When you take out a loan from a bank or mortgage company to buy a home, you’ll most likely sign many documents, including a mortgage (or deed of trust) and promissory note. In this paperwork, you’ll promise to make the payments according to the payment schedule. But if you fail to do so, the lender can go through a legal process and sell your home to a new owner so it can recover the money it lent you. This process is called "foreclosure." Here’s how foreclosures generally work.
Because buying a home involves a large sum of money, it’s common for a buyer to finance the purchase with a loan (commonly called a "mortgage") rather than coming up with all of the cash upfront. The main parties to the transaction are the borrower and the lender. The borrower is the person who borrows money and pledges the property as security to the lender for the loan. The borrower is sometimes called the "mortgagor." The lender, or "mortgagee," provides the loan.
As part of the loan transaction, the borrower usually signs several documents, including a promissory note and a mortgage (or deed of trust). A promissory note is a document that contains a borrower’s promise to repay the amount borrowed and the terms for repayment, like the interest rate. However, the note doesn’t set out any consequences of non-payment other than late charges—that’s the function of the mortgage or deed of trust.
A mortgage is the contract that gives the lender the right to foreclose if the borrower doesn’t make the loan payments. In states that don't use mortgages to secure the loan, the borrower signs a different security instrument, called a "deed of trust." When the lender records the mortgage or deed of trust in the land records, it creates a lien on the home. If the borrower breaches the loan contract, like failing to make payments, the lender can foreclose the property.
A servicer manages the loan account. In some cases, the loan owner is also the servicer. Other times, the loan owner sells the servicing rights to a third party. That company then handles the loan account; it processes monthly payments and oversees collection activities if the borrower doesn’t make the payments.
Many times, after originating the loan, the original lender won’t keep it. Instead, the lender sells the loan to bring in more money so it can keep lending to new borrowers. Promissory notes and mortgages/deeds of trust are transferable. When a loan changes hands, the promissory note is endorsed (signed over) to the new owner. The seller documents the transfer by recording an assignment in the land records. The new owner is called an investor. Lenders typically sell the loans they originate to other banks or investors on the secondary mortgage market.
Most standard mortgages and deeds of trust require the lender to send a "breach" letter before starting a foreclosure. The letter ordinarily gives the borrower 30 days to catch up on the overdue amounts to avoid losing the property.
Some states also have a law requiring the lender or servicer to send some kind of notice before a foreclosure starts. While the type and content of these notices vary from state to state, they usually serve the same purpose as a breach letter—they tell the borrower to get current or else a foreclosure will start. Preforeclosure notices also often provide information about loss mitigation options (ways to avoid foreclosure), like loan modifications and short sales.
Federal mortgage servicing laws also provide preforeclosure protections to homeowners, including:
State law determines foreclosure procedures. Generally, the process will be judicial or nonjudicial. Some states require the process to go through court (judicial foreclosures). In other states, the foreclosing party (the "bank") can use out-of-court procedures (nonjudicial foreclosures). Or it may opt to use the court system to foreclose.
Approximately half of the states require the bank to file a lawsuit in court to foreclose. You’ll be served a copy of the suit (called a "complaint" or "petition"), along with a summons, telling you about the foreclosure. If you don’t file an answer with the court, the bank will ask the court for—and probably receive—a default judgment, which will allow it to hold a foreclosure sale. If you respond to the lawsuit, however, the case will go through the litigation process. To protect your rights, you have to respond to the suit within the time afforded by your state, raising any defenses, affirmative defenses, and counterclaims in your answer. If the bank wins the case, the judge will enter a judgment, allowing the bank to sell the property. This process, called a judicial foreclosure, usually takes at least several months, and as long a few years in some places.
In a nonjudicial foreclosure, the bank usually has to provide notice about the foreclosure in one or more of the following ways:
Typically, the bank also has to record a notice in the county records. Nonjudicial foreclosures generally take much less time than judicial ones, taking only a few weeks or months to complete. If you have one or more defenses and want to fight a nonjudicial foreclosure, you have to file a lawsuit.
With both judicial and nonjudicial foreclosures, the process ends with a foreclosure sale. The sale is typically an auction where the public and foreclosing bank may bid on the property. The bank normally makes a bid on the property using what’s called a "credit bid" rather than bidding cash. (The bank gets a credit up to the amount of the borrower’s debt.) The highest bidder at the sale becomes the new owner of the property.
In two states—Connecticut and Vermont—the bank can use what’s called a "strict foreclosure" process. In a strict foreclosure, the bank files a lawsuit, but the court doesn’t order a foreclosure sale. Instead, the court directly transfers the property title to the bank.
Depending on state law, you might be able to remain in the property—even after the sale—until the redemption period expires or some other action, like sale ratification, happens. If you don’t move after the foreclosure sale occurs or the extra time expires, though, you’ll be evicted. In some cases, the lender includes an eviction as part of a judicial foreclosure. Other times, the lender has to file an eviction lawsuit to evict. A separate eviction lawsuit is typically required after a nonjudicial foreclosure.
If the foreclosure sale doesn't bring in enough money to fully repay what you owe the bank, the difference between the sale price and the total debt is called a "deficiency." In some states, the foreclosing bank can get a personal judgment, called a "deficiency judgment," against you for the deficiency amount. Other states prohibit deficiency judgments under certain circumstances.
While this article provides a general picture of foreclosure processes, laws differ among states. To get specific information about your state's foreclosure procedures, how they apply to your particular situation, and your legal rights, consider talking to a local foreclosure lawyer.
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