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Foreclosures: Judicial vs. Non-Judicial

(EMAILWIRE.COM, August 13, 2008 ) Sacramento, CA – If you are someone who is falling behind on your mortgage payment and fear that you may lose your home to foreclosure there are certain things that you should know about how foreclosures work and what a lender needs to do to repossess a home.

Every state has different laws that apply to foreclosures and each of these states has a unique system of regulatory policies that spell out exactly how a bank can take back a home from a defaulting mortgage borrower. As always when considering a legal question the reader is advised to seek out specific legal guidance from appropriately licensed advisors or attorneys who can consult on a specific situation. Some states offer one foreclosure system or the other, and some provide for the possibility for either to be used.

What is a Judicial Foreclosure?

A judicial foreclosure is where a lender who has not been paid on a loan secured by a home files a complaint in court. This is a ‘lawsuit’ situation where the lender makes its case to a judge as to why it should be allowed to take back the property from the homeowner. At the time of filing a ‘lis pendens’ is usually filed to give other people notice that the house is the subject of foreclosure proceedings.

If the court agrees with the lender that the house should be sold to satisfy the debt, then the house is ordered sold at an auction. There may be additional rights of redemption available to the homeowner for a time period after the house has been declared forfeit for some time, and a homeowner should do careful research if their intent is to redeem the house.

In states like California (see below) if a lender wants to sue for a ‘deficiency judgment’ (suing the homeowner for the full amount owed on a house above and beyond its current fair market value) then they must use the judicial foreclosure process. There are many intricacies to this process that an experienced attorney can help you understand if you lender should choose to file this type of legal proceeding.

What is a Non-Judicial Foreclosure? (AKA Trustee’s Sale)

Some states like California are known as “Deed of Trust” states that allow for ‘power-of-sale’ foreclosures. This bypasses a court and the lender lets the defaulting borrower know via mail that they are in default and they simultaneously file a ‘Notice of Default’ (NOD) with the County Recorder’s office. After this there is usually a ‘period of redemption’ in which the homeowner can pay the past due amounts plus penalties assessed by the lender in accordance with the loan documents provisions.

In California this period is 3 months. An additional 21 days notice period is provided to the homeowner at the end of the 3 months before the house may be sold at auction, usually on the steps of the county courthouse.

Some states have different ‘redemption periods’ and some require different types of notice. This non-judicial foreclosure process usually only lets the lender take back the house and precludes the possibility of obtaining a deficiency judgment against the homeowner.

Get help to avoid foreclosure

If you’re facing the prospect of losing your home because you cannot afford to make the payments on it for any number of reasons there are many things you can do to help yourself. First of all, you should talk to your lender honestly and explain to them what is happening in your financial life that really prevents you from making your payments. You may be able to get the lender to agree to a ‘short-sale’ in which they agree to allow the house to be sold for less than what it is worth, or they may offer you a repayment program that will allow you to correct the financial shortfalls over time.

Other options that may help you include selling your house via a real estate agent or directly to a 'we buy houses 'real estate investor. If you have further questions on how to sell a house fast or how to buy a foreclosure home, please visit to register for a Free No-Obligation consultation to learn about your home selling options in today’s market. Company president and foreclosure expert Patrick McGilvray, J.D., is a noted foreclosure expert with many appearances in major media publications such as the New York Times, US News & World Reports, and the CBS Nightly News.
Patrick McGilvray
patrick @

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