What Happens to Liens and Second Mortgages in Foreclosure?

Often, homeowners have more than one mortgage on their property, as well as judgment liens in some cases. For instance, suppose you took out a second mortgage, along with a first mortgage, to cover the purchase price of your home. Then, a credit card company sued you and got a judgment lien. You then fell behind in your mortgage payments and the lender started a foreclosure.

What happens to your second mortgage and the judgment lien in the foreclosure? Read on to find out.

What are Mortgages and Judgment Liens?

Here are the basics on mortgages, second mortgages, and judgment liens.

Promissory Notes and Mortgages

When you take out a loan to buy a home, you're usually required to sign two documents: a promissory note and a mortgage (or deed of trust).

Second and Third Mortgages

Homeowners sometimes obtain a second mortgage when purchasing their property or, in some situations, later decide to take out a home equity loan or home equity line of credit. Second-mortgage lenders (and third-mortgage lenders), just like first-mortgage lenders, will often require that you sign a promissory note and a contract that pledges the property as collateral for the loan.

Judgment Liens

You might have other liens on your property as well, like a judgment lien. If you're sued in court for a sum of money and lose the case, the prevailing party will be granted a judgment. That party may then file a judgment lien, which is a lien that attaches to your real estate.

Lien Priority

Generally, the priority of a lien is determined by its recording date, although some liens, like property tax liens, have automatic superiority over essentially all prior liens.

First mortgages are, as the name suggests, typically recorded first and are in first lien position. Second mortgages, which are often recorded next, are usually in second position. Judgment liens are frequently junior to a first mortgage and possibly a second mortgage, as well as perhaps other judgment liens previously filed by other creditors.

Priority Determines How Foreclosure Funds Are Distributed

The priority of liens establishes who gets paid first following a foreclosure sale. “Senior” liens are paid before “junior” liens (those with lower priority). After the first-mortgage lender forecloses, any surplus funds from the foreclosure sale after the foreclosing lender’s debt has been paid off will be distributed to creditors holding junior liens, like a second-mortgage lender or judgment creditor (the person who sued you and won the judgment).

Example. Say the total debt owed on the first mortgage is $200,000. There is a second mortgage for $40,000 and a $10,000 judgment lien. The home then sells for $250,000 at the foreclosure sale. The first-mortgage lender will be paid in full ($200,000). The second-mortgage lender will be paid in full as well ($40,000). The judgment creditor will be paid whatever is left ($10,000). In this case, all creditors were paid in full and zero debt remains.

But if the property had sold for only $200,000 at the foreclosure sale, the total amount would go to the foreclosing lender. The second-mortgage lender and the judgment creditor would receive nothing and their liens would be wiped out in the foreclosure. But that doesn't mean that the debt disappears.

Foreclosure Eliminates Liens, Not Debt

When a first-mortgage lender forecloses, people often mistakenly think this means the second mortgage and any judgment liens have been satisfied as well—even if the foreclosure sale didn't bring in enough funds to pay off the debts. They're then surprised when the second-mortgage holder or judgment creditor seeks to have the outstanding balance on their debt paid.

Following a first-mortgage foreclosure, all junior liens (including a second mortgage and any junior judgment liens) are extinguished and the liens are removed from the property title. But the second-mortgage debt and creditor’s judgment remain, even though they're no longer attached to the foreclosed property. While the security for the debt has been eliminated, the obligations remain in place.

The Second-Mortgage Lender Might Sue You

If the second-mortgage lender doesn't receive enough money from the first-mortgage lender’s foreclosure to satisfy the debt, and assuming you've stopped making the payments, it might sue you in court for the difference, as long as state law doesn't prohibit this action.

Remember the promissory note that you signed when you took out the second mortgage? That was your promise to pay. So, the second-mortgage lender can sue you on that promissory note. Because second-mortgage lenders frequently receive little or nothing from a foreclosure sale, it's not surprising that they often take this route to attempt to get paid.

Judgment Liens Can Attach to Other Property

A judgment creditor will also lose its security interest in the property following a first-mortgage lender's foreclosure.

However, while the judgment creditor's lien might have been eliminated from that particular piece of real estate, it will still attach to any other real estate that you own now or in the future. Plus, the judgment creditor can try to collect the debt in other ways, like by freezing your bank accounts or garnishing your wages.

Getting Help

If you're facing a foreclosure and have multiple liens on your property, consider talking to a foreclosure attorney to find out what will happen to those liens and to learn about various options in your particular circumstances.