Determining if you are in a Judicial or Non Judicial State?

[2ndTimeAround]

.

Passing on information - if you are in default of your home loan. This information can help you determine your options.

**

Each state in the U.S. handles it’s mortgage foreclosures differently. In non judicial states foreclosures are quick, a homeowner could be literally out of their home in 90 days. The lender sends the homeowner a notice that they are in default of the mortgage. The lender advertises the house in the newspaper for a foreclosure sale on the courthouse steps. And the house is sold. Just like that. A few days later, the sheriff will be at the homeowner’s door to ask/force out because they no longer own the property. If your are in a non-judicial foreclosure state, you have to act really fast.

On the other hand, in judicial states foreclosures can take 9 months to a year for a homeowner to lose his home to a foreclosure. There must be a court proceeding. The mortgage company has to file a lawsuit. The homeowner is entitled to notice through a summons. A sale date is determined after a court hearing.

You can file a chapter 13 bankruptcy in order to stop the foreclosure. Chapter 13 cases in bankruptcy are filed more frequently in states where there are non-judicial foreclosures just to stop a mortgage foreclosure long enough for homeowners to figure out their defenses and to organize a defense.

States using Non Judicial Foreclosure;

Alaska, Alabama, California, Colorado, District of Columbia, Georgia, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Rhodes Island, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virgina, Vermont, Wyoming.

States using Judicial Foreclosure;

Arizona, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina,

States not listed; can be either/or, depending on the lender, or state laws

See link http://www.all-foreclosure.com/procedures.htm

..hope this helps someone...

.

[don123]

hello

since the most common defense is show me the orignal signed note. Do you know how often lenders loose it and become totally unable to foreclose. Also, how good is a defense based on technicals , like not sending a notice of intent to foreclose via certified mail

please advice

[LUEser]

I've been inundated with this area of law for a few weeks now since someone very close to me is on the verge of losing her house due to a botched loan mod from BoA.

To respond to you Don, in the year or so since "show me the note" has been used, the opposition has grown a little wiser to the fact and are starting to use lost document affidavits and the like to get around the argument of lost note.

From the research I've been doing there are several defenses that are being used now that range from stalling with Bk13, using TILA as grounds for rescission of a note, convoluting the whole process and eventually filing for a quiet title.

If you're looking for a defense based strictly on techincal grounds, TILA is the way to go, since it's a very strict statute with stiff penalties for noncompliance. However, if you're in a non-judicial state, YOU have to file the lawsuit first.

It's really not advisable to handle these things pro se, but with many homeowners in a position where they can't even pay their mortgages, it's hard to logically conclude that they can afford the retainer for a good lawyer.

If you can however, a good real estate or forclosure defense atty has all kinds of tricks up his sleeve, from filing a preliminary injunction to stay foreclosure due to pending lititgation, to making formal demands under RESPA, TILA, HOEPA, RICO etc, etc.

Of course, all of this is just speculative. The information I've gained is from the loansafe.org forums and from livinglies.wordpress.com. Both are great resources if you're forced to proceed pro se or to help you educate yourself and be more affluent in the language of the statues when talking to a lawyer about a foreclosure case.

I definitely recommend checking out those sites, and maybe even checking out the "Is there a Lawyer in the house" forum on this site.

[2ndTimeAround]

hello

since the most common defense is show me the original signed note. Do you know how often lenders loose it and become totally unable to foreclose. Also, how good is a defense based on technical , like not sending a notice of intent to foreclose via certified mail

please advice

Don

We do Forensic Mortgage Audits.

Answering your question - this happens often where a loan is sold between different lenders.

Now days everything is scanned into the computer. If a lender loses the paperwork, it is up to the judge to give the lender time to produce the loan note.

If they cannot find their records, they can go back to the title company and/or the attorney that did the closing to get an official copy.

..

[samson smith]

.

Passing on information - if you are in default of your home loan. This information can help you determine your options.

**

Each state in the U.S. handles it’s mortgage foreclosures differently. In non judicial states foreclosures are quick, a homeowner could be literally out of their home in 90 days. The lender sends the homeowner a notice that they are in default of the mortgage. The lender advertises the house in the newspaper for a foreclosure sale on the courthouse steps. And the house is sold. Just like that. A few days later, the sheriff will be at the homeowner’s door to ask/force out because they no longer own the property. If your are in a non-judicial foreclosure state, you have to act really fast.

On the other hand, in judicial states foreclosures can take 9 months to a year for a homeowner to lose his home to a foreclosure. There must be a court proceeding. The mortgage company has to file a lawsuit. The homeowner is entitled to notice through a summons. A sale date is determined after a court hearing.

You can file a chapter 13 bankruptcy in order to stop the foreclosure. Chapter 13 cases in bankruptcy are filed more frequently in states where there are non-judicial foreclosures just to stop a mortgage foreclosure long enough for homeowners to figure out their defenses and to organize a defense.

States using Non Judicial Foreclosure;

Alaska, Alabama, California, Colorado, District of Columbia, Georgia, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Rhodes Island, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virgina, Vermont, Wyoming.

States using Judicial Foreclosure;

Arizona, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina,

States not listed; can be either/or, depending on the lender, or state laws

..hope this helps someone...

.

The loan is default occurs, then homeowner will be mailed a default letter, and in many states, a Notice of Default will be recorded at the same time. If the homeowner does not cure the default, Notice of Sale will be mailed to the homeowner. A non-judicial foreclosure allows the lender to use the power of sale clause in the mortgage document to sale the property without a court order. On the other hand a judicial foreclosure process goes through a court action. It starts with the lender filing a complaint showing proof that the homeowner is in default to get a court order for the foreclosure.