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Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust,
Mortgage
- Timeline: Varies by Process; Typically 30 - 60
days
- Right of Redemption: 12 months
- Deficiency Judgments Allowed: Yes
In Alabama, lenders may foreclose on deeds of trusts or
mortgages in default using either a judicial or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing
a lawsuit to obtain a court order to foreclose, is used when no power of sale
is present in the mortgage or deed of trust. However, when no power of sale
is present, lenders may, at their option, choose to forego a lawsuit and foreclose
by selling the property, as outlined below in the "No Power of Sale Foreclosure
Guidelines".
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power
of sale clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes
the sale of property to pay off the balance on a loan in the event of the
their default. In deeds of trust or mortgages where a power of sale exists,
the power given to the lender to sell the property may be executed by the
lender or their representative. Regulations for this type of foreclosure process
are outlined below in the "Power of Sale Foreclosure Guidelines".
Power of Sale Foreclosure
Guidelines
If the deed of trust or mortgage contains a power of sale
clause and specifies the time, place and terms of sale, then the specified
procedure must be followed. However, if the deed of trust or mortgage contains
a power of sale clause, but does not specify the time, place and terms of
sale, then a foreclosure sale may take place at the front or main door of
the courthouse of the county where the property located, after default of
the deed of trust or mortgage, for cash to the highest bidder. The sale may
not take place until thirty (30) days after the last notice of sale is published.
Said notice of sale must be given by publication once a week for four (4)
successive weeks in a newspaper published in the county or counties in which
the property is located. If the property is under mortgage in more than one
county, the publication is to be made in all counties where it is located.
The notice of sale must give the time, place and terms of said sale, together
with a description of the property. If no newspaper is published in the county
where the lands are located, the notice shall be placed in a newspaper published
in an adjoining county for four (4) successive weeks.
No Power of Sale
Foreclosure Guidelines
If no power of sale is contained in a mortgage or deed of
trust, the lender, or any assignee thereof, may, after default of the mortgage
or deed of trust, either file a lawsuit to foreclose or foreclose by selling
the property to the highest bidder for cash at the
courthouse door of the county where the property is situated.
Said sale may not take place until after notice of the time, place, terms
and purpose of the sale has been published for four (4) consecutive weeks
in a newspaper published in the county wherein said lands, or a portion thereof
are situated.
More information on Alabama foreclosure laws.
Alaska Foreclosure
Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust,
Mortgage
- Timeline: Varies by Process; Typically 90 days
- Right of Redemption: Varies by Process
- Deficiency Judgments Allowed: Varies by Process
In Alaska, lenders may foreclose on deeds of trusts or mortgages
in default using either a judicial or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing
a lawsuit to obtain a court order to foreclose, has been instituted more since
the late 1980's, when lenders found that they were foreclosing on residential
property worth substantially less than the amount owed. Generally, after the
court declares a foreclosure, your home will be auctioned off to the highest
bidder.
In the case of judicial foreclosure, the process is carried
out according to the rules of equity, deficiency suits are permitted and the
borrower has no rights of redemption.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power
of sale clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes
the sale of property to pay off the balance on a loan in the event of the
their default. In deeds of trust or mortgages where a power of sale exists,
the power given to the lender to sell the property may be executed by the
lender or their representative, typically referred to as the trustee. Regulations
for this type of foreclosure process are outlined below in the "Power of Sale
Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale
clause and specifies the time, place and terms of sale, then the specified
procedure must be followed, provided it meets the minimum protection laws
set forth by the State of Alaska. Otherwise, the non-judicial power of sale
foreclosure is carried out in the following three phases:
The trustee must record a notice of default in the office
of the recorder of the recording district in which the property is located
not less than thirty (30) days after the default and not less than three (3)
months before the sale.
Said notice of default must state the name of the borrower,
the book and page where the deed is recorded and it must describe the property,
the borrower’s default, the amount the borrower owes, and the trustee’s desire
to sell. It must also state the date, time and place of the sale.
Within ten (10) days after recording the notice of default,
the trustee must mail a copy of the same by certified mail to the last know
address of (1) the borrower, and (2) any person whose claim or lien on the
property appears of record or is known to the lender of trustee and (3) any
occupant. The trustee may have the notice delivered personally instead of
sending it by certified mail.
Any time before the sale, the borrower may cure the default
and stop the sale by paying a sum equal to the missed payments plus attorney’s
fees. The lender may not require the borrower to pay off the entire remaining
principal balance of the loan to cure the default, just the missed payments
and attorney’s fees. If the lender has recorded a notice of default two or
more times, then the Alaska statutes provide that the lender can refuse to
accept the borrower’s monies for the missed payments and attorney’s fees and
proceed with the foreclosure sale instead.
The sale must be made at a public auction held at the front
door of a courthouse of the superior court in the judicial district where
the property is located. The trustee must sell to the highest and best bidder
and the lender may bid at auction.
The trustee may postpone sale of all or any portion of the
property by delivering to the person conducting the sale a written and signed
request for the postponement to a stated date and hour. The person conducting
the sale shall publicly announce the postponement to the stated date and hour
at the time and place originally fixed for the sale. This procedure shall
be followed in any succeeding postponement.
When this type of foreclosure process is used, the borrower
has a right to redeem the property and deficiency suits are not allowed.
More information on Alaska foreclosure laws.
Arizona Foreclosure
Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust,
Mortgage
- Timeline: Typically 90 days
- Right of Redemption: None
- Deficiency Judgments Allowed: Varies
In Arizona, lenders may foreclose on deeds of trusts or
mortgages in default using either a judicial or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing
a lawsuit to obtain a court order to foreclose, is used when no power of sale
is present in the mortgage or deed of trust. Generally, after the court declares
a foreclosure, your home will be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power
of sale clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes
the sale of property to pay off the balance on a loan in the event of the
their default. In deeds of trust or mortgages where a power of sale exists,
the power given to the lender to sell the property may be executed by the
lender or their representative, typically referred to as the trustee. Regulations
for this type of foreclosure process are outlined below in the "Power of Sale
Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale
clause and specifies the time, place and terms of sale, then the specified
procedure must be followed. Otherwise, the non-judicial power of sale foreclosure
is carried out as follows:
The trustee must record a notice of sale in the office of
the recorder of the county where the property is located. Within five (5)
days after the notice is recorded, the trustee must mail, by certified mail,
a copy of the notice of sale to each of the people who are parties to the
trust deed, except for himself. Additionally, the notice must appear in a
newspaper in the county where the property is located once a week for four
(4) consecutive weeks, with the last notice being published not less than
ten (10) days prior to the date of the sale.
Optionally, if it can be done without a breach of the peace,
the trustee can post the notice at least twenty (20) days prior to the date
of the sale, in some conspicuous place on the property to be sold and/or he
or she can post the notice at the courthouse or at a specified place at the
place of business of the trustee in the county in which the property is located.
The trustee or the trustee’s agent must conduct the sale.
The sale is for cash to the highest bidder, except that the lender can make
a "credit bid," which means to cancel out some part (or all) of the money
the borrower owed the lender on the lean, instead of paying cash. A successful
high bidder must pay the bid price by 5 pm of the day after the bid, other
than a Saturday or legal holiday. Every bid is an irrevocable offer until
the sale is completed, which happens when the bidder pays the bid price to
the trustee’s satisfaction. If the high bidder fails to make the payment by
5:00 pm, the day after being notified of the option to buy, then the trustee
may postpone the sale.
The trustee may postpone the sale to another time, or another
place, by giving notice of the new date, time and place by public declaration
at the last place and time the property was offered for sale. No other notice
is required. A trustee may also, by written agreement, extend the time for
a buyer to come up with the payment.
Once the sale is complete, the proceeds will go to the payment
of the obligations secured by the deed of trust that was foreclosed, then
to junior lien holders in order of their priority. The successful bidder gets
a trustee’s deed, which provides conclusive evidence that the trustee conducted
the foreclosure sale property.
A note regarding Deficiency Suits: A lender may not bring
a deficiency suit against a person who lost a property that is 2.5 acres or
less at a foreclosure, provided the property was a single one-family or a
single two-family dwelling. This is so even if the high bid at foreclosure
was less that the balance due on the loan. However, in foreclosures against
other types of property, a deficiency suit is allowed, but is limited to the
difference between the balance owed and the fair market value of the property,
and then only if the suit is brought within ninety (90) days of the power
of sale foreclosure.
More
information on Arizona foreclosure laws.
Arkansas
Foreclosure Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust,
Mortgage
- Timeline: Typically 120 days
- Right of Redemption: Varies
- Deficiency Judgments Allowed: Varies
In Arkansas, lenders may foreclose on deeds of trusts or
mortgages in default using either a judicial or non-judicial foreclosure process.
However, an appraisal of the property must be made prior to the schedule date
of foreclosure.
In any foreclosure under a mortgage or deed of trust in
Arkansas, the property must sell for not less than two-thirds of the appraised
value. If it does not, then it may be offered for sale again within twelve
(12) months. The second sale may be to the highest bidder without reference
to the previous appraisal.
Judicial Foreclosure
In judicial foreclosure, a court decrees the amount of the
borrowers debt and gives him or her a short time to pay. If the borrower fails
to pay within that time, then the clerk of the court, as commissioner, advertises
the property for sale.
Sales of real property under court order will be on a credit
of not less than three (3) months, but not more than six (6) months, or on
installments to not more than four (4) months credit overall. To secure payment,
a lien will be retained on the property for its price and the purchaser must
also give a bond with surety for the amount of the purchase price.
The lender may bid at the sale by crediting a portion (or
all) of the amount the court found was owed to the lender against the sales
price of the property purchased at the foreclosure sale. If the real estate
does not sell for an amount equal to what’s due on the mortgage loan, then
the lender may seize other property from the borrower as in an ordinary judgment.
The borrower has one (1) year from the date of the sale
to redeem the property by paying the amount for which the property was sold,
plus interest.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power
of sale clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes
the sale of property to pay off the balance on a loan in the event of the
their default. In deeds of trust or mortgages where a power of sale exists,
the power given to the lender to sell the property may be executed by the
lender or their representative, typically referred to as the trustee. Regulations
for this type of foreclosure process are outlined below in the "Power of Sale
Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale
clause and specifies the time, place and terms of sale, then the specified
procedure must be followed. Otherwise, the non-judicial power of sale foreclosure
is carried out as follows:
The trustee must record a notice of sale in the office of
the recorder of the county where the property is located. The mortgagee's
or trustee's notice of default and intention to sell shall be mailed within
thirty (30) days of the recording of the notice by certified mail to the borrower.
This includes any borrower of record or of whom the lender has actual notice.
The notice must also be mailed to anyone who records a Request for Notice
that specifically described the mortgagee including its recording information.
Within five (5) days after the notice is recorded, the trustee
must mail, by certified mail, a copy of the notice of sale to each of the
people who are parties to the trust deed, except for himself. Additionally,
the notice of default and intention to sell must appear in a newspaper in
the county where the property is located once a week for four (4) consecutive
weeks, with the last notice being published not less than ten (10) days prior
to the date of the sale.
Said notice of default and intention to sell must contain
the names of the parties to the mortgage or deed of trust, a legal description
of the trust property and, if applicable, the street address of the property,
the book and page numbers where the mortgage or deed of trust is recorded
or the recorder's document number, the default for which foreclosure is made,
the mortgagee's or trustee's intention to sell the trust property to satisfy
the obligation, including, in conspicuous type, a warning as follows: "YOU
MAY LOSE YOUR PROPERTY IF YOU DO NOT TAKE IMMEDIATE ACTION" and the time,
date, and place of sale.
Any person including the mortgagee (lender) may bid at the
sale, except the trustee, who may bid on the behalf of the beneficiary (lender)
but not for himself or herself in deed of trust sales. The high bidder must
pay the price bid at the time of sale, or within ten (10) days. The lender
may bid by canceling out what it is owed on the loan, including unpaid taxes,
insurance, costs or sale and maintenance, but for cash for any higher price.
The trustee may postpone the sale by public proclamation
at the time, place and date last appointed for sale, up to seven (7) days
past the original date, but if for a longer time, then the whole notice procedure
must be performed a second time, including the sixty (60) day wait.
Once the sale is complete, the proceeds will go to the pay
for the expenses of the foreclosure sale, then toward the obligations secured
by the trust deed that was foreclosed and then to junior lien holders in order
of their priority. The original borrower is entitled to receive any remaining
funds. The successful bidder receives a trustee’s deed.
The lender may sue the borrower for a deficiency within
twelve (12) months of a power of sale clause foreclosure. The lender may sue
for (1) the difference between the foreclosure sale price and the balance
due on the loan, or (2) the balance due on the loan minus the fair market
value of the property, whichever is less.
More information
on Arkansas foreclosure laws
California Foreclosure Law
Summary
Quick Facts
- Judicial Foreclosure Available:
Yes
- Non-Judicial Foreclosure Available:
Yes
- Primary Security Instruments: Deed
of Trust, Mortgage
- Timeline: Typically 120 days
- Right of Redemption: Varies
- Deficiency Judgments Allowed: Varies
In California, lenders may foreclose on deeds
of trusts or mortgages in default using either a judicial or non-judicial
foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which
involves filing a lawsuit to obtain a court order to foreclose, is used when
no power of sale is present in the mortgage or deed of trust. Generally, after
the court declares a foreclosure, your home will be auctioned off to the highest
bidder.
Using this type of foreclosure process, lenders
may seek a deficiency judgment and under certain circumstances, the borrower
may have up to one (1) year to redeem the property.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is
used when a power of sale clause exists in a mortgage or deed of trust. A
"power of sale" clause is the clause in a deed of trust or mortgage, in which
the borrower pre-authorizes the sale of property to pay off the balance on
a loan in the event of the their default. In deeds of trust or mortgages where
a power of sale exists, the power given to the lender to sell the property
may be executed by the lender or their representative, typically referred
to as the trustee. Regulations for this type of foreclosure process are outlined
below in the "Power of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a
power of sale clause and specifies the time, place and terms of sale, then
the specified procedure must be followed. Otherwise, the non-judicial power
of sale foreclosure is carried out as follows:
A notice of sale must be: 1) recorded in the
county where the property is located at least fourteen (14) days prior to
the sale; 2) mailed by certified, return receipt requested, to the borrower
at least twenty (20) days before the sale; 3) posted on the property itself
at least twenty (20) days before the sale; and 4) posted in one (1) public
place in the county where the property is to be sold.
The notice of sale must contain the time and
location of the foreclosure sale, as well as the property address, the trustee's
name, address and phone number and a statement that the property will be sold
at auction.
The borrower has up until five days before
the foreclosure sale to cure the default and stop the process.
The sale may be held on any business day between
the hours of 9:00 am and 5:00 pm and must take place at the location specified
in the notice of sale. The trustee may require proof of the bidders ability
to pay their full bid amount. Anyone may bid at the sale, which must be made
at public auction to the highest bidder. If necessary, the sale may be postponed
by announcement at the time and location of the original foreclosure sale.
Lenders may not seek a deficiency judgment
after a non-judicial foreclosure sale and the borrower has no rights of redemption.
More information on California foreclosure laws.
Colorado Foreclosure Law
Summary
Quick Facts
- Judicial Foreclosure Available:
Yes
- Non-Judicial Foreclosure Available:
Yes
- Primary Security Instruments:
Deed of Trust, Mortgage
- Timeline: Typically four months
- Right of Redemption: Yes
- Deficiency Judgments Allowed:
Yes
In Colorado, lenders may foreclose on deeds
of trusts or mortgages in default using either a judicial or
non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which
involves filing a lawsuit to obtain a court order to foreclose, is used
when no power of sale is present in the mortgage or deed of trust.
Generally, after the court declares a foreclosure, your home will be
auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is
used when a power of sale clause exists in a mortgage or deed of trust.
A "power of sale" clause is the clause in a deed of trust or mortgage,
in which the borrower pre-authorizes the sale of property to pay off the
balance on a loan in the event of the their default. In deeds of trust
or mortgages where a power of sale exists, the power given to the lender
to sell the property may be executed by the lender or their
representative, typically referred to as the trustee. Regulations for
this type of foreclosure process are outlined below in the "Power of
Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
The foreclosure process in Colorado is quite a bit different than in
other states because here, the governor appoints a "Public Trustee" for
each county in the state. The trustee must act as an impartial party
when handling a power of sale foreclosure. In Colorado, the non-judicial
power of sale foreclosure is carried out as follows:
The process begins when the attorney representing the
lender files the required documents with the Office of the Public
Trustee of the county where the property is located. The Public Trustee
then files a "Notice of Election and Demand" with the county clerk and
recorder of the county. Once recorded, the notice must be published in a
newspaper of general circulation within the county where the property is
located for a period of five (5) consecutive weeks.
The Public Trustee must also mail, within ten (10) days after the
publication of the notice of election and demand for sale, a copy of the
same and a notice of sale as published in the newspaper, to the borrower
and any owner or claimant of record, at the address given in the
recorded instrument. The Public Trustee must also mail, at lease
twenty-one (21) days before the foreclosure sale, a notice to the
borrower describing how to redeem the property.
The owner of the property may stop the foreclosure proceedings by
filing an "Intent to Cure" with the Public Trustee's office at least
fifteen (15) days prior to the foreclosure sale and then paying the
necessary amount to bring the loan current by noon the day
before the foreclosure sale is scheduled.
The foreclosure sale must take place
between forty-five (45) and sixty (60) days after the recording of the
election and demand for sale with the county clerk and recorder. The
Public Trustee may hold the sale at any entrance to the courthouse,
unless other provisions were made in the deed of trust.
The lender has the option to file a suit
for deficiency in Colorado and the borrower has up to seventy five (75)
days after the sale to redeem the property by paying the foreclosure
sale amount, plus interest.
More information on Colorado foreclosure laws.
Connecticut Foreclosure
Law Summary
Quick Facts
- Judicial Foreclosure Available:
Yes
- Non-Judicial Foreclosure Available:
No
- Primary Security Instruments: Mortgage
- Timeline: Typically 60 days
- Right of Redemption: No
- Deficiency Judgments Allowed: Yes
In Connecticut, lenders may foreclose on a
mortgage in default by using the judicial foreclosure process.
Judicial Foreclosure
The judicial foreclosure process in Connecticut
is carried out by either strict foreclosure or a decree of sale.
With strict foreclosure, no actual foreclosure
sale is held. Instead, the lender goes to court to try and obtain a court
order demonstrating the borrower is in default of the mortgage. If successful,
the title transfers to the lender immediately.
However, the court sets an established amount
of time in which the borrower may redeem the property, but if they fail to
do so, the title becomes absolute to the lender and the borrower has no longer
has any claim to the property. The lender then has thirty (30) days to record
a certificate of foreclosure, which must contain a description of the property,
the foreclosure proceedings, the mortgage and the date the title became absolute.
With a decree of sale, the court: 1) establishes
the time and manner of the sale; 2) appoints a committee to sell the property;
and 3) appoints three appraisers to determine the value of the property.
The borrower may stop the foreclosure proceedings
at any time before the sale by paying the balance due on the mortgage. If
no such payment is made, the committee will go forward with the sale.
The lender may sue to obtain a deficiency judgment
in Connecticut.
More information on Connecticut foreclosure laws.
Delaware Foreclosure Law
Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: No
- Primary Security Instruments: Mortgage
- Timeline: Typically 90 days
- Right of Redemption: No
- Deficiency Judgments Allowed: No
In Delaware, lenders may foreclose on a mortgage in default
by using the judicial foreclosure process.
Judicial Foreclosure
Lenders in Delaware are given a number of options in which
they may pursue judicial foreclosure, but the most commonly used procedure
is the Scire Facias.
This proceeding is quite different from other judicial foreclosures
because instead of the lender having to prove the borrower is in default of
the mortgage, the borrower has to prove he isn't. Although the suit to obtain
an order for foreclosure is filed by the lender, the borrower must appear
in court within twenty (20) days of being served a writ to provide evidence
as to why the foreclosure should not take place. Unless the court is satisfied
with the borrowers explanation and evidence, they will authorize a foreclosure
sale.
Said sale must be conducted by the sheriff and held either
at the courthouse or at the property itself at least fourteen (14) days after
the notice of sale is posted on the property and in other public places throughout
the county in which it is located.
The buyer has no right of redemption once the court has
confirmed the sale.
More information on Delaware foreclosure laws.
Florida Foreclosure Law
Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: No
- Primary Security Instruments: Mortgage
- Timeline: Typically 180 days
- Right of Redemption: Yes
- Deficiency Judgments Allowed: Yes
In Florida, all mortgages are foreclosed
in equity. In a mortgage foreclosure action, the court severs,
for separate trial, all counterclaims against the foreclosing
lender. The foreclosure claim shall, if tried, be tried to the
court without a jury.
The court order of foreclosure will specify how the foreclosure
must take place, and the foreclosure must take place on those
terms. Whenever a legal advertisement, publication, or notice
relating to a foreclosure proceeding is required to be placed
in a newspaper, it is the responsibility of the lender or their
representative to place such advertisement, publication, or notice.
Equitable Right of Redemption ends
at the foreclosure sale (or at another time specified by the courts,
but this rarely happens). There is a period of time after the
sale that "the court reviews the sale to ensure a fair price has
been paid." Basically, this period of time allows parties
to object to the sale on the basis that proper procedures were
not followed or collusion existed between the bidders, for example.
This period is usually 10 days, after which the Certificate of
Sale is filed and title passes, if the sale is confirmed.
If the sale is not confirmed, another sale is ordered. (Reference
F.S. Chapter 702)
The lender may sue to obtain a deficiency judgment in Florida.
More information on Florida foreclosure laws.
Georgia Foreclosure Law
Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust,
Mortgage
- Timeline: Typically 90 days
- Right of Redemption: Yes
- Deficiency Judgments Allowed: Yes
In Georgia, lenders may foreclose on deeds of trusts or
mortgages in default using either a judicial or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing
a lawsuit to obtain a court order to foreclose, is used when no power of sale
is present in the mortgage or deed of trust. Generally, after the court declares
a foreclosure, the property will be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power
of sale clause exists in a mortgage or deed of trust. A "power of
sale" clause is the clause in a deed of trust or mortgage,
in which the borrower pre-authorizes the sale of property to pay off the balance
on a loan in the event of the their default. In deeds of trust or mortgages
where a power of sale exists, the power given to the lender to sell the property
may be executed by the lender or their representative, typically referred
to as the trustee.
Regulations for this type of foreclosure process are outlined
below in the "Power of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale
clause and specifies the time, place and terms of sale, then the specified
procedure must be followed. Otherwise, the non-judicial power of sale foreclosure
is carried out as follows:
A foreclosure notice must be mailed by certified mail, return
receipt requested to the borrower no later than 15 days prior to the date
of the foreclosure sale. The time period begins the day the letter is postmarked.
The notice must be mailed to the address given to the lender by written notice
from the borrower. No waiver or release of the rights to notice is valid if
it was signed at the same time as the original documents.
The notice must be published in a newspaper of general circulation
in the county where the sale will be held once a week for four (4) weeks proceeding
the date of the foreclosure sale.
The sale must be made by public auction on the first Tuesday
of the month between 10:00 am and 4:00 p.m. at the courthouse.
Lenders may seek a deficiency judgment in Georgia.
More information on Georgia foreclosure laws.
Hawaii Foreclosure Law Summary
Quick Facts
- Judicial Foreclosure Available:
Yes
- Non-Judicial Foreclosure Available:
Yes
- Primary Security Instruments:
Deed of Trust, Mortgage
- Timeline: Typically 60 days
- Right of Redemption: None
- Deficiency Judgments Allowed:
Yes
In Hawaii, lenders may foreclose on deeds
of trusts or mortgages in default using either a judicial or non-judicial
foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure,
which involves filing a lawsuit to obtain a court order to foreclose,
is used when no power of sale is present in the mortgage or deed of
trust. Generally, after the court declares a foreclosure, the property
will be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure
is used when a power of sale clause exists in a mortgage or deed of
trust. A "power of sale" clause is the clause in a deed of trust or
mortgage, in which the borrower pre-authorizes the sale of property
to pay off the balance on a loan in the event of the their default.
In deeds of trust or mortgages where a power of sale exists, the power
given to the lender to sell the property may be executed by the lender
or their representative, typically referred to as the trustee. Regulations
for this type of foreclosure process are outlined below in the "Power
of Sale Foreclosure Guidelines".
- Power of Sale
Foreclosure Guidelines
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- If the deed of trust or mortgage contains a
power of sale clause and specifies the time, place and terms of sale,
then the specified procedure must be followed. Otherwise, the non-judicial
power of sale foreclosure is carried out as follows:
- The notice of intent to foreclose must be
published once a week for three (3) successive weeks, the last publication
to be not less than fourteen (14) days before the day of sale, in
a newspaper having a general circulation in the county in which
the mortgaged property is located.
Copies of the notice must be mailed or delivered to the mortgagor,
the borrower, any prior or junior creditors, the state director
of taxation and any other person entitled to receive notice. Additionally,
the notice must be posted on the premises not less than twenty-one
(21) days before the day of sale.
Said notice must state: 1) The date, time, and place of the public
sale; 2) The dates and times of the two (2) open houses of the mortgaged
property, or if there will not to be any open houses, the public
notice shall so state; 3) The unpaid balance of the moneys owed
to the mortgagee under the mortgage agreement; 4) A description
of the mortgaged property, including the address or description
of the location of the mortgaged property, and the tax map key number
of the mortgaged property; 5) The name of the mortgagor and the
borrower; 6) the name of the lender; 7) The name of any prior or
junior creditors having a recorded lien on the mortgaged property
before the recordation of the notice of default; 8) The name, the
address in the State, and the telephone number in the State of the
person in the State conducting the public sale; and 9) The terms
and conditions of the public sale.
Additional wording, as required by the State of Hawaii, may be found
here.
- Up until three (3) days before the sale,
the borrower may cure the default and stop the sale by paying the
lien debt, costs and reasonable attorney's fees, unless otherwise
agreed to between the lender and the borrower.
- The sale, which may be held no earlier than
fourteen (14) days after the last ad is published, is to be made
at auction to the highest bidder.
- Any sale, in which notice
has been given, may be postponed from time to time by public announcement
made by the lender or their representative.
There are no rights of redemption in
Hawaii.
More information on Hawaii foreclosure laws
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