Foreclosure law is governed by state foreclosure laws in the US. Many of these laws are procedural and if followed properly can help a person avoid foreclosure. Educating yourself about foreclosure law is the first step toward making good legal decisions, and a foreclosure attorney might be your best educational resource.
A foreclosure attorney can explain the procedures and requirements associated with foreclosure law and help you determine the best course of action for you. Foreclosure law is changing, so be careful to weigh all options before making a final decision about whether or not going through with foreclosure is the right move for your family. Foreclosure is never an easy option; losing a home and finding an affordable replacement is difficult enough without the burden of trying to decipher rapidly- changing foreclosure laws.
In strict foreclosure, the judgment will set a law day after which you will lose your rights in the property. In foreclosure by-sale, the court will set a sale date after which you will lose your rights to the property. The first step under most states foreclosure laws is for a lender to file a lawsuit and what is known as a 'lis pendens'. Deficiency judgments are tempered in many jurisdictions by "fair value" legislation. This requires the deficiency to be calculated using the difference between the mortgage debt and the fair value of the real estate.
The advantage of judicial foreclosure for the lender is that they can receive a deficiency judgment against the borrower for the difference between the amount owed (including penalties, fees and costs), and the amount received at auction. Most often there will then be a hearing where the judge will decide whether to force them to produce the note or not.
Should you win, the lender can't foreclose until they produce the note (which could prove very difficult for them because mortgages are often sold and resold). A deficiency judgment is a judgment against the borrower for the remaining debt on the foreclosed property. The creditor may enforce the judgment through the courts and use any means available under state law to collect on the judgment.
There are non-bankruptcy options available as well in most states, including short sales, forbearance agreements, refinancing, and other workout choices. Even if there is a foreclosure auction sale scheduled, it may not be too late to save your home and stop the foreclosure process.
The most common processes under foreclosure law are court proceedings (judicial foreclosure) or grants of power to the mortgagee to sell the property (power of sale foreclosure). Many states regulate acceleration clauses and allow late payments to avoid foreclosure. When a property is sold pursuant to a judicial foreclosure, then for a limited time the borrower has a legal right to repurchase the property after the foreclosure sale, even if the new owner doesn't want to sell it.
The repurchase price is not determined by the amount of the loan, but is instead determined by the price paid at the foreclosure sale. Seller financing is a powerful tool to remedy real estate sales that otherwise would never get done.
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If you need more foreclosure help then quickly head over to Foreclosure Help and Advice where you will find helpful foreclosure tips, advice and resources including information on foreclosure plans, negotiating and more Foreclosure Information.
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