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US Judicial and Non-judicial Foreclosure

Posted on: 14th Dec, 2005 01:31 am
The process of foreclosure in United States differs from state to state. In general, there are two types of proceedings - Judicial and Non-judicial foreclosures.

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

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

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

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

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

StatesForeclosure Implemeted
Foreclosure Process Period (Days)
Foreclosure Redemption Period
Comments
AlabamaJudicial 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.
AlaskaJudicial and Non-judicial
105
1 year
Redemption period applies to cases of judicial foreclosure only.
ArizonaJudicial 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.
ArkansasJudicial and Non-judicial
70
1 year
Redemption period can be applied on judicial foreclosure only.
CaliforniaJudicial and Non-judicial
117
1 year
Only judicial foreclosure involves the redemption period.
ColoradoJudicial and Non-judicial
91
75 days
Judicial foreclosure is not usually applied.
ConnecticutJudicial
62
Court decides
Only judicial foreclosures are possible, either by a suit in equity for strict foreclosure or by a court decree of sale.
DelawareJudicial
170 - 210
None
-
District of ColumbiaNon-Judicial
47
None
A 30-day notice of sale is sent by certified mail before the foreclosure starts.
FloridaJudicial
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.
GeorgiaJudicial 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.
HawaiiJudicial and Non-judicial
220
None
Judicial foreclosure is used rather than powers of sale for both mortgages and agreements of sale.
IdahoJudicial and Non-judicial
150
1 Year
-
IllinoisJudicial
300
90 days
-
IndianaJudicial
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.
IowaJudicial and Non-judicial
160
20 days
Lenders prefer mortgages because deeds of trust do not circumvent judicial foreclosure.
KansasJudicial
130
1 Year
-
KentuckyJudicial
147
1 Year
Any security instrument requires a decree in equity for its enforcement.
LouisianaJudicial
180
None
The Sheriff provides successful foreclosure sale bidders with an adjudication.
MaineJudicial
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.
MarylandJudicial
46
Court decides
Security instruments can include a private power of sale.
MassachusettsJudicial
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.
MichigunNon-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
-
MissouriJudicial 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.
MontanaJudicial 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.
NebraskaJudicial
142
None
In case of deeds of trust, non-judicial foreclosure occurs and the process usually takes 90 days.
NevadaJudicial 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 HampshireNon-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 JerseyJudicial
270
10 days
-
New MexicoJudicial
180
30 - 270
-
New YorkJudicial
445
None
-
North CarolinaJudicial and Non-judicial
110
None
-
North DakotaJudicial
150
6 Months to 1 Year
-
OhioJudicial
216
None
-
OklahomaJudicial and Non-judicial
186
None
Foreclosures may also take place by power of sale provided the mortgage or the deed of trust allows it.
OregonJudicial and Non-judicial
150
6 Months
The attorneys act as trustees in case of non-judicial foreclosures.
PennsylvaniaJudicial
270
None
-
Rhode IslandJudicial and Non-judicial
62
None
The power-of-sale provision stated in mortgage agreement are applicable in foreclosure.
South CarolinaJudicial
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 DakotaJudicial 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.
TennesseeNon-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.
TexasJudicial and Non-judicial
27
None
Foreclosure sale takes place at the courthouse on the first Tuesday of the month.
UtahNone
142
Court decides
-
VermontJudicial
95
6 Months to 1 Year
-
VirginiaJudicial and Non-judicial
45
None
-
WashingtonJudicial 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 VirginiaNon-Judicial
60 - 90
None
Foreclosure takes place within a month.
WisconsinJudicial 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.
WyomingJudicial and Non-judicial
60
6 Months to 1 Year
Residential foreclosures take place within 120 days.
Hi all

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

Thanks,
Jill
Posted on: 14th Dec, 2005 02:41 am
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.
Posted on: 14th Dec, 2005 02:32 pm
How likely is it for the court to grant a redemption for the owners to stay in the home for a period of time?
Posted on: 25th Jan, 2010 10:41 am
Hi AT,

It depends on your state laws and your particular situation if the court will grant you a redemption period. Generally, if your state foreclosure laws allow a borrower a redemption period, chances are that the court will also allow you a certain period of time to redeem your property.
Posted on: 25th Jan, 2010 10:29 pm
approximately how long after sheriff sale in the state of FL am I allowed to remain in the home? How much notification is given prior to final day out of property?
Posted on: 23rd Mar, 2010 10:06 pm
is there a way to avoid a dj after the auction has occured? where can I find the amount and purchaser info of my foreclosure?
Posted on: 23rd Mar, 2010 10:10 pm
Hi elc,

Judicial foreclosures in Florida take about 135 days to complete. In certain cases, the court may also allow you a redemption period during which you can buy the property back on payment of a certain sum of money. However, the courts rarely provide you with such redemption period. In Florida, the court can review the foreclosure sale to make sure that the fair price has been paid. It generally happens within 10 days of the sale of the house. During this time, you can object to the foreclosure sale if proper procedures were not followed. Thus, after the foreclosure sale, you are expected to get a maximum of 10 days to vacate the property. You may have to vacate early depending on your particular situation.

The lender will come after you with a deficiency judgment only if they think you are capable of paying off the difference. You may file bankruptcy to get the deficiency discharged. But it will damage your credit to a great extent. You can get the foreclosure related information on the 1099A Form which your lender will send you.

Thanks,

Jerry
Posted on: 24th Mar, 2010 02:22 am
i am letting a house go that i am on the deed through rights of survivorship and not on the mortgage can i still stay in the home during the foreclosure are there terms different?
Posted on: 04th May, 2010 02:32 pm
Hi klowe,

You can stay in the home while the property is in foreclosure but after the property is sold off, then you'll have to leave the property.

Thanks
Posted on: 04th May, 2010 10:40 pm
How long of a redemption period do i have,if any at all in South Carolina?
Posted on: 19th May, 2010 12:36 pm
As far as I know, South Carolina law does not allow a borrower to redeem his or her property once a foreclosure sale has been finalized by the lender.
Posted on: 20th May, 2010 01:53 am
we have a 10 day to vacate notice stating that our home was purchased at public auction by our mortage company in circiut court. we were unaware of this until we recieved the letter. we live in va and yes we are behind in payments. we were working towards a loan modification when this happend. are we done with no other options or is there something we can do
Posted on: 05th Jun, 2010 07:49 am
Hi gina,

Didn't the lender inform you that your property will be sold off at a foreclosure auction? It is mandatory for the lender to inform you if he plans to sell off your property to recover the dues. Also, as you were negotiating with the lender for a loan modification, he won't be able to foreclose the property. It's quite strange that he has done so.

You will have to contact the lender and check out if you can redeem the property. You will have to pay off the delinquent dues in full along with the late fees and other charges. This will help you in recovering the property.

Thanks,

Jerry
Posted on: 07th Jun, 2010 02:59 am
I have looked through the S.C. Code of Laws and while I do see information about the deficiency judgment as it relates to foreclosure, I cannot find anything in the Code that addresses if there is a *time period* within which a lender has to file a deficiency judgment. Can anyone direct me to a source?
Posted on: 21st Jul, 2010 01:18 pm
In California each home are serve different. How would I know if I can do a lis pending on my property for a redemption? How does it work? and do I have to hire a lawyer?
Posted on: 30th Sep, 2010 01:04 am
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