Lien priority determines the order in which creditors get paid following a foreclosure. If a lien has priority over another lien, it gets paid before the other lien. Read on to learn more about different types of liens, how lien priority is determined, and how priority affects what happens to liens in a foreclosure.
Frequently, there is more than one lien on a home. The homeowner chooses to place some liens, such as mortgages, on the property. Other liens, such as judgment liens, HOA liens, and mechanic’s liens are involuntary.
When you take out a loan to buy a home, you sign two documents: a promissory note and a mortgage (or a deed of trust in some states). The note is your personal promise to repay the amount that you borrowed. The mortgage gives the lender a lien on your home. The mortgage company records the mortgage in the county records. This is known as the "first mortgage" or "first deed of trust." (To learn more about mortgage terminology, see our Glossary of Foreclosure Terms.)
Sometimes, a borrower needs two mortgage loans to purchase a property. For example, an 80/20 loan is a pair of loans where the first loan covers 80% of the purchase price and the second covers the remaining 20%. The mortgage securing the smaller amount will be recorded after the larger mortgage, and is known as a “second mortgage.” In some cases, the homeowner may also take out another mortgage or a home equity line of credit (HELOC) later on down the line. That mortgage would then be called the “third mortgage.”
If you get sued in court for a sum of money and lose the case, the prevailing party will get a judgment. That party may then file a judgment lien on your property. (To learn more about judgment liens, see Nolo’s article What is a Judgment Lien?)
Almost all HOAs and COAs have the power to place a lien on your property if you become delinquent in paying the monthly fees or any special assessments.
A mechanic’s lien is recorded in the county recorder’s office by an unpaid contractor, subcontractor, laborer, or material provider. (Learn more about different types of property liens.)
The general rule in property law is that liens have priority in the order that they are filed in the county records office. This is known as the first in time, first in right rule. Based on this principle, a recorded interest has priority over later recorded interests. For example, a first mortgage or second mortgage will typically have priority over a judgment lien since the judgment creditor usually records its lien after the mortgage company has recorded its mortgage.
As with most rules, there are exceptions to the first in time, first in right rule. Certain liens such as property tax liens, special assessment taxes, some HOA and COA assessment liens, and mechanic’s liens can have priority over previously recorded liens, though this depends on state law.
The priority of liens establishes who gets paid first following a foreclosure and often determines whether or not a lien holder will get paid at all. The first lien has a higher priority than other liens and gets first crack at the proceeds of sale. If there are any sales proceeds left after the first lien is paid in full, they go to the second lien (such as a second mortgage lender or judgment creditor) until that lien is paid off, and so on. A lien with a low priority may get nothing from a foreclosure sale.
Example. Say you owe $300,000 on your first mortgage. You also owe $30,000 on a second mortgage that you took out a few months after the first mortgage. In addition, there is a $5,000 judgment lien on your house from the time that your neighbor slipped off your porch and sued you. (Your neighbor recorded the judgment lien after the second mortgage was recorded.) The home sells for $320,000 at a foreclosure sale. The first mortgage lender will get paid off in full ($300,000), which leaves $20,000 to distribute. The second mortgage lender will get that $20,000. The judgment creditor gets nothing and his lien is eliminated in the foreclosure. However, this does not mean that you’re off the hook for the remaining debt.
Depending on the laws in the state where you live, the second mortgage lender may be able to sue you to recover the $10,000 that it is still owed, which is called a deficiency. (Read more about deficiencies and find out whether lenders can sue you for a deficiency in your state, see Nolo’s Deficiency Judgments area.)
Also, while your neighbor won’t receive any money from the foreclosure, he could still try to collect the judgment debt from you in other ways such as by freezing your bank accounts, garnishing your wages, or placing liens on other property you own. (Learn more about how creditors collect on debts in Nolo’s How Creditors Collect Debts area.)