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Foreclosure Basics

First and foremost, foreclosure is a process. It's the process your lender must go through to enforce its right to force the sale of your home to collect an outstanding debt.

How did your lender get this right? You gave it to your lender when you signed the mortgage or deed of trust for your home loan. A mortgage or deed of trust was one of the many documents you signed when you originally took out your loan to purchase your home. In this document, you gave to your lender a security interest in your house to guarantee repayment of your mortgage. Once you stop paying your mortgage, your house can be sold without your consent so that your lender can recoup the amount they loaned to you.

How do Foreclosures work?

Foreclosures typically take one of two major paths: judicial (in court) or nonjudicial (out of court). If your home loan is secured by a mortgage, chances are good you'll have a judicial foreclosure. If your loan is secured by a deed of trust, you'll probably have a nonjudicial foreclosure. The real estate industry in a particular state—and the laws that industry’s lobbyists have pushed through the state legislature—pretty much determines whether mortgages or deeds of trust are used there.

A judicial foreclosure often takes longer—a lot longer—than a nonjudicial one. A judicial foreclosure also gives you a ready-made opportunity to oppose the foreclosure and assures that your home won't be lost to foreclosure unless a judge signs off on it.

How much time will you have before your house is sold?

If you know that your house can be sold at auction in as few as 30 days after you first get notice of the foreclosure, you'll need to act differently if you can count on three or four months in which to negotiate with your lender or try other strategies.

Fortunately, even in short-notice states, you can pretty much count on learning about the intended sale in time to use one of the strategies explained in other articles on this website.

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