Residential Foreclosures

  1. INTRODUCTION

    A foreclosure is a legal procedure whereby the property that is pledged as security in the mortgage document or deed of trust is sold to satisfy the debt. The foreclosure procedure brings the rights of the parties and all junior lienholders to a conclusion and passes title in the subject property to either the person holding the mortgage document or deed of trust or to a third party who purchases the realty at a foreclosure sale. Property sold by foreclosure is free of the mortgage and all junior liens.

  2. METHODS OF FORECLOSURE

    1. Judicial Foreclosure: Pledged property is sold by court order after the mortgagee has given sufficient public notice. Upon a borrower's default, the lender may accelerate the due date of all remaining monthly payments. Then the lender's attorney files a suit to foreclose the lien.

    2. Nonjudicial Foreclosure: States such as Maryland allow nonjudicial foreclosure procedures to be used when a power of sale clause is contained in the security instrument.

    3. Strict Foreclosure: After appropriate notice has been given to the delinquent borrower and the proper papers have been prepared and filed, the court establishes a specific time period during which the balance of the defaulted debt must be paid in full. If this is not done, the court usually awards full legal title to the lender. This method is a minority view today.

  3. DEED IN LIEU OF FORECLOSURE

    An alternative to foreclosure would be for the lender to accept, or "buy" a deed in lieu of foreclosure from the borrower. This is sometimes known as a "friendly foreclosure" because it is by agreement rather than by civil action. The major disadvantage to this manner of default settlement is that the mortgagee takes the real estate subject to all junior liens; foreclosure eliminates all such liens.

  4. RIGHT OF REDEMPTION

    This concept provides that if, during the course of a foreclosure proceeding but before the foreclosure sale, the borrower or any other person who has an interest in the real estate (such as another creditor) pays the lender the amount currently due, plus costs, the debt will be reinstated as before.

    In most states, equity of redemption is allowed but the statutory periods may be different. A defaulted borrower has to make redemption by paying the necessary funds to the mortgagee as provided by law, usually before the foreclosure sale has been completed----that is, before the court officer delivers the sale deed to the purchaser. Sometimes, a state permits redemption even after the auction sale. Holders of subordinate interests in real property may record a request for a notice of sale, requiring holders of superior interests in property to give notice of an impending foreclosure sale.

  5. DEEDS OF TRUST

    Under many deeds of trust forms, the trustee is usually given a power of sale in case of default. Here there is no court action because the trustee himself gives public notice of the sale (this can be on a door of the courthouse and/or by an advertisement in the paper). He then holds a trustee sale and the property is sold at public auction.

    A trustee sale is fast and can usually be accomplished in 80 to 120 days because trustees do not have to wait for court action. The money the trustee obtains from the sale wouldthen be applied to the principal of the mortgage debt plus the accrued interest and legal costs incidental to the sale. Any excess over and above what is due any lienholder is returned to the defaulted borrower.

    It is important to note that a foreclosure sale under a deed of trust in default will cancel any tenancy of the property, such as a lease that began after the deed of trust was executed and recorded.

  6. MARKETING FORECLOSED PROPERTIES

    1. Before property is foreclosed be aware of the sellers right of redemption.

    2. Find out who the foreclosing lender is and attempt to work with them. A lender always prefers a sale instead of a foreclosure. Often they may agree to give you more time to sell the property.

    3. Sales of HUD and VA foreclosed properties:

      All FHA guaranteed loans that have been foreclosed are paid off by HUD (Department of Housing and Urban Development) to the lenders. This is why the borrower pays the mortgage insurance premium. HUD and VA then sell the properties through various methods, usually by use of licensed real estate brokers. Although HUD sometimes advertises in the newspaper, it usually simply lists its properties on a register which is published to those brokers who sign up and get registered to receive the lists.

      The key to understanding the sale of HUD properties for agents is that there is never any "cooperating broker" with HUD properties. HUD has the "listing" and therefore any agent that gets the sale is always going to be the "selling broker".

      The primary features to sell on HUD/VA properties are price and terms. One of the last things to do is to actually show the property which many times is not in the best of shape. This market is usually in the lower price range and buyers are in the lower income bracket. However, this market is also very ripe for the investor market and for buyers who are always looking for "fixer uppers".

      Many times HUD will offer special terms as an incentive to sell their properties and the VA will sometimes even finance the property themselves.
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