Judicial and Non- judicial Foreclosures

Records between 2007 and 2014 from Debt.org, America’s Debt Help Organization show at least 4.2 million US homeowners losing their homes due to foreclosure. The US Department of Housing and Urban Development defines foreclosure as a legal process wherein a mortgage lender or creditor puts up the loan collateral (a house) for sale in order to recover from a borrower unpaid mortgages. The process leading to foreclosure usually starts after being delinquent in payment for three successive months.

Ryan Ruehle Cincinnati knows and understands the predicament many homeowners find themselves in due to changes in their financial situation, which may include loss of job, reduction in wages, an accident requiring hospitalization, divorce, or a severe health condition. His law firm explains, however, that legal options are available to homeowners to keep them from losing their homes; legal ways that can either delay or prevent foreclosure, which has almost always favored creditors due to their expertise in the practice and laws governing the process. And one of these legal options is mortgage modification.

There are two major types of foreclosures: judicial and non-judicial.

  • Judicial foreclosure requires the lender or the mortgagee (usually a bank) to first file and win a lawsuit before earning the right to foreclose on a property; this legal move of the lender is due to the payor’s failure to pay the mortgage for about three straight months (lenders, though, can legally foreclose on a property even with just a single default on payment).

Since this is foreclosure is tried in court it can take several months or a year for the whole procedure to be completed. There are currently 24 states that employ the judicial foreclosure process: Wisconsin, West Virginia, Vermont, South Dakota, South Carolina, Pennsylvania, Oklahoma, Ohio, North Dakota, New York, New Mexico, New Jersey, Nebraska, Maine, Louisiana, Kentucky, Kansas, Iowa, Indiana, Illinois, Hawaii, Florida, Delaware and Arizona.

  • Non-judicial foreclosure does not necessitate lenders to acquire a court order to bed able to make a foreclosure. However, this type of foreclosure is allowed only if the deed of trust contains a “power-of-sale” clause. This power of sale condition in a deed of trust, or mortgage, communicates the borrower’s consent to the selling of his/her mortgaged property through non-judicial foreclosure in the event of a default in payment. Before auctioning off a property, though, the lender must first give special notice to the owner of the property.

The power of sale foreclosure is allowed in the states of Wisconsin, West Virginia, Washington, Utah, Texas, Tennessee, South Dakota, Rhode Island, Oregon, North Carolina, New Hampshire, Nevada, Nebraska, Montana, Missouri, Mississippi, Minnesota, Michigan, Massachusetts, Maryland, Idaho, Hawaii, Georgia, District of Columbia, Colorado, California, Arkansas, Arizona, Alaska and Alabama.

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