What is Foreclosure?
When you buy a home and take out a mortgage, the lender obtains a security interest in your
home. If you are unable to fulfill your obligation to make payments, the lender has the right to
use the value of your property to satisfy the outstanding debt. A foreclosure is the process by
which a lender takes back the borrower’s property when the borrower defaults on their mortgage.
Foreclosure proceedings can be judicial or non-judicial trustee sales, depending on the laws of
the state where the property is located. When the foreclosure process is complete, the lender
can sell the property and keep the proceeds to pay off its mortgage and any legal costs. If the
promissory note was made with a recourse clause, then if the sale does not bring enough to pay
the existing balance of principal and fees, the lender can file a claim against the borrower for the
remaining balance on the loan.
What to Expect in Foreclosure
A foreclosure process can take 5 months or longer whether it is a judicial foreclosure or non-
judicial foreclosure private trustee sale. Each state has different laws and timelines. It also
depends on the lender and how many other foreclosures they are working on at the same
time. Realistically today, foreclosures are taking as long as a year before the property goes to
foreclosure auction. An experienced foreclosure attorney in your state can advise you regarding
the exact procedure and timeline you can expect, but the following is a general guideline:
The Borrower is at least three months in default on mortgage payments.
The Lender starts initial foreclosure proceedings by recording notice of default or filing
a Lis Pendens (litigation pending) depending on statutory laws of the state where the
property is located.
The Borrower has statutory time in which to respond and defend themselves from
foreclosure (varies from state to state) prior to the foreclosure sale.
A Notice of Sale is published in the newspaper of general circulation in the county where
the property is located (approximately 3-4 months after the initial proceedings are started
by the lender.) Again it varies from state to state.
The borrower has statutory redemption period in which to reclaim the property by paying
all costs and fees and arrearages to bring the mortgage current. Each state has different
laws regarding redemption periods.
The foreclosure auction or Sheriff’s Sale is held at the court house steps (judicial
foreclosure) or other designated place approximately 5 months or more after initial
foreclosure proceedings are instituted by lender.
If the property is not sold at the foreclosure auction or Sheriff’s Sale, then it becomes an
REO (bank owned real estate) property which is now owed by the bank. The bank lists
the property for sale with a Realtor and it is offered in the MLS system to the public for
sale. This normally occurs approximately 6 months to year after foreclosure proceedings
Homeowner Options in Foreclosure
Homeowners do have options to save their home from foreclosure. Doing nothing is the worst
possible thing you can do. The smartest way to save your home from foreclosure is to start
finding a solution before you are threatened with foreclosure. Your first steps should be to
communicate with your lender if you think you are going to be in default or are already in default
on your mortgage. It is also highly recommended that you consult with a foreclosure defense
attorney to find out what your best options are to save your home.
Typical options that are available to homeowners facing foreclosure include:
Refinancing and Negotiating
Going to Court
Giving Up Your House
Refinancing and Negotiating
If you have equity in your home, then you may qualify to refinance your mortgage. If you are
upside down on your mortgage, then you may want to pursue a mortgage modification. When
you refinance, the old loan is paid off with the new loan, which is usually at a lower interest rate.
A repayment plan is also an option. This is an agreement between the lender and the borrower
where the borrower pays a higher payment to get caught up on the payments to bring them up
to date. With a forbearance agreement, the lender allows the borrower to make lower payments
or no payments for a period of time and then the later payments are higher to catch up. On
FHA loans, FHA allows their eligible borrowers to postpone monthly mortgage payments for a
minimum of four months. A foreclosure defense attorney can help you negotiate with your bank.
Contesting a foreclosure
If you believe that you will be able to bring your mortgage payments current within a certain
amount of time, you may be able to petition the court for an injunction, which would prevent the
lender from foreclosing for a period of time. If repossession is imminent the debtor must seek a
temporary restraining order. However, the debtor may have to post a bond in the amount of the
debt. This protects the creditor if the attempt to stop foreclosure is simply an attempt to escape
A debtor may also challenge the validity of the debt in a claim against the bank to stop the
foreclosure and sue for damages. In a foreclosure proceeding, the lender also bears the burden of
proving they have standing to foreclose.
If you are unable to make your mortgage payment:
Don't ignore the problem. The further behind you become, the harder it will be to
reinstate your loan and the more likely that you will lose your house.
Contact your lender as soon as you realize that you have a problem. Lenders do not want
your house. They have options to help borrowers through difficult financial times.
Open and respond to all mail from your lender. The first notices you receive will offer
good information about foreclosure prevention options that can help you weather
financial problems. Later mail may include important notices of pending legal action.
Your failure to open the mail will not be an excuse in foreclosure court.
Know your mortgage rights. Find your loan documents and read them so you know what
your lender may do if you can't make your payments. Consult with a foreclosure defense
attorney so you are fully informed.
Have your lawyer explain all your foreclosure prevention options.
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