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Summary:
| Judicial Foreclosure |
Yes |
| Non-Judicial Foreclosure |
Yes |
| Security Instruments |
Deed of Trust, Mortgage |
| Right of Redemption |
Yes |
| Deficiency Judgments |
Yes |
| Time Frame |
Usually 60 days |
Judicial foreclosure is used when no power of sale clause is included in the loan documents. The lender must sue the borrower in default and obtain a court order to foreclose.
Non-judicial foreclosure may proceed if no lawsuit to collect the delinquent amount has been filed, and the mortgage or any assignment of the mortgage to a new lender has been recorded, and, in the case of a homestead, notice of intent to foreclose has been given at least eight weeks before the process begins.
If these conditions have been met, and the power of sale clause does not contain the date, time and terms of sale, the procedure is as follows:
- A notice of sale must be recorded with the county clerk, and contain borrower and lender information, the original amount of the mortgage and the delinquent amount as well as the place, time and date of the sale.
- The notice must be published for six consecutive weeks prior to the date of sale, and served on the mortgagee at least four weeks prior to the sale.
- The sale is conducted as a public auction by the sheriff of the county in which the property is located. The sheriff or his deputy must read out an itemized statement, filed by the lender, of the amounts due. The successful bidder receives a certificate of sale.
- Borrowers have up until one year to redeem the property by paying the delinquent amount plus any costs.
- The lender may sue to obtain a deficiency judgment for the difference between the fair market value and/or sale amount and the balance of the loan.
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