When a borrower takes out a mortgage to purchase a home, they agree to specific terms, one of which is monthly payments towards the mortgage debt. If a borrower defaults on the loan and fails to make payments, their property will eventually enter foreclosure. The judicial foreclosure process is the legal proceedings that allow the lender, in most cases a bank, to recover the balance of the defaulted loan by repossessing or selling the property.
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If your property has entered foreclosure proceedings, do not hesitate to reach out to an experienced New York foreclosure attorney today. Contact Moshes Law, P.C. for a free consultation to find out how to protect yourself and your home from a judicial foreclosure judgment.
What Is a Judicial Foreclosure?
There are two types of state laws that dictate how the foreclosure process will work. Some states are called nonjudicial foreclosure states. In these states, a lender is not required to go through court proceedings to foreclose on a property. Other states are called judicial foreclosure states. In a judicial foreclosure state, a lender must file a lawsuit in court and get an order from a judge for a foreclosure sale.
How Does Judicial Foreclosure Work?
When a debtor defaults on their mortgage, the lender will file a lawsuit in court. The homeowner will be served with a foreclosure complaint alerting them to the legal proceedings. The debtor has the choice to either allow the foreclosure to happen or fight the foreclosure in court.
If the homeowner chooses to contest the foreclosure, they should consult with a knowledgeable foreclosure attorney to guide them through the process. In foreclosure proceedings, both parties can submit evidence to be reviewed by the judge. Typically, a hearing will be held so the judge can determine whether the debtor defaulted on the mortgage.
In some cases, the debtor may try to settle with the lender to prevent a foreclosure on the property. However, if a settlement cannot be reached, the case will go to judgment. If the court rules in favor of the lender, a judgment of foreclosure will be entered, and the lender can proceed with a foreclosure sale.
The judicial foreclosure process can take a long time, sometimes giving the homeowner time to get their finances in order. A homeowner can check the foreclosure status on their property regularly to keep track of proceedings.
Steps in a Judicial Foreclosure
Judicial foreclosure is a lengthy process that can take up to a year to resolve. There are several steps that both a lender and debtor must take during this legal process.
Pre-Foreclosure Loss Mitigation Review Period
Federal laws do not allow lenders to file a lawsuit after just one or two missed payments. In most cases, lenders must wait until a debtor is 120 days delinquent on their loan to start the foreclosure process. This allows a homeowner time to apply for loss mitigation to avoid foreclosure.
Loss mitigation is an alternative to foreclosure. Some forms of loss mitigation include:
- A loan modification
- A short sale
- Deed in lieu of foreclosure
During the pre-foreclosure period, a lender will send late payment notices and breach letters which include the lender’s intentions of foreclosure. Most states require that lenders provide their customers with information about legal aid, credit counseling, and other financial education resources.
Find out how to save your house from foreclosure in New York by contacting a New York foreclosure attorney today.
The Lender or Current Owner of the Loan Files a Lawsuit
If payments are not caught up after the pre-foreclosure period and the required 120 days have passed, the lender can file a lawsuit asking the court for a judgment to sell the home to recoup the mortgage debt. The lawsuit process is lengthy, and the timeline involves several steps.
Complaint and Summons
All lawsuits begin with a complaint. In a foreclosure, the complaint is sometimes called a Petition to Foreclose. The complaint provides the court with the reason for the proceedings and why the judge should grant the foreclosure demand.
Federal law requires that all parties to the lawsuit are served with the complaint documents. This notifies the party that a complaint is filed against them and gives them a chance to respond. If the debtor chooses to contest the foreclosure, they have a certain amount of time; usually, 20 days, to file an answer to the initial complaint.
Judgment
If the debtor fails to file an answer to the complaint within the designated time, the lender can request a default judgment. Default judgments are issued when a party fails to respond to the lawsuit. A default judgment will automatically grant the lender the right to foreclose on the property.
When a debtor files an answer, the lender cannot request a default judgment, but they can file for a summary judgment. A summary judgment is used when the facts of the case are not disputed, and the outcome of the case is based solely on legal merit.
If the summary judgment is denied, the case will be set for trial. At a trial, both the lender and debtor will have the opportunity to present evidence pertaining to the foreclosure. At the conclusion of the trial, the court will enter a judgment on the case.
If the judge rules in favor of the lender, the court will issue an order giving the lender the right to foreclose on the property and proceed with a foreclosure sale or auction.
Deficiency Judgments
Some states allow a lender to file for a deficiency judgment if the sale of the property won’t cover the entire mortgage debt. If a deficiency judgment is granted, the homeowner will be responsible for the outstanding balance.
Foreclosure Auction
After the court issues a judgment, the bank will hold a foreclosure sale to sell the property to satisfy the remaining balance on the mortgage. If the property doesn’t sell, it becomes a bank-owned property. Some states allow a homeowner the right to redeem, which is a period before the sale to recover property ownership by paying off the mortgage debt.
Homeowners still have options to get their home back even after a foreclosure sale has been ordered. Contact an experienced foreclosure attorney to find out how to get a foreclosed home back.
When You Have to Leave After the Foreclosure
State laws dictate how long a homeowner can remain in a home after a foreclosure. In some states, a court must confirm the sale of the house before the party is required to leave the foreclosed home. Other states allow a party to remain in the home until after the redemption period expires.
What’s a Redemption Period
Certain states grant the homeowner the right to live on the property during the redemption period. During this period, a foreclosed homeowner has the opportunity to repurchase their home.
After the redemption period expires, if the homeowner has not repurchased their home, they will have to leave the property or face eviction proceedings.
If you need to stop a foreclosure at the last minute to save your home, you will need help from an experienced foreclosure lawyer in your state. Contact a New York foreclosure attorney for a free consultation.
States With a Judicial Foreclosure Process
The following is a list of judicial foreclosure states:
- Connecticut
- Delaware
- District of Columbia
- Florida
- Hawaii
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Nebraska
- New Jersey
- New Mexico
- New York
- North Dakota
- Ohio
- Oklahoma
- Pennsylvania
- South Carolina
- South Dakota
- Vermont
- Wisconsin
Some judicial foreclosure states have exceptions to court proceedings or only go through court upon the homeowner’s request. To find more information about your state’s foreclosure laws, contact a foreclosure lawyer in your state.
Getting Help from Foreclosure Attorney
If you face a judicial foreclosure in New York, don’t hesitate to contact an experienced attorney to learn about your rights as a homeowner, potential defenses against foreclosure, and New York’s foreclosure laws.The knowledgeable foreclosure attorneys at Moshes Law, P.A., can help you fight to save your home from repossession and auction.
At Moshes Law, we understand that foreclosure proceedings are stressful and emotional. Contact us for a free consultation today to discuss your case and find out how we can help.
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