Judicial v. Non-Judicial Foreclosure

The following information can also be found on the main page of the My Foreclosure Options site, but the information is so vital to determining what options are available to prevent a foreclosure that it is being posted here again.  What type of foreclosure a borrower is facing is the first thing that must be determined in evaluating options to stop a foreclosure.

Some states allow for “non-judicial foreclosure”, while other states require a “judicial foreclosure”.  Some states allow for non-judicial foreclosure on certain types of loans, while requiring a judicial foreclosure on other types of loans.

A non-judicial foreclosure does not require court involvement.  A non-judicial foreclosure is authorized by state statute and the mortgage instrument (e.g. “deed of trust”) and allows a mortgage company to foreclose on a property through the use of a public official or trustee without significant procedural or time burdens.

A judicial foreclosure by contrast is a more expensive and lengthy process by which a mortgage company must file a lawsuit seeking a court order allowing foreclosure; serve the mortgagee with the lawsuit; and have a hearing on the right to foreclose.

A primary reason why the distinction between the two processes is important is the time difference between the two.  A non-judicial foreclosure can usually be accomplished much more quickly than a judicial foreclosure.  This can make a big difference if you need the time to try and save your house.

Below is a list of which states are generally judicial foreclosure states and which states are generally non-judicial foreclosure states.  Please note that this list relates to “normal” first liens.  Some states have different rules for different types of loans.  For example, Texas is a non-judicial foreclosure state for the most part, but it requires a judicial foreclosure on home equity loans.  Also, some states allow for a borrower to request a judicial foreclosure after a lender has begun the non-judicial foreclosure process.  Some states that allow for non-judicial foreclosure will also allow (or may even require) a judicial foreclosure, should it be necessary given the circumstances and the state’s laws.  As always, use this chart as a guidepost, not as a conclusion.

Foreclosure Type Chart

While the above list gives general guidance as to which states are judicial and non-judicial foreclosure states, the easiest way to determine what type of foreclosure you are facing is to look at the foreclosure notice you have been given.  Was the document sent by certified mail or was it served upon you personally by a process server or sheriff/constable?  Does the document look like a letter or does it look like a legal proceeding?  Does the document have a “case” number or a “cause” number anywhere on it?  Does it say “ABC Mortgage v. John Doe” or “In re: Foreclosure of 123 Main St.” on the first page?  Is your mortgage instrument contain a “power of sale” clause (if so, it is likely non-judicial)?  The answers to these questions may not be conclusive as to whether your foreclosure is to be judicial or non-judicial, but they should give you a pretty clear indication of what you are up against.

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