina law, a lender or trustee who has the power of sale under a deed of trust may foreclose it by following a statutorily prescribed procedure. At the outset, a hearing must be held before the court clerk (not the judge) to determine whether the foreclosure should take place or not. Notice of the hearing must be served in the manner in which a lawsuit is served, or by certified mail, return receipt requested, or, if no other process to give notice works after diligent effort, then the notice of the hearing can be posted in a conspicuous place on the property that will be foreclosed on.

Notice of the Foreclosure Hearing

Notice of the hearing must be sent to the borrower, anyone who owes money or could owe money on the loan and every person who has a recorded claim or lien on the real estate that would be affected by the foreclosure.

The notice must describe the real estate, give the name and address of the current lender, describe the nature of the default, state whether the loan has been accelerated and mention any right the borrower has to pay to cure the default.

The notice must state that the borrower has the right to appear before the clerk of the court at the date and time specified and show cause as to why the foreclosure should not be held. The notice must state that the borrower does not have to appear, and that failure to attend does not preclude the buyer from trying to cure the default or buy at the foreclosure sale.

The notice should warn the borrower that the foreclosure buyer will be entitled to possession as soon as the foreclosure buyer accepts delivery of the deed to the property. The borrower is further advised to keep the lender informed as to the borrower's latest address to aid delivery of copies of any subsequent foreclosure notices.

The right to receive a notice of hearing may be waived, but only if the debt is over $100,000 and the waiver is in writing and signed in the presence of the witness. When such written waivers are delivered to the court clerk, the clerk may skip the hearing on whether the foreclosure should take place or not.

The Hearing

The clerk will hold the hearing. During the hearing, the clerk will consider evidence as to whether the debt exists, whether a default has occurred and whether the lender has the right to foreclose. If the clerk answers those questions in the lender's favor, he or she will authorize the foreclosure. Either side may appeal the clerk's ruling to the judge within ten days. (This is likely to be fruitless.)

Notice of Sale - Contents

The notice of sale shall describe the loan instruments. It must identify the original borrowers as they are shown in the deed records within ten days prior to the posting of the foreclosure notice. If someone other than the borrower owns or claims ownership of the property in an instrument that has been recorded, then such a person must be mentioned in the notice of the foreclosure sale.

The notice must give the date, hour and place of the sale, provided such date, hour and place are consistent with the state law regulating such sales. (More details will follow on the sale itself.) The notice must describe the property and state the terms of the sale and that the property will be sold subject to taxes, special assessments and any other terms required by the deed of trust, which must be specifically described.

Notice of Sale - Posting and Publishing

The notice of the sale of the real estate must be posted at the courthouse door for 20 days prior to the sale. In addition it must be published once a week for two successive weeks. The two ads must be published at least eight days apart. The last ad cannot be published less than ten days before the sale. The notice of the sale must be mailed first class mail at least 20 days before the sale to the borrower and any other owner or record title or lien claimant at the address last known to the trustee or the lender. The notice must further be sent to anyone who has taken the time and trouble to record a request for copy of notice in the statutory form as follows:

In accordance with the provisions of G. S.. 45-21.17(5) request is hereby made that a copy of any notice of sale under the deed of trust (mortgage) recorded on ____________________19____, in Book____, page ______ records of ________________ County, North Carolina, executed by

__________________________ as trustor (mortgagor) in which _________________________

is named as beneficiary (mortgagee), and ____________________________ as trustee to be mailed to ______________________ at the following address __________________________.

Signature: __________________________

If the sale is made to someone other than the lender, or if the lender resells to a good-faith buyer and such a buyer holds the land six months, then a person who did not receive a notice of sale loses the right to challenge the foreclosure. To challenge the sale, the party must post a bond equal to what the lender is owed on the loan against the property. The bond is irrevocable, pending the final decision of the court.

Time of Sale

A sale shall begin at the time designated in the notice of sale, but never on a Sunday and always between the hours of 10 a.m. and
4 p.m. The sale may be continued or postponed. However, a postponement may only be for good cause, such as bad weather, an excessive number of competing sales, illness or another good reason. The postponement must be announced at the time and place the regular sale would have taken place. A notice of the postponement must be posted on the courthouse door, and be given orally to each party who is normally entitled to notice of a foreclosure sale. The notice has to state the hour and date to which the sale is postponed and the reason for the postponement and it must be signed.

Place of Sale

The property must be sold at the courthouse door in the county where the land is located, unless the deed of trust provides for a different location. If the deed of trust gives the trustee the authority to designate a place of sale, then the place of sale will be the place the trustee designates on the notice of sale. The deed of trust may require a cash deposit at the sale and set the amount. If the required cash deposit is not specified in the deed of trust, then the trustee holding the sale may require the highest bidder at the sale to pay a cash deposit not to exceed 10 percent of the bid up to $1,000, and 5 percent of the amount by which the bid exceeds $1,000. If the high bidder fails to make the deposit at the sale, then the trustee may immediately re-offer the property for sale to any bidders.

Report

A preliminary report of the sale must be made to the court within five days after the sale. The report must give the name of the borrower; the lender; the date, time and place of the sale; recording information about the deed; the name of the foreclosure buyer; the price at which the property was sold and the name of the person making the report.

Proceeds of the Sale

The foreclosure sale proceeds should be used to pay off the costs of the sale, the taxes on the property and any special assessments. Next, the money goes to pay the balance due on the loan, and then to creditors in order of their seniority. Anything left over goes to the borrower, or his or her estate. A special proceeding is available to contest the distribution of the sales proceeds.

Upset Bids

One of the most intriguing features of North Carolina law is the upset bid on real estate sold at foreclosure. Even after the sale, a potential buyer can come in and make an upset bid. An upset bid is an increased bid whereby a bidder offers to buy the real estate previously sold at foreclosure for an amount exceeding the reported foreclosure sale price by 10 percent of the first $1,000 and 5 percent of the amount over $1,000 of the old foreclosure bid. Such a sum of cash, or a cashier's check, must be deposited with the clerk of the Superior Court, within ten days after the clerk receives a report on the old foreclosure sale. The clerk may also require a bond in the amount of the upset bid price, minus the cash deposit. The clerk may then order a resale of the property.

Resale Under Upset Bids

When the clerk offers the property for resale due to the deposit of an upset bid, then the notice of the resale must be posted at the courthouse door for 15 days prior to the sale. A newspaper ad must be published once a week for two successive weeks before the sale. Eight days must separate the two ads. The last ad must be run no less than seven days before sale. A notice of the resale must be mailed to each party. The sale will take place in the same manner as the original sale. Once again, a high bidder will emerge, who may well be the person who put down the upset bid deposit. The entire resale may be done again and again as often as upset bids are submitted!

Final Report

A final report on the sale and the disposition of the proceeds must be given to the clerk by the person who held the foreclosure sale, within 30 days after receipt of the proceeds of the sale. The final report should show what part or parts of the property were sold. The clerk must audit the report and record it. A copy of the notice of sale or resale, and an affidavit of publication should also be recorded. At this point, the sale is final. Special procedures exist to validate foreclosure sales well after they took place when the proper procedures were not complied with, or the trustee was also the lender.

Injunctions

It is possible to enjoin a foreclosure sale in North Carolina.

Deficiency

A lender may not sue for a deficiency if the loan that went into default was for the purchase price of the real estate. However, in other cases a lender may sue for deficiency, but the borrower has the right in a deficiency suit to prove the reasonable value of the property as a defense or offset to the lender's claims. The borrower is not restricted to forcing the lender to credit only the foreclosure bid against the property; the borrower can instead assert and prove the market value of the property as an offset to a deficiency suit by the lender.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of North Dakota.
The Process

In North Dakota, a lawsuit may be brought in District Court for foreclosure or for satisfaction of a mortgage on real estate. Prior to bringing any lawsuit, the lender must give the borrower no less than 30 days advance notice of the lenders intent to foreclose. This notice must be sent no later than 90 days before the suit is filed.

The notice must contain:

a description of the real estate
the date and amount of the mortgage
the amount due for principal, interest and taxes paid by the lender, stated separately
a statement that if the amount due is not paid within 30 days from the date of mailing or service, then a lawsuit will be filed to foreclose
The notice must also state the time period for redemption, which is either one year, or, for small tracts with substantial balances and the properly worded mortgages, six months.

The notice must be served by registered or certified mail addressed to the owner of record at the post office address shown on the mortgage or recorded by the register of deeds. The notice may be served personally in the same manner as a lawsuit. A U.S. Post Office registry return receipt showing the envelope was delivered to the title owner is evidence the owner received it. If the borrower brings in the missing payments any time within 30 days after receipt of the notice, the loan must be reinstated.

North Dakota law requires the lawsuit paperwork to include several allegations that are unusual. First, North Dakota law requires the attorney bringing the suit to hold a power of attorney to act on behalf of the lender. The lawsuit itself should allege this is so. Second, the lender must also declare in the original lawsuit whether or not the lender will pursue a deficiency judgment against the borrower if the foreclosure sale does not bring in enough money to pay off the outstanding loan balance. The lender may not ask for a deficiency in the foreclosure suit if it has already brought another suit just to collect on the loan. If the borrower can bring in the missed payments plus foreclosure costs before the decree of sale is issued by the court, then the lender's lawsuit to foreclose must be dismissed.

All sales must be made by the sheriff or deputy of the county where the judgment is rendered. The sale must take place in the county where the land is located. The sale will normally be at the courthouse or another place designated by the trust deed. Whenever the real estate is sold at foreclosure, the sheriff or deputy must give the buyer a certificate of sale, and at the expiration of the redemption time period, a deed must be given to the buyer. The lender cannot obtain possession during the redemption period. However, the lender can obtain a court injunction barring the borrower from committing waste against the property during the redemption period if the borrower continues to occupy the premises. Any cash surplus from the sale, beyond that needed to pay off the mortgage and the foreclosure costs, must be paid to the borrower.

Redemption

The normal redemption period is one year. One year from the sale, if the borrower can come up with the balance due on the loan, plus costs, the property can be redeemed. Property sold at foreclosure can be redeemed not only by the borrower, but by a creditor who holds a lien against the property. A creditor who wants to redeem is called a redemptionor. Interestingly, one redemptionor can redeem from another redemptionor who took title by redemption. Each redemptionor must wait 60 days after the last redemption. The amount paid to redeem must be the amount of the original purchase price with interest as stated in the original loan documents or the one on which foreclosure took place. In either case, the amount should elude the foreclosure costs, plus taxes and insurance.

Short-Term Redemption

The short-term redemption time period is six months. In order to claim short-term redemption, the mortgage must contain the following wording:

"The parties agree that the provisions of the short-term mortgage redemption act shall govern this mortgage."

The mortgage should also contain (in capital letters) the words,

"MORTGAGE'SHORT-TERM MORTGAGE REDEMPTION"

The area covered must be ten acres or less. Short-term redemption is available if the amount claimed upon the mortgage before foreclosure is more than 66 2/3 percent of the original indebtedness secured by the mortgage.

Moratorium

The North Dakota courts have the power to postpone an entry of judgment in foreclosure proceedings if the balance owed on the loan is less than the market value of the property. These provisions are applicable to persons who would be deprived of a home.

Trustee for Commercial Property

Commercial property in North Dakota may be placed in the charge of a trustee pending the expiration of the period of redemption. The trustee can take possession of the premises; pay utilities, taxes and insurance; receive rentals from tenants and evict them if they don't pay.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Ohio.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

The Ohio standard mortgage provides for a conditional transfer of title to the lender. If the borrower pays the principal and interest, performs the obligations of the mortgage, including payment of taxes, assessments and hazard insurance and does not commit waste, then the borrower will obtain full title at the end of the mortgage term. Ohio mortgages must be foreclosed by court action.

Lawsuit

The lender must sue the borrower in the county where the property is located. The lender must ask the court to foreclose the mortgage and order a sale of the property.

Sale Procedures

Appraisement

When land is to be sold under a foreclosure order, the officer conducting the sale shall call upon three disinterested freeholders of the county to give an estimate of the value of the property. A copy of the appraised value must be left with the court clerk. The property must forthwith be offered for sale at a price of not less than two-thirds of the appraisement.

Advertising

The land will not be sold until the officer handling the foreclosure gives public notice of the sale by advertising the time and place of the sale at least 30 days in advance of the sale. The advertisements will be sufficient if they are published once a week for three consecutive weeks before the day of the sale, with each ad on the same day of the week.

Method of Sale

The sheriff handles foreclosure sales in Ohio. The officer will sell to the highest bidder at the time and place indicated in the advertised notice. The sale must take place at the courthouse. If the bidder fails to pay the price, the court "shall punish as for contempt any purchaser of real property who fails to pay the purchase money therefore." If there is no sale for lack of bidders, then the court may order a new appraisement and order the sale for one-third in cash and the balance later.

Confirmation

The sheriff returns the writ of execution indicating that a sale was made to the court, which upon examination of the sale proceedings to make sure they were in conformity with the law and with the court orders, enters into its records a confirmation of the legality of the sale and directs the officer who made the sale to create and deliver the purchaser a deed for the property.

Special Procedures

If the property is in danger of being damaged the court may appoint a receiver to take charge of it.

Deficiency

A deficiency judgment may be obtained by the lender along with the order commanding a foreclosure sale. The deficiency is void two years after the foreclosure sale is confirmed. However, the enforcement may continue if the debtor signs an agreement to postpone the enforcement past two years.

Redemption

The debtor can redeem by paying the amount of the judgment plus costs and interest up until the confirmation of the sale, but not afterward.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Oklahoma.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

In Oklahoma both judicial and non-judicial foreclosures are available. The judicial sales are governed by the age-old principles of common-law equity, and some statutes. The non-judicial sales are governed by the Oklahoma Power of Sale Mortgage Foreclosure Act, which was passed in 1986. However, the lender who chooses the non-judicial route will effectively give up the right to sue for a deficiency if the foreclosure involves homestead property. Moreover, a borrower may force the lender into judicial foreclosure if the property involved is a homestead by recording and then mailing a written notice to the lender 10 days before the foreclosure sale claiming the property as homestead. At that point, only judicial foreclosure may be used. This right is not available on other types of property.

Judicial Foreclosure

Mortgages on real estate can be foreclosed by filing a lawsuit under principles of equity in the District Court of the county where the land is located. If there has been a default by the borrower in meeting the requirements of the loan, such as not paying the payments, then the court will order a foreclosure sale. The price may be determined through a special appraisal procedure. Unless the borrower waives the right to an appraisal in the mortgage, the property must be appraised before it can be sold at foreclosure. At the foreclosure sale, the property may not be sold for less than two-thirds of the appraised value.

Judicial Execution Sale

Advertising

The impending foreclosure sale must be advertised at least 30 days in advance of the sale.

Non-judicial Foreclosure

Mortgages that can be foreclosed out of court must include the following statement, in bold and underlined type:

A power of sale has been granted in this mortgage.

A power of sale may allow the mortgagee (lender) to take the mortgaged property and sell it without going to court in a foreclosure action upon default by the mortgagor
under this mortgage.

A written notice of intention to foreclose by power of sale must be sent by certified mail to the borrower at the borrower's last known address. The notice shall describe the defaults of the borrower under the loan, and give the borrower 35 days from the date the notice is sent to cure the problem. If the borrower comes up with the missed payments during the 35 days, then the foreclosure can be stopped. It cannot be accelerated. However, if there have been three defaults, then the lender need not send another notice of intent to foreclose, and if the borrower has been in default four times in the past 24 months, and has been notified as above, then no further notice will be required to accelerate.

Preliminary Notices

Contents

The notice must describe in detail the nature of the borrower's default on the loan.

Time

The lender's notice informs the borrower that if the house is the borrower's homestead, then the borrower has ten days to elect judicial foreclosure or else face out-of-court foreclosure under a power of sale clause.

Advertising

The notice must be published once a day for four consecutive weeks, but the first date must be not less than 30 days before sale.

Recording

The notice, plus an affidavit confirming the validity of the trustee's procedures, must be recorded within ten days after the borrower has gone through the 35-day notice period.

Service

The borrower must be served with the papers advising the buyer of the default. They should be served in the same manner as for court. These papers should not only be served, but the wise lender will preserve proof of receipt, return of service or an affidavit in lieu of personal service, along with proof of publication. All of these affidavits and a copy of the notice must be recorded.

Sale Procedures

Time and Place

The time and place of the sale must be specified in the notice of foreclosure.

Manner

The property will be sold at public auction to the highest bidder. If a purchaser at a foreclosure sale other than the borrower fails to post cash or certified funds equal to 10 percent of the bid amount, then the lender may proceed with the sale and accept the next highest bid.

Redemption

Once the court confirms a foreclosure sale there can be no redemption. There is no right of redemption on power of sale foreclosures either, although the borrower has the right to redeem until the foreclosure sale.

Deficiency

A lender may sue judicially to obtain a deficiency judgment. Also, under the Oklahoma Power of Sale Mortgage Foreclosure Act, any action for a deficiency must be commenced within 90 days after the date of sale. In such event the lender shall establish that the fair market value of the property on the date of the foreclosure sale exceeded the foreclosure sale price. If it did, then the higher figure must be credited against the balance due on the loan. If the house is the borrower's homestead, and the borrower elects judicial foreclosure, the borrower may be hit with a deficiency suit. On the other hand, if the borrower does nothing, then the lender cannot sue for a deficiency.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Oregon .

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Foreclosure in Oregon may be either by court action or by advertisement and sale, if there is a default.

Non-judicial Foreclosure Preliminary Notices
Recording

The trustee must record a notice of default.

Contents of Notice of Sale

The notice of sale should include a property description, recording information on the trust deed, a description of the default, the sum owing on the loan, the lender's election to sell and the date, time and place of sale.

Mailing

After recording the Notice of Default and at least 120 days before the foreclosure sale, notice of the sale must be either served or mailed by both first class and certified mail to the borrower, the Department of Revenue, any owner of record and any person requesting notice.

Service

A copy of the notice of sale must be served on the occupant of the property 120 days before the foreclosure sale day.

Advertising

A copy of the notice must be published once a week for four successive weeks. The last publication must be made at least 20 days prior to the foreclosure sale day. The trustee must prepare and record an affidavit slating that the proper notices and advertising have been given.

Cure

The borrower, or any junior lien holder or claimant may cure the default prior to foreclosure by paying all past due sums plus costs, which would be the missed payments and costs. On a residential trust deed foreclosure, the borrower may be charged the lesser of the actual charges or a total of $550 for trustee's and attorney's fees. Reasonable charges may be made for other foreclosures.

Sale Procedures
Date

The date shall be the date given in the notice.

Time and Place

The sale must be conducted between 9 a.m. and 4 p.m. at a place designated in the notice.

Manner

The sale must be at auction to the highest bidder for cash. Any person, including the lender but excluding the trustee, may bid at the foreclosure sale. The purchaser must pay the bid price at the time of the sale. The trustee must give the buyer a deed within ten days. The buyer is also entitled to possession within ten days. The sale may be postponed, up to 180 days, provided 20 days' advance notice is given by mail to the same persons as the original notice. A new time and place must be specified.

Special Procedures

If the foreclosure is stayed by bankruptcy, the trustee may give an amended notice of sale and sell the property with only 20 days' notice as soon as the bankruptcy stay is lifted.

Deficiency

A deficiency judgment cannot be obtained through a non-judicial deed of trust foreclosure by advertisement. On commercial property secured by a trust deed, a deficiency judgment can be obtained by filing suit, but not on property covered by a purchase money mortgage. A purchase money mortgage is any mortgage where the unpaid balance is $50,000 on a primary or secondary single family residence. There are no other particular limits on deficiency judgments.

Redemption

A person who was entitled to receive notice of the foreclosure but did not receive it may sue to invalidate the foreclosure and redeem the property for a period of five years following the sale. On a judicial foreclosure, the borrower or a successor in interest may redeem property within 180 days after sale by paying the purchase price plus 9 percent plus the foreclosure purchaser's expenses in operating and maintaining the property. A notice of no less than 2 nor more than 30 days must be given to the sheriff to redeem. There are restrictions on redemption rights if the borrower has transferred the property.

The Process

Pennsylvania's judicial foreclosure is not easy for lenders. All actions to foreclose, accelerate or take possession are stayed until the borrower is sent an "Act 91" notice giving the borrower 30 days to meet the lender or a consumer credit agency listed on the notice.

Starting from the day of the first meeting, the borrower has another 30 days delay to try and resolve the problem by restructuring loan payments. Otherwise, the borrower can apply for a Homeowner's Emergency Mortgage Assistance Program Loan and gain an extra 60-day delay on foreclosure to process the application. If the borrower has had good residential credit for the past 5 years, is 60 days delinquent and has a reasonable prospect of resuming loan payments in full within 36 months, then the borrower should be approved. If the loan is disapproved, or no meetings took place after the first 30 days, the lender may foreclose.

Reimbursement

Under "Act 6," which applies to home loans under $50,000, the borrower must be sent a 30-day notice of the foreclosure, during which time attorney's fees are limited to $50. Also, the borrower may pay the past due payments and stop the foreclosure up to one hour before the bidding at the sheriff's sale and may do this up to three times in a calendar year.

The Foreclosure Lawsuit

The foreclosure complaint (lawsuit) must be filed and served on the borrower. It must describe the property to be foreclosed on. It must state the names of the borrower and the lender, the itemized amounts due, the fact that the mortgage is in default and a demand for judgment. Although the lender may state more than one reason to foreclose, the lender may not sue to collect the money owed on the loan in addition to the suit to force the sale of the property by foreclosure. The defendant may file a counterclaim against the lender. The lawsuit however, must be tried before a judge, without a jury. If the court orders foreclosure, then at least 30 days before foreclosure the sheriff must give notice by putting a handbill on the property, serving a copy on the borrower and advertising the property for sale for three consecutive weeks. The sale takes place a month or two after the court's order.

Redemption

There is no right of redemption after the sale.

Deficiency

Pennsylvania passed the Pennsylvania Deficiency Judgment Act. The lender may file a lawsuit to collect on the promissory note signed by the borrower within six months of foreclosure. This lawsuit must be separate from the foreclosure lawsuit. The borrower has the right to force the lender to credit the fair market value of the property sold at the foreclosure sale against what is owed on the note. The suit must be filed within six months after the foreclosure.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Rhode Island .
The Process

Rhode Island mortgages may contain a statutory power of sale clause, which may be incorporated by reference into the mortgage document. If the mortgage does not contain a power of sale clause, then the lender has four options:

File a lawsuit seeking a court-ordered sale
File a lawsuit seeking ejectment (eviction)
Peaceably enter the house in the presence of two witnesses, who must give a certificate of possession which they must acknowledge (notarize) before a notary or a Justice of the Peace
Have the borrower voluntarily agree to give up possession before a notary public or a Justice of the Peace.
If the lender maintains possession, then, after a time, the lender gets full title. The borrower has three years to file a lawsuit to redeem the property by paying up the full sum, both principal and interest, that is due on the mortgage (but not interest for future years). Rhode Island does not bar deficiency lawsuits.

Power of Sale Foreclosure

Lenders in Rhode Island generally prefer to foreclose under a power of sale clause. The lender first accelerates the loan, then conducts a foreclosure sale after giving proper notice. The lender must send a notice of the foreclosure by certified mail, return receipt requested, to the buyer 20 days before publishing the first newspaper ad. Notice of the time and place of the sale must be published once a week for three weeks in the proper newspaper. The notice must be published not only on the day before sale, but on the same weekday for each of the three weeks preceding the sale. Furthermore, the power of sale statute literally spells out which city's newspaper must be used! The statute further specifies that the sale must take place at a public auction conducted on the premises, or at a location specified in the deed. The lender may bid at the sale in the same manner as other bidders.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

South Carolina uses judicial foreclosure. The lender must file a lawsuit and seek either an order of sale or a judgment for the loan balance against the borrower or both.

Sale Procedures

Time

The hours of sale shall be between 11:00 and 5:00. However, no sale may be made after the sheriff declares the sales closed for the day.

Place

The sale takes place at the courthouse of the county where the real estate is located.

Manner

South Carolina foreclosure sales are conducted by the sheriff at public auction to the highest bidder for cash. The sheriff will prepare and deliver a deed to the high bidder.

Special Procedures - Upset Bids

Bidding remains open until 30 days after the sale. During that time, an upset bidder may make a suitable deposit, which is refundable, and outbid whoever made the highest bid at the actual foreclosure sale. A 5 percent higher bid is an upset bid although a lower figure may be acceptable to the court. However, if no deficiency judgment is sought, then the upset bid procedure will not be followed.

Deficiency

The lender can sue for and the court may adjudge and direct that if any part of the mortgage debt remains unpaid after the sale of the mortgaged premises, then the lender may seek a court order directing the borrower to pay the unpaid sum or residue. The judgment may be enforced as in other cases. However, within 30 days after the sale, if a defendant was sued for a deficiency, he or she may apply to the court for an order of appraisal. The defendant appoints one appraiser, the judgment creditor appoints another and the judge appoints another. If the appraised value is greater than what remains owed on the loan, after subtracting the foreclosure sale proceeds, then there is no deficiency. However if it is less, then the borrower still gets credit against the judgment for the appraised value of the property. The lender can collect only what's left.

Redemption

South Carolina does not recognize a right of redemption after foreclosure.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

If the mortgage contains a power of sale clause, then it may be foreclosed by advertisement, provided that there is a default on the mortgage. Alternatively, the lender may sue for a judgment against the borrower for the amount of the debt due and an order of sale.

Non-judicial Foreclosure Preliminary Notices
Contents

The foreclosure notice must give the names of the borrower and lender, the mortgage date, the amount due, a description of the premises and the time and place of sale.

Advertising

A foreclosure notice must be published once a week for four successive weeks in a newspaper in the county where the premises are located.

Sale Procedures

Time

The time must be between 9 A.M. and 5 P.M.

Manner

The sale is made by the sheriff at public auction to the highest bidder. The lender may bid, too. The winner gets a certificate of sale. Once the redemption period runs out, the buyer gets a deed. Any surplus remains on deposit with the clerk of the court for three months for possible claimants.

Postponement

The sale may be postponed.

Judicial Foreclosure

A lender may foreclose by filing a lawsuit in the circuit court of the county where the property is located. Service of process may be obtained by publication, if necessary. The lender may seek either or both of an order of sale and a judgment for the balance due on the mortgage. Once the court finds foreclosure to be appropriate, then the sale may be made by a referee or sheriff, or anyone else appointed by the court. If the lender plans to bid, but the borrower submits competent evidence as to value, then the court may order the premises to be sold at their fair and reasonable value less the balance due on the loan. The borrower will receive a certificate of sale at the foreclosure. A deed will subsequently be issued once the redemption time period expires.

Deficiency

If the mortgage is a purchase money mortgage (a loan or loans used to buy the person's property) then a deficiency judgment is not permitted in South Dakota.

Redemption

If the tract of land is 40 acres or less, and the mortgage contains a special power of sale clause, then a 180-day period of redemption exists. If the property is abandoned, the time period becomes only 60 days. Generally unless the special short-term redemption mortgage provisions apply, all persons may redeem within one year of the date of sale.

Judicial Foreclosure Available: Yes, but rarely used
Non-judicial Foreclosure Available: Yes

In Tennessee, foreclosures are usually done under a deed of trust accompanied by a note. Regular mortgages requiring judicial foreclosures are seldom used.

Non-judicial Foreclosure

Non-judicial foreclosure is usually done under a deed of trust which has a power of sale provision. If the deed of trust lacks such a provision, then the borrower must file a lawsuit (bill in chancery) and undertake judicial foreclosure.

Preliminary Notices

Contents

The foreclosure notice should give the names of the borrower and lender, describe the property, give any street address and state the time and place of sale.

Advertising

The notice of foreclosure sale must be first published at least 20 days before the sale. The ad must be published three different times in a newspaper in the county where the land is located.

Sale Procedures

Time

The time of sale shall be between the hours of 10 AM. and 4 P.M. on the day specified in the foreclosure notice.

Place

The sale is made at the place specified in the foreclosure notice, which is normally the courthouse door.

Manner

The sale is for cash to the highest bidder.

Deficiency

A lender may seek a deficiency judgment against persons who assume debt.

Redemption

The redemption time period is two years. The right of redemption can be waived in the original deed of trust.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes, non-judicial. foreclosure using the power of sale clause in a deed of trust

Preliminary Notices

Twenty-Day Demand Letter

The lender must mail a residential borrower a demand letter giving the borrower 20 days to come up with all the missed payments before proceeding with a foreclosure or sending the 21-day notice.

Twenty-One-Day Foreclosure Notice

The trustee must send a foreclosure notice stating the date, place and earliest

Method of Giving Notice

Advertising: Texas does not require preliminary advertising of the foreclosure in a newspaper.

Posting

Texas requires a foreclosure notice to be posted at the county courthouse door 21 days before foreclosure.

Recording/Filing

Texas requires a foreclosure notice to be filed with the county clerk 21 days before foreclosure.

Mailing

A foreclosure notice must be mailed to the borrower at the last known address as shown in the records of the lender 21 days before foreclosure.

Sale Procedures

The foreclosure sale must take place on the first Tuesday of any month, even if it is a holiday such as the Fourth of July or New Year's, but only after the proper preliminary notices have been given. The sale is on the courthouse steps by auction to the highest bidder for cash. Lenders, however, can bid by canceling out the balance due on the note, or some part of it. There is no organization to the sales. The trustee named in the deed of trust simply shows up and calls out the property for sale. The trustee or a lender representative then bids for the lender. Investors must find the trustee in a noisy crowd to bid against the lender. The title is transferred by means of a trustee's deed.

Redemption

There is not right of redemption in Texas.

Deficiency

Texas now limits deficiency judgments to the difference between fair market value and the balance owed on the loan, although the borrower may have to give evidence about the market value to be sure the deficiency is kept to a minimum.

Unusual Features

Texas is a very simple state in which to foreclose.

When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Utah.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

Utah recognizes judicial foreclosure. There may be but one action for recovery of the debt or any foreclosure sale.

Procedure

The lender must file a lawsuit seeking foreclosure. If the court finds there has been a default, it may order the foreclosure sale to proceed. The court will also adjudge the amount due on the defaulted loan. The sheriff will conduct the sale under court order in the same manner as normal execution sales. The sheriff will publish notices and conduct a public sale. Any surplus from the sale will go to the person who is owed the money, by court order, or stay on deposit with the court until it decides how to distribute it.

Special Procedures

The borrower may be restrained by a court injunction from injuring the real property during the foreclosure of the mortgage or during a foreclosure execution sale.

Deficiency

Utah allows deficiency judgments. If the foreclosure sale proceeds are insufficient to pay off the loan balance to the lender, then execution may be issued by the court after the sale to seize property until the debt is repaid.

Redemption

Utah recognizes a right of redemption after the sale in the same way as for regular judgments. However, a Utah court sitting in equity may extend the time for redemption so there is no set length of time.

The Process

Vermont allows foreclosure either by filing a lawsuit to obtain strict foreclosure, in which the title given to the lender by deed will be ruled to be final, or by filing a lawsuit to foreclosure under a power of sale clause in a deed of trust. Both procedures are governed by the Vermont Rules of Civil Procedure. There is a statute for deed of trust foreclosure (VT. Stat. Ann tit 12 �4531a). Under Vermont's strict foreclosure procedures, the lender gets a deed to the property at the outset of the loan, but the deed also provides that the borrower can get the title back by repaying the loan. All the lender has to do is get a court declaration that the borrower has failed to meet the condition, and the title becomes final in the name of the lender after a statutory redemption period passes, during which the borrower can recover the property by paying off the rest of the loan.

In strict foreclosure a complaint (lawsuit) must be filed in county court. The complaint and a summons to the borrowers to appear and answer the complaint must be served on the borrower. The complaint must state the borrower's and lender's names, the date of the mortgage deed, a description of the debt owed and a claim for attorney's fees, if any are sought. It must state that the reason the lender is foreclosing, is a breach in the deed's conditions. Although the lawsuit prays for the court to foreclose the borrower's right to redeem the property, the borrower nevertheless has a right to redeem under Vermont's statutes. Under Vermont statutes the time for redemption is one year for pre-1968 mortgage and six months for post-1968 mortgages, from the date of the judgment. However, the lender can request a shorter time for good cause. Once the complaint is served, the lender may move for summary judgment in order to avoid trial.

Non-judicial Foreclosure

Due to Vermont's long tradition of strict foreclosure, a foreclosure sale under a power of sale clause has only recently become common in residential loans, although they have been common in commercial transactions. Vermont does not have a well-established tradition of foreclosure auctions. In Vermont, a lender must still bring a lawsuit to foreclose a deed of trust and obtain an order for a sale. However, the foreclosure may not take place until seven months have passed from the date the lawsuit was served on the borrower, unless the borrower and lender agree otherwise, or the borrower is damaging the property.

Deficiency

In Vermont a lender may sue the borrower to collect deficiency if the foreclosure sale under the deed of trust was not sufficient to repay the loan plus the foreclosure expenses. However, if the lender buys at the foreclosure sale, the borrower can force the lender to credit the fair market value of the property against the total amount owed, which includes the loan balance and the foreclosure expenses. If the foreclosure sale generates a surplus, junior lien holders and creditors may claim it up to the amount owed in the order of their priority.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Either a judicial foreclosure in the form of a bill of equity, or a sale by advertisement pursuant to a power of sale clause in a deed of trust is permitted in Virginia.

Judicial Foreclosure

In Virginia, a mortgage may be foreclosed by filing a type of lawsuit known as a bill in equity When and if necessary, a deed of trust could also be foreclosed through court action. In either case, a court order can be issued which specifies the terms and conditions of the sale, which are controlled by the mortgage contract Commissioners are appointed to handle such sales. The court must confirm the sale.

Non-judicial Foreclosure

The trustee under the deed of trust may accelerate the note, give the necessary preliminary notices, and arrange the foreclosure sale.

Preliminary Notices

Contents

The foreclosure sale ad must include anything required by the deed of trust and may include a legal description of the property, a street address and a tax map identification or general information about the property's location. The notice must include the time, place and terms of sale. It must give the name of the trustee and the address and phone number of a person who will be able to respond to inquiries about the foreclosure sale.

Advertising

Even if the deed of trust provides for advertising, ads should be published no less than once a day for three days, which may be consecutive days. If the deed of trust does not provide for advertising, then the ad shall be run once a week for four successive weeks. However, near a city, an ad on five different days, which may be consecutive, will be sufficient.

Mailing

A copy of the advertisement or a notice with the same information must be mailed to the borrower at least 14 days before the foreclosure sale.

Sale Procedures
Time of Sale

The sale must be made no earlier than eight days after the first ad and no more than 30 days after the last advertisement.

Special Procedures

Written one-price bids may be made and received by the trustee for entry by announcement at the foreclosure sale. Any bidder who attends the foreclosure may inspect the written bids.

Manner

The sale is to be made at auction to the highest bidder. Unless otherwise required by the deed of trust, the trustee may require a bidder to make a 10 percent cash deposit. The trustee must apply the proceeds of the sale first to expenses of the sale, including a 5 percent trustee's commission, second to unpaid taxes, assessments and levies, third to liens in order of their priority and the balance, if any, to the borrower. The trustee will execute and deliver a deed to the buyer.

Deficiency

A lender may pursue a borrower for a deficiency judgment in Virginia. No limits are imposed.

Redemption

In a court-ordered foreclosure sale the court may give the borrower a redemption period. Otherwise, Virginia does not give borrowers redemption rights.

Foreclosure Process

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Non-judicial Foreclosure

Non-judicial foreclosure proceedings are permitted in Washington, provided there is a power of sale clause in the trust deed, and the real property is not used for agricultural purposes. There can be no pending lawsuit for foreclosure at the same time as a non-judicial procedure is attempted. Default must be defined in the trust deed.

Preliminary Notices

Advertising

The trustee must publish the notice of sale as follows: once between the 32nd and 28th days before the sale, and once between the 11th and 7th days before the sale.

Mailing

A written notice of the foreclosure sale must be mailed by certified mail, return receipt requested, to the borrower at his or her last known address at least 30 days by recording the notice of sale 120 days before foreclosure may be personally served instead.

Recording

At least 90 days before sale, the trustee must record a notice of the foreclosure sale and mail it to anyone with a lien or claim against the property.

Posting

At least 90 days before sale, the trustee must post the foreclosure notice on the premises to be foreclosed.

Cure

The borrower has up to 11 days before the sale to cure the default by paying the past due payments, plus expenses including trustee and attorney fees. Curing the default stops the foreclosure.

Sale Procedures
Time

The time of sale is specified in the notice of sale. It must be not less than 190 days from the date of default.

Postponement

The trustee may postpone the sale.

Manner

The sale is to the highest bidder.

Deficiency

If non-judicial foreclosure is selected by the lender, then it cannot sue for a deficiency judgment. On judicial foreclosure sales, the borrower can be sued for a deficiency, unless the property is found to be abandoned for six months before the decree of foreclosure.

Under the District of Columbia Code, Washington, D.C. uses non-judicial foreclosure under a power of sale clause granted in a deed of trust.

Sales Procedures

Normally, a Washington, D.C. deed of trust will state the time periods for notice of the foreclosure sale. If it does not, then the dates may be set by any interested party by going to court and getting a court order to set them.

Preliminary Notices

A notice of sale must be given to the owner of the property at his or her last known address, and furnished to the mayor, or the mayor's agent, at least 30 days before the foreclosure sale. Otherwise, the foreclosure is not valid.

Reinstatement

One time in a given year the debtor may reinstate the loan up to 5 days before the foreclosure sale by paying all sums that are past due on the loan, including late charges and penalties, regardless of whether the loan was accelerated or not.

Sale

The sale will be made by a trustee by public bid.

Redemption

There is no right of redemption after a deed of trust foreclosure sale.

Deficiency

A lawsuit for a deficiency may be brought against the borrower for any amount due on the loan that was left unpaid after the foreclosure sale.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

Although judicial foreclosure is available for vendor's lien foreclosures. West Virginia uses the deed of trust almost exclusively. Mortgages have largely disappeared. If there is a default under the deed of trust, then the trustee must send out preliminary notices and then sell the property when the lender so requests.

Preliminary Notices

Contents

A notice of sale must contain the time and place of the foreclosure sale, the names of the parties to the deed, the date of the deed, recording information, a property description and the terms of the sale.

Advertising

In pre-1980 deeds of trust the buyer may have waived the right to published notice. Later deeds of trust must publish a Class III legal advertisement countywide before the sale at least once a week for four weeks.

Posting

The notice of sale must be posted at least 20 days prior to sale on the front door of the courthouse for the county in which the property to be sold is located, and in three other public places, one of which must be the property to be foreclosed on.

Service

Unless expressly waived in the deed of trust, the borrower must be served with a copy of the notice of foreclosure at least 20 days before the foreclosure sale.

Mailing

Notice of the foreclosure sale should be mailed to the borrower and subordinate lien holders 20 days prior to sale.

Sale Procedures

Time and Place

The time and place of sale are specified in the foreclosure notice.

Manner

The sale is completed by public auction to the highest bidder.

Terms

The deed may specify the terms of sale. Otherwise, a buyer may pay one-third in cash at the sale, one-third a year later, and one-third two years from the day of sale.

Report

A report of the sale must be filed with the clerk of the county and recorded.

Deficiency

A lender can maintain a deficiency action only by filing a separate lawsuit. However, if the lawsuit is filed to collect, the deed of trust foreclosure must then be delayed during the lawsuit.

Redemption

There is no right to redeem after a deed of trust sale.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes

If the mortgage contains a power of sale clause, it may be foreclosed by advertisement in Wisconsin without going through a lawsuit. On the other hand, if there is no power of sale clause, the mortgage must be foreclosed judicially by filing a lawsuit and obtaining a court-ordered sale.

Judicial Foreclosure

The lender may file a lawsuit seeking a court order for foreclosure and/or a deficiency judgment for any money the sale doesn't produce. The court will set the date, time, place and manner of sale. Usually it is conducted by the sheriff. No sale may be made for one year from the date the judgment is entered unless the lender waives the right to a deficiency, in which case the delay is six months, or two months if the property is abandoned. Sales by consent may be earlier.

Foreclosure by Advertisement Preliminary Notices
Contents

The foreclosure notice must specify the names of the borrower and lender, the date the mortgage was recorded, the amount due at the date of the notice, a property description and the time and place of sale.

Recording
The foreclosure notice must be recorded when the foreclosure notice is first published.

Advertising

A foreclosure notice with the time and place of sale must be published once a week for six consecutive weeks in a newspaper published in the county where the real estate is located.

Service

Mailing is not adequate. The foreclosure notice must be served upon the borrower in the same manner that civil process in a lawsuit is served. If the borrower cannot be found, then the notice shall be posted in a conspicuous spot on the mortgaged premises and served on any occupant.

Sale Procedures
Time

The sale takes place between 9 A.M. and sunset.

Place

The sale occurs at the place given in the foreclosure notice.

Manner

The sale shall be at public auction to the highest bidder. The person who normally calls out the sale must be the person appointed for the task in the mortgage, or the sheriff. The sale may be postponed, if necessary. The person making the sale must give the purchaser a certificate, in writing, entitling the buyer to a deed. The certificate must be filed where deeds are recorded. If the property is not redeemed, the person making the sale must execute a deed to the buyer.

Sale Confirmation

Wisconsin law provides a procedure by which a foreclosure sale may be confirmed by court order after it is made.

Redemption

If a sale is confirmed, then there is no right of redemption. Otherwise, there is a one-year right of redemption if the high bid at the foreclosure sale, plus interest, is paid. During such a period, the borrower may also retain possession.

Deficiency

A deficiency judgment is not allowed unless the application for sales confirmation states the lender's intent to seek one. Otherwise, it is a separate portion of any existing legal action, or a separate action altogether. It will not be final until on or after the sale confirmation.

Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No

Foreclosure by Advertisement

Wyoming permits the use of a deed of trust which allows foreclosure by advertisement. The deed of trust names a trustee who will conduct the foreclosure.

Preliminary Notices
Advertising

Notice of the foreclosure must be published once a week for four consecutive weeks in the newspaper for the county in which the property is located.

Mailing

Notice must be mailed or delivered to the borrower and the occupant at least ten days before the first publication of ads in the newspapers.

Sale Procedures
Time

The foreclosure sale must take place at public auction between the hours of 9 A.M. and 5 P.M.

Judicial Foreclosure

In judicial foreclosure, the lender forecloses by filing a lawsuit and obtaining a court-ordered sale. There are no prescribed advertising procedures on court-ordered sales, but they are usually advertised. The sheriff usually conducts the sale. The sale takes place between the hours of 10 A.M. and 5 P.M. The sheriff will then issue a certificate of purchase to the high bidder at public auction.

Deficiency

A lender may sue for a deficiency if there is a note associated with the mortgage or deed of trust, or it contains a separate covenant to pay.

Redemption

Redemption is permitted.

Articles & Links

Contact

Better Homes USA

Contact

Phone (800) 206-4360

Fax (732) 264-6127

Toll Free (800) 691-0111

Phone (732) 264-2700

Office

Better Homes USA

3400 Hwy 35 Suite #5
Hazlet, NJ 07730

Quick Search

MLS Number

-or-

Street Name (optional)

City

State

-or-

ZIP Code

Property Type

Bedrooms

Bathrooms

Minimum Price

Maximum Price

* Quick Search Tips - Select MLS Number OR Street/City/State OR Zip Code - then make your other selections.

Better Homes USA Better Homes USA

Phone (800) 206-4360

Fax (732) 264-6127

Toll Free (800) 691-0111

Phone (732) 264-2700

Contact

Website Design and hosting by AgentAdvantage, official agent and broker website provider of Homes.com