Foreclosure happens when you fall behind on your house payments and your lender uses state procedures to sell your house. Foreclosure works differently in different states. In some states, the lender has to file a lawsuit to foreclose (judicial foreclosure), while in others, it can foreclose without going to court (nonjudicial foreclosure).
Here's a rundown of the basic procedures for judicial foreclosure. To learn about nonjudicial foreclosure, see Nonjudicial Foreclosures.
In a judicial foreclosure, the lender must go to court to get the foreclosure started. A judicial foreclosure typically takes several months or more, giving you time to look for another place to live, and to save some money for the future. Another advantage is that you can raise in court any legal defenses you may have to the foreclosure (without having to file your own lawsuit).
States Using Judicial Foreclosure
With some exceptions, foreclosures go through court in these states:
New Mexico (sometimes)
Oklahoma (homeowner may request)
|South Dakota (if the homeowner requests it)|
Procedures in a Judicial Foreclosure
Here's how a typical judicial foreclosure might proceed.
You get behind in your mortgage payments. A mortgage holder can begin foreclosure procedures if you miss just one payment, but usually will wait longer -- much longer in many states.
The lender sends a notice of intent to begin foreclosure. In many states, the lender sends a notice of intent to begin foreclosure proceedings. The notice informs you that the proceedings can be avoided if you make up the missed payments, plus costs and interest.
The lender files a lawsuit. If you don't make up the missed payments, the lender will then go to court and file a lawsuit.
You have a chance to respond. The summons and complaint give you a period of time within which you must respond if you choose to contest or argue the lawsuit (usually between 15 and 30 days). Whether or not you file a response is up to you. Either way, your lender will have the burden of proving to the judge that the foreclosure is justified under the terms of the mortgage.
- If you don't respond, the chances are excellent that the foreclosure will go through. The court will issue a default judgment that authorizes the lender to sell your home.
- If you do respond, you'll have the opportunity to tell a judge just why you think you have a legal right to keep your house and that foreclosure is not warranted. (To learn more about foreclosure defenses, read Nolo's article Defenses to Foreclosure.) The better your defenses, the longer the process will drag out in court. Even if you win, however, it may be a temporary victory if the lender can fix whatever problem caused it to lose this time.
The lender sends a notice of intent to sell. Once the judge issues a judgment, the lender typically will send you a notice of intent to sell the property. At this point, in many states you can avoid the foreclosure sale if somehow you can "redeem" the mortgage (pay it off in full, as well as the foreclosure costs and attorney's fees).
The auction is held. If no one buys your home at the auction, ownership goes to the lender. Up to this point, the entire process, from the first notice to the auction, typically takes three and a half months -- more, if you file a response to the summons and complaint.
You are allowed to stay or get evicted. Even when you lose ownership of your home, most state laws don't require you to move out right away. The lender may just let the house sit, waiting for the market to improve. You can remain in the home payment-free until you receive an official, written eviction notice.
To learn more, visit Nolo's Judicial v. Nonjudicial Foreclosure topic page.