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tax liens
Foreclosure is the legal proceeding in which a bank or other secured
creditor sells or repossesses a parcel of real property (immovable property)
due to the owner's failure to comply with an agreement between the lender
and borrower called a "mortgage" or "deed of trust". Commonly, the violation
of the mortgage is a default in payment of a promissory note, secured by
a lien on the property. When the process is complete, it is typically said
that "the lender has foreclosed its mortgage or lien."
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Types of Foreclosure
The mortgage holder can usually initiate foreclosure anytime after
a default on the mortgage. Within the United States, there exist several
types of foreclosure. Two are widely used, with the rest being possibilities
only in a few states.
The most important type of foreclosure is foreclosure by judicial sale.
This is available in every state and is the required method in many. It
involves the sale of the mortgaged property done under the supervision
of a court, with the proceeds going first to satisfy the mortgage, and
then to satisfy other lien holders, and finally to the mortgagor. Because
it is a legal action, all the proper parties must be notified of the foreclosure,
and there will be both pleadings and some sort of judicial decision, usually
after a short trial.
The second type of foreclosure, foreclosure by power of sale, involves
the sale of the property by the mortgage holder not through the supervision
of a court. Where it is available, foreclosure by power of sale is generally
a more expedient way of foreclosing on a property than foreclosure by judicial
sale. The majority of states allow this method of foreclosure. Again, proceeds
from the sale go first to the mortgage holder, then to other lien holders,
and finally to the mortgagor.
Other types of foreclosure are only available in limited places and
are therefore considered minor methods of foreclosure. Strict foreclosure
is one example. Under strict foreclosure, when a mortgagor defaults, a
court orders the mortgagor to pay the mortgage within a certain period
of time. If the mortgagor fails, the mortgage holder automatically gains
title, with no obligation to sell the property. Strict foreclosure was
the original method of foreclosure, but today it is only available in a
few states, such as Connecticut, New Hampshire and Vermont.
Acceleration
The concept of acceleration is used to determine the amount owed under
foreclosure. Acceleration allows the mortgage holder the right when the
mortgagor defaults on the mortgage to declare the entire debt due and payable.
In other words, if a mortgage is taken out on property for $10,000 with
monthly payments required, and the mortgagor fails to make the monthly
payments, the mortgage holder can demand the mortgagor make good on the
entire $10,000 of the mortgage.
Virtually all mortgages today have acceleration clauses. However, they
are not imposed by statute, so if a mortgage does not have an acceleration
clause, the mortgage holder has no choice but to either wait to foreclose
until all of the payments come due or convince a court to divide up parts
of the property and sell them in order to pay the installment that is due.
Alternatively, the court may order the property sold subject to the mortgage,
with the proceeds from the sale going to the payments owed the mortgage
holder.
Foreclosure by Judicial Sale
Foreclosure by judicial sale requires the mortgage holder to proceed
carefully in order to ensure that all affected parties are included in
the court case, so the purchaser of the foreclosed property receives valid
title to the property.
The process
The process of foreclosure is lengthy and the timeframes for when the
lending institution begins the process vary from state to state. Other
factors, such as the increasing availability of personal loans for owners
facing foreclosure, present homeowners with foreclosure avoidance options.
Websites which connect individual borrowers and homeowners to individual
lenders are increasingly used as mechanisms to bypass banks while meeting
payment obligations for mortgage providers. The increase in the number
of foreclosures in the United States has led to more loan listings which
are designed to forestall or prevent foreclosure.
In the United States, there are two types of foreclosure in most common
law states. Using a "deed in lieu of foreclosure," or "strict foreclosure",
the bank claims the title and possession of the property back in full satisfaction
of a debt, usually on contract. In the proceeding simply known as foreclosure
(or, perhaps, distinguished as "judicial foreclosure"), the property is
exposed to auction by the county sheriff or some other officer of the court.
Many states require this latter sort of proceeding in some or all cases
of foreclosure, in order to protect any equity the debtor may have in the
property, in case the value of the debt being foreclosed on is substantially
less than the market value of the immovable property (this also discourages
strategic foreclosure). In this foreclosure, the sheriff then issues a
deed to the winning bidder at auction. Banks and other institutional lenders
typically bid in the amount of the owed debt at the sale, and if no other
buyers step forward the lender receives title to the immovable property
in return.
Other states have adopted non-judicial foreclosure procedures, in which
the mortgagee, or more commonly the mortgagee's attorney or designated
agent, gives the debtor a notice of default and the mortgagee's intent
to sell the immovable property in a form prescribed by state statute. This
type of foreclosure is commonly referred to as "statutory" or "non-judicial"
foreclosure, as opposed to "judicial". With this "power-of-sale" type of
foreclosure, if the debtor fails to cure the default, or use other lawful
means (such as filing for bankruptcy which provides a temporary automatic
stay to the foreclosure proceeding) to stop the sale, the mortgagee or
its representative will conduct a public auction in a similar manner as
the sheriff's auction described above. The highest bidder at the auction
becomes the owner of the immovable property free and clear of any interest
of the former owner but the property may be encumbered by any liens superior
to the mortgage being foreclosed (e.g. a senior mortgage, unpaid property
taxes etc). Further legal action, such as an eviction may be necessary
to obtain possession of the premises.
"Strict foreclosure" is an equitable right available in some states.
The strict foreclosure period arises after the foreclosure sale has taken
place and is available to the foreclosure sale purchaser. The foreclosure
sale purchaser must petition a court for a decree that will cut off any
junior lienholder's rights to redeem the senior debt. If the junior lienholder
fails to do so within the judicially established time frame, his lien is
cancelled and the purchaser's title is cleared. This effect is the same
as the strict foreclosure that occurred at common law in England's courts
of equity as a response to the development of the equity of redemption.
In most jurisdictions, it is customary for the foreclosing lender to
obtain a title search of the immovable property and to notify all other
persons who may have liens on the property, whether by judgment, by contract,
or by statute or other law, so that they may appear and assert their interest
in the foreclosure litigation. In all US jurisdictions a lender who conducts
a foreclosure sale of immovable property which is the subject of a federal
tax lien must give 25 days' notice of the sale to the Internal Revenue
Service: failure to give notice to the IRS will result in the lien remaining
attached to the immovable property after the sale. Therefore, it is imperative
that the lender obtain a search of the local Federal Tax Liens so that
if the persons or companies involved in the foreclosure have a federal
tax lien filed against them, the proper notice to the IRS will be given.
A detailed explanation by the IRS of the Federal Tax Lien process can be
found here.
Foreclosure Auction
When a bank auctions a repossessed property, they will typically set
the starting price as the remaining balance on the mortgage loan. This
is not usually the case in the state of Alabama.
In the case where the remaining mortgage balance is higher than the
actual home value, known as an Upside-down mortgage, the bank is unlikely
to attract auction bids at this price level, thus forcing the bank to resell
the property for a loss at a later date.
Foreclosure Investment
Some individuals and companies are engaged in the business of purchasing
properties at foreclosure sales. Distressed assets (such as foreclosed
property or equipment) are considered by some to be worthwhile investments
because the bank or mortgage company is not motivated to sell the property
for more than is pledged against it.
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