When talking about defenses in foreclosure cases, the term "regularities of sale" often appears. When a court looks at the regularities of the foreclosure sale process, it conducts an examination to determine whether proper procedures were followed or whether there was some defect in the sale. Whether the court does this in all or most cases, or only under certain circumstances, depends on state law and foreclosure procedure.
For example, in California most foreclosures are nonjudicial (meaning they happen outside of court). A trustee conducts the sale. The homeowner can attack the “regularity” of the foreclosure if the trustee does not comply with legally mandated foreclosure sale procedures. However, in order to do this, the homeowner must file a lawsuit to challenge the nonjudicial foreclosure, and must establish in the lawsuit that the procedures were not fair or regular.
In Georgia, most foreclosures are nonjudicial but the court must confirm the sale if the lender wants to pursue a deficiency judgment against the homeowner. As part of the hearing to confirm the foreclosure sale, the court will routinely evaluate the regularity of the sale. At the hearing to confirm the sale, the court will review whether or not the lender followed proper foreclosure procedures by looking at things such as:
- the notices that the lender sent to the borrower
- the foreclosure sale advertisement that the lender published, and
- whether there was any fraud or other irregularities in the sale.
If the foreclosure sale was not proper, the court may order a resale of the property.
To learn more about defenses to foreclosure, see Fighting Foreclosure in Court.