FORECLOSURE PROCEDURES BY STATE
The foreclosure process varies somewhat from state to state, and depends primarily on whether the state uses mortgages or deeds of trust for the purchase of real property. Generally, states that use mortgages conduct judicial foreclosures; states that use deeds of trust conduct non-judicial foreclosures. The principal difference between the two is that the judicial procedures require court action.
To foreclose in accordance with judicial procedures, a lender must prove that the mortgagor is in default. Once the lender has exhausted its attempts to resolve the default with the homeowner, the next step is to contact an attorney to pursue court action. The attorney contacts the homeowner to try to resolve the default. If the mortgagor is unable to pay off the default, the attorney files a
lis pendens (action pending) with the court. The lis pendens gives notice to the public that a pending action has been filed against the mortgagor. The purpose of the action is to provide evidence of a default and get the courts approval to initiate foreclosure.
Non-judicial foreclosures are based on using deeds of trust that contain the power of sale clause. This clause enables the trustee to initiate foreclosure, without having to go to court. The trustee is required to issue a notice of default and notify the trustor (borrower) accordingly. If the trustor does not respond, the trustee then initiates steps for conducting the foreclosure sale.
The following table represents our current knowledge of which states uses mortgages (judicial) or deeds of trust (non-judicial) or both. Please check with your local county office to verify which one is used in your area.
|
State |
Judicial |
Non-Judicial |
State |
Judicial |
Non-Judicial |
|
Alabama |
X |
X |
Montana |
X |
|
|
Alaska |
|
X |
Nebraska |
X |
|
|
Arizona |
X |
X |
Nevada |
|
X |
|
Arkansas |
X |
|
New Hampshire |
|
X |
|
California |
|
X |
New Jersey |
X |
|
|
Colorado |
|
X |
New Mexico |
X |
|
|
Connecticut |
X |
|
New York |
X |
|
|
Delaware |
X |
|
North Carolina |
|
X |
|
Dist. of Col. |
|
X |
North Dakota |
X |
|
|
Florida |
X |
|
Ohio |
X |
|
|
Georgia |
|
X |
Oklahoma |
X |
|
|
Hawaii |
|
X |
Oregon |
|
X |
|
Idaho |
|
X |
Pennsylvania |
X |
|
|
Illinois |
X |
|
Rhode Island |
|
X |
|
Indiana |
X |
|
South Carolina |
X |
|
|
Iowa |
X |
|
South Dakota |
X |
X |
|
Kansas |
X |
|
Tennessee |
|
X |
|
Kentucky |
X |
|
Texas |
|
X |
|
Louisiana |
X |
|
Utah |
|
X |
|
Maine |
|
X |
Vermont |
X |
|
|
Maryland |
X |
X |
Virginia |
|
X |
|
Massachusetts |
|
X |
Washington |
X |
X |
|
Michigan |
X |
X |
West Virginia |
|
X |
|
Minnesota |
|
X |
Wisconsin |
X |
|
|
Mississippi |
|
X |
Wyoming |
|
X |
|
Missouri |
|
X |
|
|
|
