Washington State Foreclosure Laws

Washington also uses in-court and out of court foreclosure proceedings. Judicial or in-court foreclosure is used when the language in the mortgage or deed of trust does not contain a power of sale clause. Should this be the case, the law suit must be filed in order to get a court order to proceed with foreclosure. After this has been obtained, the lender will proceed with, and auction the home.

When a power of sale clause does exist in the mortgage or deed of trust, then non-judicial or out of court foreclosure is followed. This is almost always the case.

To proceed with an out of court foreclosure in Washington, the lender must start by sending a notice of sale letter to the home owner by both regular mail and by certified mail, return receipt requested. This notice of sale must be sent to the home owners last known address.

If the home owner has an attorney of record, it must be sent to that person as well. The time frame required for this notice of sale to be sent is a minimum of thirty days prior to the sale.

Other requirements to move ahead with an out of court foreclosure in Washington include that the sheriff must publish or advertise the notice of sale once a week for four weeks leading up to the sale date. This advertisement can be placed in any newspaper that has circulation in the county where the property is located. Also the sheriff must post this notice of sale on the court house door in the county where the property is located.

The sheriff must post this notice on at least one other public place as well. These public postings must also take place four weeks before the sale date.

This notice of sale must include the time and place of the auction, the names on the deed, the date of the deed, recording info, a description of the property and the terms of the sale.

In Washington the home owner can stop the foreclosure proceedings by paying the past due payments, plus other expenses the lender has incurred in the process. Those costs will include, but in process. Those costs will include, but are not restricted to the lawyer’s fees involved. The home owner can halt the process this way as late as eleven days before the sale date.

In Washington the auction of the property is always held between 9:00 am and 4 pm on Friday at the courthouse door.

If the Friday that is closest to the date chosen by the lender happens to fall on a legal holiday, the sale will be held on the next business day. In this state, the auction cannot be held any sooner than the 190 days following the date the notice of default was issued by the lender.

The obtaining of the property by the highest bidder, in Washington, is confirmed by the receipt of a certificate of sale.

In Washington, the sheriff can postpone the sale for a maximum of 1 week. If the sheriff chooses to do so, then the notices must be posted as they were prior to the original sale date.

Home owners have an eight month right of redemption in this state. This means that should the person who lost the home at auction be able to come up with the amount of money of the winning bid at auction, plus interest, then they can again enjoy ownership of the property.

This doesn’t happen often, but it does mean that the new owner or the person who placed the winning bid must worry for eight months about whether or not the home is really theirs. If it were me, I would certainly refrain from putting anymore money into the house. I would also consider not moving into the house until the 8 months following the sale have expired.

If the lender chooses to pursue an out of court foreclosure in Washington, it forgoes any chance it might have had to pursue the borrower for a deficiency judgment. That means they can’t seek any additional money not generated by the sale of the home.

If the lender chooses to follow an in court foreclosure, they can follow that decision or out come up with and additional pursuit of the borrower for any funds they feel they are due above what is gained through a sale. The only exception to this rule is that if the property is proven to have been abandoned for six months before the decree of foreclosure was issued, by the court. In this situation, further pursuit of the borrower for money is prohibited.

Foreclosure Laws in South Dakota

Many states in the United States follow in court and out of court proceedings, South Dakota is one of them. As in all states where both forms of foreclosures are used, the vast majority of foreclosures are out of court processes. This is done because it saves the bank time and money. The determining factor as to which method of foreclosure is followed, is whether or not the mortgage or deed of trust contains a power of sale clause. This power of sale clause allows for out of court proceedings and is included in most such documents, in the absence of such language in a mortgage or deed of trust, in court foreclosures must be used.

In court proceedings begin with the bank filing a lawsuit to foreclose. It takes a while for a judge to declare a foreclosure depending on how full the docket of lawsuits are. It could be a very long time to get to this point. Once a declaration of foreclosure has been obtained from the court, the home will be scheduled for an auction, which is most commonly referred to as a trustee’s sale. The highest bidder at the sale is awarded the property and the entities most likely to receive the proceeds from the sale are first the IRS (if there is a federal tax lien on the property) and the first mortgage holder.

The actual sale of the property follows the same process in both in court and out of court foreclosures. The only difference is the time and expense necessary to file the law suit prior to moving to a sale date.

In the unusual event that the power of sale clause in the mortgage or deed of trust states a specific time, place, including terms of sale, then those instreuctions must be followed. However, most power of sale clauses are not so specific. So in most cases, the following procedure will be followed.

A notice of foreclosure will be advertised once a week for four weeks, in a local paper, that has circulation in the county where the home is located. Additionally, twenty one days before the scheduled sale date, the bank has to give a written notice of the foreclosure sale to the homeowner. Additionally, the bank is further required to give the same information to any other lien holders connected to the property.

This notice of sale needs to include the names of the home owner and the bank executing the foreclosure. It also needs to explain the mortgage date, the amount due, and contain a description of the property. It of course must also state the date, time, and place of the scheduled sale.

The sale is conducted by the sheriff of the county where the home is located. It may be run by the deputy as well. The sale will always be held between 9:00 am and 5:00 pm. The home will be awarded to the highest bidder participating in the sheriff’s sale. In South Dakota, the winning bidder will receive a certificate of sale.

Postponement of such a sale can occur at the banks discression. If the choose to execute such a postponement, they must advertise the new sale date in the same paper as the notice of sale was originally placed. Continuing the publication of the notice of the postponement date until the new sale date is reached.

Deficiency judgments are allowed in South Dakota. This means that if the bank is not satisfied with the proceeds from the sale, they can continue ton pursue the former home owner for the difference between the amount of the highest bid at the sake, and how much was owed to them on the loan. However, most lending institutions understand that a person losing their home at auction, almost always have nothing else of value for them to try to take. Consequently, deficiency judgments are rarely sought by the bank. They know it would be a waste of time and resources to try to pull water from an empty well.

Foreclosure Solutions Must Come From New Foreclosure Laws

Foreclosure Laws in Alabama

The state of Alabama allows for both judicial or in-court and non-judicial or out of court foreclosures. As with all states where both choices are available to the lender, the determining factor as to which process will be followed, is the power of sale clause. If the mortgage or deed of trust contains a power of sale clause, this allows the bank to skip over the step of obtaining the courts permission to foreclose. This of course saves the bank both time and money. Since it is in the banks best interest to spend less and move more quickly to the sale of the home, out of court foreclosure will be used whenever it is allowed.

The only situation in which judicial foreclosure would be used is when the bank cannot foreclose any other way. When no power of sale clause exists in the mortgage or deed of trust, then the bank must use the court system to move ahead towards the sale of the house.

To foreclose through the court system, the bank must file a law suit against the homeowner who is having trouble keeping current on their house payments. The object of this lawsuit is to have the court officially declare the homeowner in default and obtain a court order to foreclose. Once this has been obtained by the bank’s lawyer, the steps of moving toward the sale of the house remains the same for both in court and out of court processes.

Sometimes the power of sale clause is so detailed in its instructions as to how the sale must be carried out, that it will state how, when and where the foreclosure sale will occur. When this is the case, then these instructions must be followed. Most power of sale clauses are not so complete in their instructions and the usual method of foreclosure method of foreclosure will be followed in this state will be followed from this point on.

The notice of sale announcing the upcoming auction of the home must be run or published in a paper with circulation in the county where the home is located. The last of these ads announcing the foreclosure sale has to be run no less than thirty days prior to the scheduled sale date. If the property in foreclosure is located in more than one county, the ad or notice of sale must be run in all counties where it is located. This notice of sale must include the date, and time and location of the sale. The sale is almost always held in front of the main doors of the county courthouse in the county in which the home is located. The notice of sale must also describe the property and the terms of the sale.

The home will be offered to the person making the highest bid at the auction the winning bidder must be prepared to pay cash for the total amount of their offered bid price at the conclusion of the sale.

In regards to the publication of the notice of sale in a local paper, if there is no paper with general circulation in the county where the home is located, the banks lawyer must run the notice of sale in a paper with circulation in the nearest adjoining county. This ad must be run for four consecutive weeks.

The home owner has the right to stop the foreclosure by paying off the full amount of the debt up until the day before the scheduled foreclosure sale. Foreclosures move very quickly in this state with the average time frame being between 47 to 79 days. The right of redemption period is three hundred and sixty five days. This means that if the former homeowner wishes to regain ownership of the property they can do that for one year. The cost of this option is what the house sold for at auction.

How Do I Find Out About Home Foreclosure Laws?

Many first time homeowners or experienced homeowners are not aware of the fast track laws entitling their mortgage companies to exercise repossession in the event of non-payment of a mortgage.

These types of transactional methods are called non-judicial foreclosure actions. To that end, many homeowners will not be served with a lawsuit, rather they will be served with what is called a non-judicial foreclosure procedure with a Notice of Non-Judicial Foreclosure for Non-payment. This leaves many homeowners confused and sometimes uninformed with respect to this foreclosure remedy.

You will have to check with your state with respect to the timeline needed for each homeowner to respond to a Notice of Default, the document that marks the beginning stages of a foreclosure. At the point of a Notice of Default, there is a chance to restore or cure your mortgage status. Paying arrears or responding within a certain amount of time, is possible.

In many states, a creditor or your bank, will usually elect not to pursue legal complaint under what is called an Election of Remedies Law (also called 1A). Rather, it will opt for a civil proceeding outside of court, under the mortgage contract, wherein a lender can exercise a right to repossess the real property with transactional remedies, which is a speedy course of action. The bank or mortgage provider then has an auctioneer company auction your home to the highest bidder after a publication of the default and event.

All homeowners need to be aware of their individual state’s laws which provides remedies for a non-judicial foreclosure action which is also called foreclosure.