The Foreclosure Process

A Foreclosure is defined as “the process of taking possession of a mortgaged property as a result of the mortgagor’s failure to keep up mortgage payments.” To simplify, it’s the act of a home being taken away from you due to your failure of paying the mortgage payments.

When someone buys a home, they sign a mortgage or deed of trust. This document puts a lien on the property, making the loan a secured loan. When the lender loans you money without any type of collateral (credit card debt, etc.) they can take you to court for failure of payment.

What types of foreclosures are there?

There are two different types of foreclosures in the US – Judicial or Non-judicial. In a Judicial Foreclosure, the lender will seek to foreclosure by filing a civil lawsuit against the borrower. It is handled through the local court system, where the court appoints a referee to conduct the foreclosure auction on the courthouse steps. The lender will record a lis pendens with the country clerk, which becomes a lien on the property and gives notice to the pending foreclosure auction. The court will grant judgment permitting the lender to conduct the foreclosure auction. This process takes up to 4-8 months to complete.

The second type of foreclosure is a non-judicial foreclosure. It is followed by the deed of trust states. A deed of trust is an interest in real property to a third- party to hold as security for repayment of a debt. The trustee has the authority to initiate foreclosure proceedings by virtue of power of sales. The trustee will record a notice of default with the county clerk and gives notice of the impending foreclosure. It also grants the borrower a period of time in which to object the lenders claim o pay what he owes. The borrower may not stop the foreclosure after the expiration of this time period.  After the expiration of this time period, the trustee will record a Notice of Trustee’s Sale with the county clerk, which will establish the date, time, and place of the foreclosure auction. It can take up to 12 months to complete the foreclosure, depending on the state.

What is the Foreclosure process?

There are five stages of the foreclosure process.

Stage 1: Missed Payments – Foreclosure starts when a borrower fails to make timey mortgage payments. This can be due to financial hardships, such as unemployment, divorce, death, or medical related issues. Other times, borrowers decide to stop paying because the property mortgage exceeds the value of the home, or they are tired of managing the property.

Stage 2: Public Notice – After about 3-6 months of missed payments, the lender makes a public notice with the County Recorder’s Office, which indicates that the borrower has defaulted on their mortgage. This is also known as a Notice of Default. This official notice allows the borrower to be aware that they are in danger of losing all legal rights to their property and they may be evicted from the premises.

Stage 3: Pre-Foreclosure – After you receive Notice of Default the borrower will enter the “pre-foreclosure” phase, which takes anywhere from 30-120 days. The borrower can try to work out an arrangement with the lender via a short sale or pay the outstanding amount owed on the property. If the borrower decides to pay off the default during this phase, foreclosure ends and the borrower avoids home eviction and sail. If it is not paid, the foreclosure continues.

Stage 4: Auction – If the default is not remedied, the lender sets a date for the home to be sold at a foreclosure auction. It is recorded with the County Recorder’s Office that is posted on the property. Auctions are sometimes held at the courthouse, or the property itself. In some states, the borrower has the right of redemption, where he can come up with the outstanding cash and stop the foreclosure process up the moment the home will be auctioned off. At the auction, the home is sold to the highest cash bidder. Many lenders make agreements with the borrower (called the “deed in lieu of foreclosure) to take the property back because of the limited amount of buyers who can pay cash only for the property. Sometimes, the bank will buy the property back at the auction.

Stage 5: Post-Foreclosure – If a third party does not purchase the property at the foreclosure auction, the lender will take ownership of the property and it becomes known as a bank-owned property or REO, Real Estate Owned. Bank-owned properties are then listed with a local real estate agent for sale on the market, or some lenders prefer to sell their properties at a liquidation auction.

What are your rights as a tenant during a foreclosure?

If there are tenants in the house that was foreclosed on, the new owner has to honor the existing lease. When the tenants have a month-to-month lease the new owner can evict the tenants or former owner/landlord. You can offer the existing tenants a new lease or rental agreement, or begin the eviction process.

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