Understand Foreclosure Laws
If you want to find a great deal on a property when home-buying, you need to first understand how foreclosure laws vary between states. For example, do you know the difference between judicial foreclosures and non-judicial foreclosures? The state's foreclosure process directly impacts how the home will be sold. Here we will help you navigate through foreclosure procedures so you can better find the home of your dreams.
Foreclosure Procedures by State
The first step to finding a great home is to conduct a foreclosure laws comparison. Pick a state and look up the foreclosure process under state law. Illinois, for example, is a judicial foreclosure state only. Like with other judicial foreclosure states, most contracts in Illinois are mortgages and go through the courts. In non-judicial foreclosure states, like Michigan, most contracts are deeds of trust, and the process avoids the courts.
Of the fifty states, 25 have both a non-judicial and judicial foreclosure process. Only four states - Michigan, New Hampshire, Tennessee, and West Virginia - do not require courts. Twenty states - such as California, Florida, New York, and New Jersey - are strictly mortgage states.
States also vary by right of redemption. This is the right of the borrower to pay off the default amount to keep the home, and involves a window of opportunity called the redemption period. Most states that have a right to redemption are non-judicial foreclosure states.
Now that you know that state laws differ, we can examine the two processes.
Judicial Foreclosure Process
Of the two foreclosure methods, judicial foreclosure is the most common and involves legal action conducted by the owner of the mortgage against the holder of the mortgage. Mortgages are contracts between a lender and the mortgagor (homeowner). If the homeowner does not pay the mortgage, a mortgage lien is placed on the home and the matter is taken to court.
The legal action begins with a notice of lis pendens filed with the local county government by the lender's attorney. This is a pending action that serves as a legal complaint. With a lawsuit pending, the property is in the pre-foreclosure stage. The owner can still sell the home or try for a deed in lieu of foreclosure with the lender. Barring this, the case is argued before a judge, who determines if the mortgage foreclosure sale is to proceed. Should a court action be ordered for the foreclosure, the home is sold at a public auction, commonly called a sheriff sale. Court decisions on eviction are based off of the circumstances of the case so each situation varies. Foreclosure lien priority (such as between the IRS and other creditors) is also established in the court.
Non-Judicial Foreclosure Process
In non-judicial foreclosure states, lenders act without a court's approval. This is because in these states, most transactions involve deeds of trust instead of mortgages. A deed of trust is between a lender, a borrower (or trustor), and a third party - the trustee. It includes a power of sale clause which gives the trustee the power to revoke the property. This out-of-court process is much faster than going through the courts.
The lender begins the process by sending a default letter to the borrower in default. After a certain period of time, a Notice of Sale - a sale publication issued to the borrower - is sent. This establishes the date of the sale at a public auction. As mentioned, non-judicial foreclosure is the faster of the two foreclosure methods.
How Foreclosure Laws Influence Foreclosure Sales
To go along with foreclosure laws, there are several types of foreclosures that you have available in your state.
One category that many people miss comes with pre-foreclosures, a category that is directly impacted by foreclosure laws. These include short sales (homes that are worth less than what is owed) and for sale by owner (FSBO) homes. In order to avoid foreclosure, homeowners facing foreclosure will often try to sell their home to buyers like you (or go through bankruptcy). The foreclosure timeline determined by your state's laws determines how long you have to find and buy a pre-foreclosure before it is lost to auction.
What to do Now?
Once you've identified the state law and local laws that apply to you, and know the foreclosure procedures of the state you're in, you can begin the exciting process of searching for bargains in the market. Whether you live in mortgage states or trust states, you can approach the home-buying process with efficiency, confidence, and understanding.
|State||Judicial||Non-Judicial||Process Period (Days)||Sale Publication (Days)||Redemption Period (Days)||Sale/NTS|
|District of Columbia||•||47||18||None||Trustee|