Power of Sale Foreclosure vs. Judicial Foreclosure, how fast can the bank foreclose?
First of all, most lenders will not begin foreclosure proceedings until a borrower is 3-6 months behind on their payments. Although missing a single payment is a default under the terms of most loan documents, lenders have neither the time nor the desire to foreclose on borrowers who have missed one payment. The process will be initiated when it becomes clear that the debt can no longer be serviced. This post deals with the timing of a foreclosure once your lender has started the process and has instituted a foreclosure action against your property.
The speed with which a bank can foreclose on a borrower varies based on state law. There are basically two different types of jurisdictions for foreclosure purposes: power of sale jurisdictions and judicial foreclosure jurisdictions. In over half the states, the prevailing method of foreclosure is non-judicial power of sale foreclosure. What does this mean? If you have entered into a deed of trust with your mortgage lender, your deed is held by a Trustee pending full payment of your note. In the event you fail to make your mortgage payments the trustee has authority to sell your home at auction. Power of sale foreclosure can occur much more quickly than judicial foreclosure because the trustee vested with the power of sale does not need court oversight to sell the property. The trustee will give Notice of a public foreclosure sale and then sell the distressed property to the highest bidder. A court will usually not oversee the process. If a default has occurred the trustee is permitted to go through with the
foreclosure sale after a relatively short notice period (usually two to three months from the date foreclosure proceedings are instituted). If you live in a power of sale Jurisdiction, your mortgage lender can complete the foreclosure process in two to three months. Today, 29 states (Alabama, Alaska, Arizona, California, Colorado, the District of Columbia, Georgia, Hawaii, Idaho, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming) allow foreclosure by the power of sale
Judicial foreclosure is available in every state and is the required method of foreclosure in many states. Judicial foreclosure jurisdictions require a court to oversee the foreclosure process. Like power of sale jurisdictions, all interested parties must receive notice of the foreclosure sale. Judicial foreclosure proceedings can take a year or more to be completed . The requirement that the lender foreclose through the court system slows down the process considerably. While either method of foreclosure can be successfully challenged by an attorney, the court oversight of judicial foreclosure allows more procedural leverage to slow down aggressive lenders.
It is important for consumers to understand that they have rights in the fight against foreclosure. Power of sale jurisdictions allow for your property to be sold outside of court supervision but they still require you receive adequate notice of the sale and that your property be sold for a reasonable price. Hiring an experienced foreclosure defense attorney in a judicial foreclosure jurisdiction could buy you months while you fight back against the bank. Bankruptcy, although a last resort, will stop a foreclosure dead in its tracks due the Automatic Stay that freezes all creditor collection actions the minute a case is filed. I have filed many bankruptcy cases for clients the night before their home was scheduled to be sold at auction and had the process stopped. Chapter 13 bankruptcy may allow you to stay in your home while getting caught up on mortgage arrearages that have spiraled out of control. You have options and there is help available, but remember if you are in a power of sale jurisdiction and have
executed a deed of trust with your lender, the foreclosure process can be completed in a matter of months.
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