A foreclosure in Idaho may be judicial, which means it goes through the court system, or it could be nonjudicial, which means the process happens without court supervision. Most foreclosing banks prefer to use the out-of-court process. They tend to choose this route because it’s faster, less expensive, and there isn’t a redemption period after a nonjudicial foreclosure in Idaho.
Because most foreclosures in Idaho take place out of court, this article focuses on that process.
Federal law also provides various other protections to homeowners facing a foreclosure.
In Idaho, the trustee (the third party that handles nonjudicial foreclosures) must provide the borrower with three types of notice before a foreclosure sale can take place: a notice of default, a loan modification request notice, and a notice of sale.
Notice of default. The trustee initiates the foreclosure by recording a notice of default at the county recorder’s office and mailing a copy to the homeowner and other parties. (Idaho Code § 45-1505).
Notice of opportunity to request a loan modification. If the property is the primary residence of the borrower, a notice about the opportunity to request a loan modification must accompany the notice of default. This notice will include a form for the borrower to return to make the request. If a borrower submits the form to the beneficiary (the bank, lender, or other entity that owns the loan), the beneficiary must respond in writing within 45 days to inform the borrower that it approves or denies the modification request or requires additional information. The sale may not take place before the beneficiary responds to the borrower. (Idaho Code § 45-1506C).
Notice of sale. After the trustee records the notice of default, it must also mail a notice of sale to the borrower, among others, at least 120 days before the sale date. (Idaho Code § 45-1506). Idaho law does not require the trustee to send the notice of default to the borrower before the notice of sale. The trustee may mail both notices at the same time.
The trustee must also:
"Reinstating" is when the borrower catches up on the defaulted loan's missed payments (principal and interest), plus fees and costs, to stop a foreclosure. In Idaho, the borrower gets 115 days after the recordation of the notice of default to reinstate the loan. (Idaho Code § 45-1506).
In some states, the borrower can redeem the home within a specific amount of time after the foreclosure. In Idaho, however, the former homeowners can’t redeem the home following a nonjudicial foreclosure. (Idaho Code § 45-1508). (But if the foreclosure was judicial, the homeowner may redeem the home either within six months after the sale, if the property is 20 acres or less, or one year after the sale, if the property is more than 20 acres.) (Idaho Code § 11-402).
When the total mortgage debt exceeds the foreclosure sale price, the difference is called a deficiency. Some states allow the foreclosing lender to seek a personal judgment, which is called a deficiency judgment, against the borrower for this amount. Other states prohibit deficiency judgments with what are called anti-deficiency laws.
In Idaho, the foreclosing bank can pursue a deficiency judgment by filing a separate lawsuit within three months after the foreclosure sale. The amount of the deficiency judgment can’t exceed the difference between the entire amount of the indebtedness and the property’s fair market value at the time of the foreclosure sale. (Idaho Code § 45-1512).
After an Idaho foreclosure sale, the purchaser is entitled to possession of the home on the tenth day following the sale. If the foreclosed homeowner does not leave by that time, the purchaser can file an eviction lawsuit.
If you want to get more information about foreclosure procedures in Idaho or would like to find out about potential defenses in your particular situation, consider talking to a lawyer. Also, consider making an appointment to speak to a HUD-approved housing counselor if you want to learn about different foreclosure avoidance options.