US Judicial and Non-judicial Foreclosure

Jessica · Last edited by Jessica on Mon Jan 29, 2007 9:05 pm

The process of foreclosure in United States differs from state to state. In general, there are two types of proceedings – Judicial and Non-judicial foreclosures.

Judicial Foreclosure:
The process is carried out in case of mortgage transactions. In this process, the lender files a lawsuit against the borrower in order to get the property. The court then issues a summon and complaint against the borrower and other parties having subordinate rights on the property.

The borrower needs to file an answer to the lawsuit. Otherwise, the lender gets a judgment by default. The court then appoints a referee to calculate the total amount owed by the borrower. This includes the interest as well as the attorney fees. The lender puts up a notice of sale in newspapers and if this does not work out, the sale is conducted right in front of the courthouse by the referee. This is known as the Sheriff's sale.

The property is sold off to the highest bidder at the auction and the sale proceeds cover the costs of the sale and the unpaid debt. However, if the sale proceeds are not enough to cover the mortgage, then the lender may seek a deficiency judgment for the remaining debt. But in some states like California, this kind of judgment is prohibited.

Non-judicial Foreclosure:
The process is enforced in states where a deed of trust is used instead of mortgage. No court action is involved here. The lender makes use of the power of sale and files a notice of default along with the notice of the sale. The process takes around 90 days for completion.

There are several states which allow for both kinds of foreclosure. But generally, each state has only a particular type of foreclosure that is widely used.

States	Foreclosure Implemeted	Foreclosure Process Period (Days)	Foreclosure Redemption Period	Comments
Alabama	Judicial and Non-judicial	49 -74	1 Year	Notices on non-judicial foreclosure are issued once a week for three weeks on a county-by-county basis.
Alaska	Judicial and Non-judicial	105	1 year	Redemption period applies to cases of judicial foreclosure only.
Arizona	Judicial and Non-judicial	102	None	Foreclosure depends upon the document securing the loan. The foreclosure process takes 91 days in case of deed of trust.
Arkansas	Judicial and Non-judicial	70	1 year	Redemption period can be applied on judicial foreclosure only.
California	Judicial and Non-judicial	117	1 year	Only judicial foreclosure involves the redemption period.
Colorado	Judicial and Non-judicial	91	75 days	Judicial foreclosure is not usually applied.
Connecticut	Judicial	62	Court decides	Only judicial foreclosures are possible, either by a suit in equity for strict foreclosure or by a court decree of sale.
Delaware	Judicial	170 - 210	None	-
District of Columbia	Non-Judicial	47	None	A 30-day notice of sale is sent by certified mail before the foreclosure starts.
Florida	Judicial	135	None	Judicial foreclosure involves services by the sheriff, a judgment of foreclosure and sale, advertising, public sale, and then the issue of a certificate of sale and certificate of title.
Georgia	Judicial and Non-judicial	37	None	Advertising related to foreclosure must appear for 4 continuous weeks before the first Tuesday of the month,that is when the foreclosure sale takes place.
Hawaii	Judicial and Non-judicial	220	None	Judicial foreclosure is used rather than powers of sale for both mortgages and agreements of sale.
Idaho	Judicial and Non-judicial	150	1 Year	-
Illinois	Judicial	300	90 days	-
Indiana	Judicial	261	None	Execution of judgments in judicial foreclosure varies from 3 months after filing of the complaint in cases involving mortgages drawn up since July 1, 1975, to 6 months for those taken between January 1, 1958, and July 1, 1975, to 12 months for those drawn up before that. The highest bidder receives a Sheriff's deed after the sale is executed.
Iowa	Judicial and Non-judicial	160	20 days	Lenders prefer mortgages because deeds of trust do not circumvent judicial foreclosure.
Kansas	Judicial	130	1 Year	-
Kentucky	Judicial	147	1 Year	Any security instrument requires a decree in equity for its enforcement.
Louisiana	Judicial	180	None	The Sheriff provides successful foreclosure sale bidders with an adjudication.
Maine	Judicial	240	90 days	Foreclosures may be initiated by any of the following: An act of law for possession; entering into possession and holding the premises by written consent of the mortgagor; entering unopposed and taking possession in the presence of two witnesses; giving public notice in a newspaper for three consecutive weeks and recording its copies in the Registry of Deeds, and then recording the mortgage within 30 days of the final publication; or by a bill in equity (special cases). In each case, the creditor must record the foreclosure notice within 30 days.
Maryland	Judicial	46	Court decides	Security instruments can include a private power of sale.
Massachusetts	Judicial	75	112 days	Creditors forced to foreclose can take advantage of the private power of sale, but they may foreclose through peaceable entry, that is by entering unopposed in the presence of two witnesses and taking possession for 3 years. Or else, the foreclosure may take place through the judicial writ of entry (which is rare). Cautious creditors will foreclose through both power of sale and peaceable entry.
Michigun	Non-Judicial	60	1 Year	Private foreclosure is allowed; it requires advertising for 4 successive weeks and a sale at least 28 days following the date of first publication.
	Judicial and Non-judicial	90 - 100	5 Year	-
	Judicial and Non-judicial	90	None	-
Missouri	Judicial and Non-judicial	60	1 Year	The publication of the sale notice should be given 21 days before foreclosure, during which the debtor may redeem the property or file a notice of redemption. The buyer involved in the foreclosure sale receives a trustee's deed.
Montana	Judicial and Non-judicial	150	None	A notice of default should be filed in case of foreclosure on deeds of trust which then requires a trustee sale to be held 120 days later.
Nebraska	Judicial	142	None	In case of deeds of trust, non-judicial foreclosure occurs and the process usually takes 90 days.
Nevada	Judicial and Non-judicial	116	None	In foreclosure a notice of default is recorded and mailed within 10 days. Then there is a 35-day reinstatement period after which, the beneficiary may accept partial payment or total payment for a 3-month period. The sale requires advertising for 3 consecutive weeks before it is executed.
New Hampshire	Non-Judicial	59	None	Judicial foreclosure is rare. Lenders may also foreclose through whatever power of sale is written into the mortgage originally. Entry, either by legal action or by taking possession peaceably in the presence of two witnesses, is possible under certain conditions specified by law.
New Jersey	Judicial	270	10 days	-
New Mexico	Judicial	180	30 - 270	-
New York	Judicial	445	None	-
North Carolina	Judicial and Non-judicial	110	None	-
North Dakota	Judicial	150	6 Months to 1 Year	-
Ohio	Judicial	216	None	-
Oklahoma	Judicial and Non-judicial	186	None	Foreclosures may also take place by power of sale provided the mortgage or the deed of trust allows it.
Oregon	Judicial and Non-judicial	150	6 Months	The attorneys act as trustees in case of non-judicial foreclosures.
Pennsylvania	Judicial	270	None	-
Rhode Island	Judicial and Non-judicial	62	None	The power-of-sale provision stated in mortgage agreement are applicable in foreclosure.
South Carolina	Judicial	150	None	Foreclosure sale is executed on the first Monday of every month. It follows the publication of a notice once a week for 3 successive weeks.
South Dakota	Judicial and Non-judicial	150	30 days to 1 Year	Foreclosure may occur through the power-of-sale provision provided in certain mortgage agreements. Sheriff's sale follows the publication of notice by 30 days.
Tennessee	Non-Judicial	40-45 days	2 Years	Foreclosures handled as per trustee sale provisions takes place within 22 days from the first publication of the notice until the public sale.
Texas	Judicial and Non-judicial	27	None	Foreclosure sale takes place at the courthouse on the first Tuesday of the month.
Utah	None	142	Court decides	-
Vermont	Judicial	95	6 Months to 1 Year	-
Virginia	Judicial and Non-judicial	45	None	-
Washington	Judicial and Non-judicial	135	None	In case of deeds of trust, a notice of default is sent first and the notice of sale is issued 30 days later. The notice of sale must be recorded, and mailed at least 90 days before the sale. The sale cannot take place before the completion of 190 days after the actual default.
West Virginia	Non-Judicial	60 - 90	None	Foreclosure takes place within a month.
Wisconsin	Judicial and Non-judicial	290	1 Year	The foreclosure requirements are stated in the mortgage agreement. Lenders waive the right to deficiency judgment in order to reduce the redemption period to 6 months.
Wyoming	Judicial and Non-judicial	60	6 Months to 1 Year	Residential foreclosures take place within 120 days.

Guest

Hi all

Judicial foreclosure is quite common when neither the mortgage nor the trust deed has the power of sale clause, thereby forcing the lender to take the borrower to court. But non-judicial foreclosure does not involve the court, rather the foreclosure process is conducted outside the court system.

Thanks,
Jill

blue · Posted: Wed Dec 14, 2005 3:32 pm Post subject:

In states like California where foreclosure on the deed of trust limits the amount of sale proceeds a lawsuit for judicial foreclosure may help the lender to recover the money if it was secured by the debtor's property.

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