LSC. Your Comprehensive Guide to Loan Modifications. Timing is Everything: State by State Foreclosure Laws. LoanSaverConsultant.
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1 Presented by LSC LoanSaverConsultant.com $ $ Timing is Everything: State-by-State Foreclosure Timelines Your Comprehensive Guide to Loan Modifications Timing is Everything: State by State Foreclosure Laws
2 Timing Is Everything State by State Foreclosure Timelines Presented by I m the Solution
3 Timing is Everything State by State Foreclosure Outlines Legal Information Is Not The Same as Legal Advice This booklet provides information about foreclosure law designed to help users safely determine their own legal needs. Please understand that legal information is not the same as legal advice. The application of law varies with an individual's specific circumstances. The laws of every state are in constant change, and although we doing everything we can to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that this information, and your interpretation of it, is appropriate to your particular situation. All rights reserved. Copyright 2009 by I m the Solution, LLC To order more booklets, please call All rights reserved. No portion of this book may be reproduced in any manner, mechanical or electronic, without written permission from the publisher, except for brief portions, which may be quoted in articles or reviews. Printed and bound in the United States.
4 Table of Contents Page 3 Alabama 5 Alaska 6-7 Arizona 8-9 Arkansas California 12 Colorado Connecticut 15 Delaware 16 Florida 17 Georgia 18 Hawaii Idaho 21 Illinois 22 Indiana 23 Iowa 24 Kansas 25 Kentucky 26 Louisiana 27 Maine 28 Maryland Massachusetts 31 Michigan 32 Minnesota Mississippi 35 Missouri 36 Montana 37 Nebraska 38 Nevada New Hampshire New Jersey 43 New Mexico 44 New York 45 North Carolina 46 North Dakota 47 Ohio 48 Oklahoma Oregon Pennsylvania 53 Rhode Island 54 South Carolina South Dakota 57 Tennessee Texas 60 Utah Vermont Virginia Washington Washington D.C. 69 West Virginia 70 Wisconsin Wyoming NOTES 75-78
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6 Alabama Page 5 Alabama Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Varies by Process; Typically days - Right of Redemption: 12 months - Deficiency Judgments Allowed: Yes In Alabama, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. However, when no power of sale is present, lenders may, at their option, choose to forego a lawsuit and foreclose by selling the property, as outlined below in the "No Power of Sale Foreclosure Guidelines". Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. However, if the deed of trust or mortgage contains a power of sale clause, but does not specify the time, place and terms of sale, then a foreclosure sale may take place at the front or main door of the courthouse of the county where the property located, after default of the deed of trust or mortgage, for cash to the highest bidder. The sale may not take place until thirty (30) days after the last notice of sale is published. Said notice of sale must be given by publication once a week for four (4) successive weeks in a newspaper
7 Alaska Page 6 published in the county or counties in which the property is located. If the property is under mortgage in more than one county, the publication is to be made in all counties where it is located. The notice of sale must give the time, place and terms of said sale, together with a description of the property. If no newspaper is published in the county where the lands are located, the notice shall be placed in a newspaper published in an adjoining county for four (4) successive weeks. No Power of Sale Foreclosure Guidelines If no power of sale is contained in a mortgage or deed of trust, the lender, or any assignee thereof, may, after default of the mortgage or deed of trust, either file a lawsuit to foreclose or foreclose by selling the property to the highest bidder for cash at the courthouse door of the county where the property is situated. Said sale may not take place until after notice of the time, place, terms and purpose of the sale has been published for four (4) consecutive weeks in a newspaper published in the county wherein said lands, or a portion thereof are situated. Alaska Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Varies by Process; Typically 90 days - Right of Redemption: Varies by Process - Deficiency Judgments Allowed: Varies by Process In Alaska, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, has been instituted more since the late 1980's, when lenders found that they were foreclosing on residential property worth substantially less than the amount owed. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder. In the case of judicial foreclosure, the process is carried out according to the rules of equity, deficiency suits are permitted and the borrower has no rights of redemption.
8 Alaska cont. Page 7 Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed, provided it meets the minimum protection laws set forth by the State of Alaska. Otherwise, the non-judicial power of sale foreclosure is carried out in the following three phases: The trustee must record a notice of default in the office of the recorder of the recording district in which the property is located not less than thirty (30) days after the default and not less than three (3) months before the sale. Said notice of default must state the name of the borrower, the book and page where the deed is recorded and it must describe the property, the borrower s default, the amount the borrower owes, and the trustee s desire to sell. It must also state the date, time and place of the sale. Within ten (10) days after recording the notice of default, the trustee must mail a copy of the same by certified mail to the last know 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 of trustee and (3) any occupant. The trustee may have the notice delivered personally instead of sending it by certified mail. 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. The sale must be made at a public auction held at the front door of a courthouse of the superior court in the judicial district where the property is located. The trustee must sell to the highest and best bidder and the lender may bid at auction. The trustee may postpone sale of all or any portion of the property by delivering to the person conducting the sale a written and signed request for the postponement to a stated date and hour. The person conducting the sale shall publicly announce the postponement to the stated date and hour at the time and place originally fixed for the sale. This procedure shall be followed in any succeeding postponement. When this type of foreclosure process is used, the borrower has a right to redeem the property and deficiency suits are not allowed.
9 Arizona Page 8 Arizona Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically 90 days - Right of Redemption: None - Deficiency Judgments Allowed: Varies In Arizona, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: The trustee must record a notice of sale in the office of the recorder of the county where the property is located. Within five (5) days after the notice is recorded, the trustee must mail, by certified mail, a copy of the notice of sale to each of the people who are parties to the trust deed, except for himself. Additionally, the notice must appear in a newspaper in the county where the property is located once a week for four (4) consecutive weeks, with the last notice being published not less than ten (10) days prior to the date of the sale.
10 Arizona Cont. Page 9 Optionally, if it can be done without a breach of the peace, the trustee can post the notice at least twenty (20) days prior to the date of the sale, in some conspicuous place on the property to be sold and/or 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. 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 lean, instead of paying cash. A successful high bidder must pay the bid price by 5 pm 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 pm, the day after being notified of the option to buy, then the trustee may postpone the sale. 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. Once the sale is complete, the proceeds will go to the payment of the obligations secured by the deed of trust that was foreclosed, then to junior lien holders in order of their priority. The successful bidder gets a trustee s deed, which provides conclusive evidence that the trustee conducted the foreclosure sale property. A note regarding Deficiency Suits: A lender may not bring a 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 that the balance due on the loan. However, in foreclosures against other types of property, a deficiency suit is allowed, but 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 ninety (90) days of the power of sale foreclosure.
11 Arkansas Page 10 Arkansas Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically 120 days - Right of Redemption: Varies - Deficiency Judgments Allowed: Varies In Arkansas, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. However, an appraisal of the property must be made prior to the schedule date of 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 again within twelve (12) months. The second sale may be to the highest bidder without reference to the previous appraisal. In judicial foreclosure, a court decrees the amount of the borrowers debt 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 (3) months, but not more than six (6) months, or on installments to not more than four (4) months credit overall. To secure payment, a lien will be retained on the property for its price and the purchaser must also give a bond with surety for the amount of the purchase price. The lender may bid at the sale 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. If 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. The borrower has one (1) year from the date of the sale to redeem the property by paying the amount for which the property was sold, plus interest. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of
12 Arkansas cont. Page 11 trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: The trustee must record a notice of sale in the office of the recorder of the county where the property is located. The mortgagee's or trustee's notice of default and intention to sell shall be mailed within thirty (30) days of the recording of the notice by certified mail to the borrower. 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. Within five (5) days after the notice is recorded, the trustee must mail, by certified mail, a copy of the notice of sale to each of the people who are parties to the trust deed, except for himself. Additionally, the notice of default and intention to sell must appear in a newspaper in the county where the property is located once a week for four (4) consecutive weeks, with the last notice being published not less than ten (10) days prior to the date of the sale. Said notice of default and intention to sell must contain the names of the parties to the mortgage or deed of trust, a legal description of the trust property and, if applicable, the street address of the property, the book and page numbers where the mortgage or deed of trust is recorded or the recorder's document number, the default for which foreclosure is made, the mortgagee's or trustee's intention to sell the trust property to satisfy the obligation, including, in conspicuous type, a warning as follows: "YOU MAY LOSE YOUR PROPERTY IF YOU DO NOT TAKE IMMEDIATE ACTION" and the time, date, and place of sale. 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 (10) 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 trustee may postpone the sale by public proclamation at the time, place and date last appointed for sale, up to seven (7) days past the original date, but if for a longer time, then the whole notice procedure must be performed a second time, including the sixty (60) day wait. Once the sale is complete, the proceeds will go to the pay for the expenses of the foreclosure sale, then toward the obligations secured by the trust deed that was foreclosed and then to junior lien holders in order of their priority. The original borrower is entitled to receive any remaining funds. The successful bidder receives a trustee s deed. The lender may sue the borrower for a deficiency within twelve (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.
13 California Page 12 California Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically 120 days - Right of Redemption: Varies - Deficiency Judgments Allowed: Varies In California, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder. Using this type of foreclosure process, lenders may seek a deficiency judgment and under certain circumstances, the borrower may have up to one (1) year to redeem the property. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: A notice of sale must be: 1) recorded in the county where the property is located at least fourteen (14) days prior to the sale; 2) mailed by certified, return receipt requested, to the borrower at least twenty (20) days
14 Colorado Page 13 before the sale; 3) posted on the property itself at least twenty (20) days before the sale; and 4) posted in one (1) public place in the county where the property is to be sold. The notice of sale must contain the time and location of the foreclosure sale, as well as the property address, the trustee's name, address and phone number and a statement that the property will be sold at auction. The borrower has up until five days before the foreclosure sale to cure the default and stop the process. The sale may be held on any business day between the hours of 9:00 am and 5:00 pm and must take place at the location specified in the notice of sale. The trustee may require proof of the bidders ability to pay their full bid amount. Anyone may bid at the sale, which must be made at public auction to the highest bidder. If necessary, the sale may be postponed by announcement at the time and location of the original foreclosure sale. Lenders may not seek a deficiency judgment after a non-judicial foreclosure sale and the borrower has no rights of redemption. Colorado Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically four months - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Colorado, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-
15 Colorado cont. Page 14 authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines The foreclosure process in Colorado is quite a bit different than in other states because here, the governor appoints a "Public Trustee" for each county in the state. The trustee must act as an impartial party when handling a power of sale foreclosure. In Colorado, the non-judicial power of sale foreclosure is carried out as follows: The process begins when the attorney representing the lender files the required documents with the Office of the Public Trustee of the county where the property is located. The Public Trustee then files a "Notice of Election and Demand" with the county clerk and recorder of the county. Once recorded, the notice must be published in a newspaper of general circulation within the county where the property is located for a period of five (5) consecutive weeks. The Public Trustee must also mail, within ten (10) 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 twenty-one (21) days before the foreclosure sale, a notice to the borrower describing how to redeem the property. The owner of the property may stop the foreclosure proceedings by filing an "Intent to Cure" with the Public Trustee's office at least fifteen (15) days prior to the foreclosure sale and then paying the necessary amount to bring the loan current by noon the day before the foreclosure sale is scheduled. The foreclosure sale must take place between forty-five (45) and sixty (60) days after the recording of the election and demand for sale with the county clerk and recorder. The Public Trustee may hold the sale at any entrance to the courthouse, unless other provisions were made in the deed of trust. The lender has the option to file a suit for deficiency in Colorado and the borrower has up to seventy five (75) days after the sale to redeem the property by paying the foreclosure sale amount, plus interest.
16 Connecticut Page 15 Connecticut Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 60 days - Right of Redemption: No - Deficiency Judgments Allowed: Yes In Connecticut, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. The judicial foreclosure process in Connecticut is carried out by either strict foreclosure or a decree of sale. With strict foreclosure, no actual foreclosure sale is held. Instead, the lender goes to court to try and obtain a court order demonstrating the borrower is in default of the mortgage. If successful, the title transfers to the lender immediately. However, the court sets an established amount of time in which the borrower may redeem the property, but if they fail to do so, the title becomes absolute to the lender and the borrower has no longer has any claim to the property. The lender then has thirty (30) days to record a certificate of foreclosure, which must contain a description of the property, the foreclosure proceedings, the mortgage and the date the title became absolute. With a decree of sale, the court: 1) establishes the time and manner of the sale; 2) appoints a committee to sell the property; and 3) appoints three appraisers to determine the value of the property. The borrower may stop the foreclosure proceedings at any time before the sale by paying the balance due on the mortgage. If no such payment is made, the committee will go forward with the sale. The lender may sue to obtain a deficiency judgment in Connecticut.
17 Delaware Page 16 Delaware Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 90 days - Right of Redemption: No - Deficiency Judgments Allowed: No In Delaware, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. Lenders in Delaware are given a number of options in which they may pursue judicial foreclosure, but the most commonly used procedure is the Scire Facias. This proceeding is quite different from other judicial foreclosures because instead of the lender having to prove the borrower is in default of the mortgage, the borrower has to prove he isn't. Although the suit to obtain an order for foreclosure is filed by the lender, the borrower must appear in court within twenty (20) days of being served a writ to provide evidence as to why the foreclosure should not take place. Unless the court is satisfied with the borrowers explanation and evidence, they will authorize a foreclosure sale. Said sale must be conducted by the sheriff and held either at the courthouse or at the property itself at least fourteen (14) days after the notice of sale is posted on the property and in other public places throughout the county in which it is located. The buyer has no right of redemption once the court has confirmed the sale.
18 Florida Page 17 Florida Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 180 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Florida, all mortgages are foreclosed in equity. In a mortgage foreclosure action, the court severs, for separate trial, all counterclaims against the foreclosing lender. The foreclosure claim shall, if tried, be tried to the court without a jury. The court order of foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms. Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the lender or their representative to place such advertisement, publication, or notice. Equitable Right of Redemption ends at the foreclosure sale (or at another time specified by the courts, but this rarely happens). There is a period of time after the sale that "the court reviews the sale to ensure a fair price has been paid." Basically, this period of time allows parties to object to the sale on the basis that proper procedures were not followed or collusion existed between the bidders, for example. This period is usually 10 days, after which the Certificate of Sale is filed and title passes, if the sale is confirmed. If the sale is not confirmed, another sale is ordered. (Reference F.S. Chapter 702) The lender may sue to obtain a deficiency judgment in Florida.
19 Georgia Page 18 Georgia Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically 90 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Georgia, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: A foreclosure notice must be mailed by certified mail, return receipt requested to the borrower 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 documents.
20 Hawaii Page 19 The notice must be published in a newspaper of general circulation in the county where the sale will be held once a week for four (4) weeks proceeding the date of the foreclosure sale. The sale 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. Lenders may seek a deficiency judgment in Georgia. Hawaii Foreclosure Law Summary - Non- Available: Yes - Primary Security Instruments: Deed of Trust, Mortgage - Timeline: Typically 60 days - Right of Redemption: None - Deficiency Judgments Allowed: Yes In Hawaii, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or nonjudicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure
21 Hawaii cont. Page 20 is carried out as follows: The notice of intent to foreclose must be published once a week for three (3) successive weeks, the last publication to be not less than fourteen (14) days before the day of sale, in a newspaper having a general circulation in the county in which the mortgaged property is located. Copies of the notice must be mailed or delivered to the mortgagor, the borrower, any prior or junior creditors, the state director of taxation and any other person entitled to receive notice. Additionally, the notice must be posted on the premises not less than twenty-one (21) days before the day of sale. Said notice must state: 1) The date, time, and place of the public sale; 2) The dates and times of the two (2) open houses of the mortgaged property, or if there will not to be any open houses, the public notice shall so state; 3) The unpaid balance of the moneys owed to the mortgagee under the mortgage agreement; 4) A description of the mortgaged property, including the address or description of the location of the mortgaged property, and the tax map key number of the mortgaged property; 5) The name of the mortgagor and the borrower; 6) the name of the lender; 7) The name of any prior or junior creditors having a recorded lien on the mortgaged property before the recordation of the notice of default; 8) The name, the address in the State, and the telephone number in the State of the person in the State conducting the public sale; and 9) The terms and conditions of the public sale. Additional wording, as required by the State of Hawaii, may be found here. Up until three (3) days before the sale, the borrower may cure the default and stop the sale by paying the lien debt, costs and reasonable attorney's fees, unless otherwise agreed to between the lender and the borrower. The sale, which may be held no earlier than fourteen (14) days after the last ad is published, is to be made at auction to the highest bidder. 4. Any sale, in which notice has been given, may be postponed from time to time by public announcement made by the lender or their representative. There are no rights of redemption in Hawaii
22 Idaho Page 21 Idaho Foreclosure Law Summary - Available: No - Non- Available: Yes - Primary Security Instruments: Deed of Trust - Timeline: Typically 150 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Idaho, lenders may foreclose on deeds of trusts in default using the non-judicial foreclosure process. Non- The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower preauthorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines". Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: The notice of sale must be recorded in the county where the property is located and given to the borrower and the occupants of the property (if not the borrower) at least one hundred twenty (120) days before the date of the sale. The notice must be published in the newspapers in the county where the property is located at least once a week for four (4) consecutive weeks. The final ad must be run not less than thirty (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. Said notice must describe the nature of the default, a legal description of the property, as well its street address, the lender's name, the date, time, and place of the sale, and the name and phone number of the person conducting the sale.
23 Illinois Page 22 The foreclosure sale must take place on the date, at the time and at the place specified in the notice. However, the sale may be postponed and held at a new time and place, so long as it is within thirty (30) days of the originally scheduled sale. If the property consists of more than twenty (20) acres, the buyer has a period of one (1) year to redeem said property. If it is less than twenty (20) acres, the period of time is lessened to six months. Illinois Foreclosure Law Summary - Non- Available: No - Primary Security Instrument: Mortgage - Timeline: Typically 210 days - Right of Redemption: No - Deficiency Judgments Allowed: Yes Lenders in Illinois have a number of options available to them to foreclose on a mortgage in default. A notice of the lenders intent to foreclose must be given to the borrower, and any other person entitled by Illinois statutes to receive notice, at least thirty (30) days prior to the courts judgment of foreclosure. If the court finds in favor of the lender and issues a notice of sale, the sale will be conducted on the terms and conditions specified in the notice of sale, provided they meet the minimum standards provided in the Illinois Statutes. The sheriff or any judge within the county where the property is located may conduct the sale. The borrower has no rights of redemption after the foreclosure sale. Deed in Lieu of Foreclosure If the borrower has defaulted on the mortgage and the lender agrees, the borrower may simply give the deed to the lender and his interests in the property securing the deed will be terminated. If the lender agrees and accepts the deed, they may not seek to obtain a deficiency judgment against the borrower at any time afterward.
24 Indiana Page 23 Consent Foreclosure In this type of foreclosure, the court enters a judgment satisfying the mortgage by giving absolute title to the property secured by the mortgage to the lender. The borrower has no rights of redemption after this type of foreclosure judgment has been rendered and the lender may not file for a deficiency judgment. Lenders may also foreclose on a mortgage in default by using the common law strict foreclosure method, but Illinois law does not permit non-judicial power of sale foreclosures. Indiana Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 150 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Indiana, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder. However, there is a wait time between the date the suit was filed and the day the property is sold. In Indiana, the date the mortgage was signed determines the length of time a lender must wait between filing the suit and proceeding with the foreclosure sale. The wait time is anywhere from three (3) to twelve (12) months, but the owner may file a waiver of the time limit, which allows the sale to proceed without delay. When this occurs, the lender loses the right to pursue a deficiency judgment. 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.
25 Iowa Page 24 Iowa Foreclosure Law Summary - Non- Available: No - Primary Security Instrument: Mortgage - Timeline: Typically Right of Redemption: No - Deficiency Judgments Allowed: No In Iowa, lenders may foreclose on a mortgage in default using either the judicial or the alternative nonjudicial foreclosure process. The judicial foreclosure process is one in which the lender must file a complaint against the borrower and obtain a decree of sale from a court having jurisdiction in the county where the property is located before foreclosure proceedings can begin. Generally, if the court finds the borrower in default, they will give them a set period of time to pay the delinquent amount, plus costs. If the borrower does not pay within the set period of time, the court will then order the property to be sold. Notice of the sale must be posted in at least three public places of the county, one of which shall be at the county courthouse. In addition, there shall be two weekly publications of such notice in some newspaper printed in the county, with the first publication being at least four weeks before the date of sale, and the second at a later time before the date of sale. If the borrower is in actual occupation and possession of the property, the notice must be served on them at least twenty days prior to the date of the sale. The sale must be at public auction, between 9:00 am and 4:00 pm and the time must be stated clearly in the notice of sale. The sheriff shall receive and give a receipt for a sealed written bid submitted prior to the public auction. The sheriff may require all sealed written bids to be accompanied by payment of any fees required to be paid at the public auction by the purchaser, to be returned if the person submitting the sealed written bid is not the purchaser. The sheriff must keep all written bids sealed until the commencement of the public auction, at which time the sheriff will open and announce the written bids as though made in person. The sale may be postponed, but if it postponed for more than three days, notice of the new sale must be publicly announced at the time the sale was to have been made.
26 Kansas Page 25 Alternative non-judicial foreclosure procedure Borrowers in Iowa have the option of avoiding a foreclosure suit by voluntarily conveying all of their rights in the property secured by the mortgage to the lender. If the lender accepts the conveyance from the borrower, they are given immediate access to the property. However, they must waive any rights to file for a deficiency judgment against the borrower. Additionally, the borrower is required to sign a "disclosure of notice and cancellation", which states, among other things, that they are voluntarily giving up their rights to reclaim or occupy the property. The borrower and lender must also file a jointly executed document with the county recorders office stating that they have chosen to proceed with the foreclosure using the voluntary foreclosure procedures. Kansas Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 120 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Kansas, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder. The notice of the time and sale must be advertised once a week for three (3) consecutive weeks, with the last publication being no more than fourteen (14) and no less than seven (7) days before the scheduled date of sale. Notice of the sale must also be sent to the borrower within five (5) days of the first advertisement. Unless otherwise ordered by the court, the sale is typically held at the courthouse of the county in which the property resides. The sale is by public auction to the highest bidder, who will receive a certificate of purchase. After the sale is confirmed, the winning bidder will be entitled to receive a sheriff's deed, which will vest good and perfect title to the foreclosure bidder, once the borrowers right of redemption has
27 Kentucky Page 26 expired. The borrower typically has twelve (12) months from the date of the foreclosure sale to redeem the property. Lenders may sue to obtain a deficiency judgment for the difference between the foreclosure sale price and the amount due on the original mortgage. Kentucky Foreclosure Law Summary - Non- Available: No - Primary Security Instrument: Mortgage - Timeline: Varies - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes, but with restrictions In Kentucky, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. Generally, in judicial foreclosure, a court decrees the amount of the borrowers debt and gives him or her a short time to pay. If the borrower fails to pay within that time, the clerk of the court then advertises the property for sale. At some point prior to the scheduled date of foreclosure, an appraisal of the property must be made. If the foreclosure sale price is less than two-thirds of the appraised value, the borrower has a period of one year (12 months) from the date of the sale to redeem the property by paying the amount for which the property was sold, plus interest. It is possible to obtain a deficiency judgment against the borrower for the difference between the amount the borrower owed on the original loan and the foreclosure sale price, but only if the borrower was personally served with the lawsuit, or failed to answer.
28 Louisiana Page 27 Louisiana Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 60 days - Right of Redemption: No - Deficiency Judgments Allowed: Yes In Louisiana, lenders may foreclose on a mortgage in default by using the judicial foreclosure process. There are two types of judicial foreclosure proceedings in Louisiana, executory and ordinary process. The executory process takes place when the lender uses a mortgage that includes an "authentic act that imparts a confession of judgment", as provided in the Louisiana statutes. Essentially, this means the borrower signed and acknowledged the obligations of the mortgage in the presence of a notary public and two witnesses. This type of mortgage makes the foreclosure process easier for the lender because once the suit has been filed and the original note and a certified copy of the mortgage has been provided, the court will issue an order for the process to begin. Once ordered, the borrower must be then be served with a demand for the delinquent payments. The borrower has three (3) days to provide the delinquent payments or the court will order a writ of seizure and sale and the property will be sold after proper notice has been advertised for thirty (30) days. Lenders may also sue to obtain a deficiency judgment, but buyers have no rights of redemption.
29 Maine Page 28 Maine Foreclosure Law Summary - Non- Available: No - Primary Security Instruments: Mortgage - Timeline: Typically 90 days - Right of Redemption: Yes - Deficiency Judgments Allowed: Yes In Maine, lenders may foreclose on mortgages in default by using either a judicial or strict foreclosure process. Although Maine allows lenders to pursue foreclosure by judicial methods, which involves filing a lawsuit to obtain a court order to foreclose, it is only used in special circumstances. The primary method of foreclosure in Maine is strict foreclosure. Strict Foreclosure The strict foreclosure process is based on Maine's foreclosure doctrine in which the lender owns the property until the mortgage has been paid in full. If the borrower breaks any of the conditions established in the mortgage prior to the time the loan is paid in full, he or she will lose any right to the property and the lender will either take possession of the property or arrange for it's sale. In either case, the borrower has either a three (3) month (post-1975 mortgages) or a twelve (12) month (pre-1975 mortgages) redemption period. If the lender has taken possession of the property, they must hold possession of it for the entire redemption period to finalize the foreclosure. If the lender chooses to sell the property without taking possession of it first, they must file an initial suit and then wait until the redemption period has passed to sell the property by special procedures set forth by the court. The lender may file a for a deficiency judgment, but it is limited to the difference between the fair market value, as determined by an appraisal, and the balance of the loan in default.
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