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Judicial Foreclosure States, Definition, and Process

Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.
what is a judicial foreclosure

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 is going through legal procedures due to overdue payments, it’s crucial to connect with a seasoned New York attorney specializing in these matters. Reach out to Moshes Law, P.C. for a complimentary consultation. They can guide you on safeguarding both yourself and your home against legal judgments related to outstanding debts.

What Is a Judicial Foreclosure?

Each state follows its own set of rules concerning property seizure. In some states known as nonjudicial foreclosure states, lenders can bypass court involvement to seize a property. However, in states following judicial foreclosure procedures, lenders are required to file a lawsuit and secure a court order for a foreclosure sale.

How Does Judicial Foreclosure Work?

When a borrower fails to meet their mortgage payments, the lender takes legal action by initiating a lawsuit. The homeowner receives a notice of legal action, informing them about the ongoing proceedings. The borrower can decide between permitting the legal process to continue or contesting it in court.

If a homeowner decides to challenge the legal action concerning their property, seeking advice from a knowledgeable attorney experienced in these matters is crucial. During the legal process, both parties involved can present evidence for the judge’s review. Typically, a hearing is scheduled for the judge to assess whether the borrower failed to meet mortgage obligations.

At times, the borrower might aim to reach an agreement with the lender to avert property seizure. However, if an agreement cannot be established, the matter will proceed to a legal decision. Should the court rule in favor of the lender, an order permitting property sale will be issued, enabling the lender to proceed with the sale.

The legal procedure for reclaiming property due to unpaid debts can be a lengthy one, offering homeowners an opportunity to stabilize their finances. Homeowners should monitor the status of their property’s legal proceedings regularly to stay informed.

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. It encompasses various strategies aimed at mitigating the financial loss for both lenders and borrowers. Each type of foreclosure, whether judicial or non-judicial, may have specific procedures and requirements that borrowers must navigate.

  • A loan modification
  • A short sale
  • Deed in lieu of foreclosure

During the pre-foreclosure period, a lender will dispatch late payment notices and breach letters outlining their intent to initiate foreclosure proceedings, typically accompanied by information about credit counseling, legal aid, and other financial education resources to assist customers. These notices also serve to inform borrowers about the potential impact on their credit report.

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

In certain states, a mortgage lender has the authority to seek a deficiency judgment if the proceeds from the sale of the property fail to fully satisfy the mortgage debt. Should a deficiency judgment be issued, the homeowner will be held accountable for the remaining balance owed to the mortgage lender.

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.

judicial foreclosure states

If you’re facing the risk of losing your home and need urgent assistance to halt the legal proceedings, seeking guidance from a skilled attorney familiar with property law in New York is crucial. Reach out to a New York attorney specializing in these matters for a complimentary 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

In certain states that follow judicial foreclosure processes, there are instances where court involvement might not be mandatory, or it occurs only if the homeowner initiates it. To learn about the specific foreclosure regulations in your state, reaching out to a legal professional well-versed in foreclosure matters within your state is advisable.

Getting Help from Foreclosure Attorney 

If you’re confronted with legal proceedings affecting your property in New York, it’s crucial to connect with a seasoned attorney. They can guide you on your homeowner rights, potential defenses, and the laws relevant to these proceedings. The proficient legal team at Moshes Law, P.A., is adept at aiding you in safeguarding your home from the risk of being taken and auctioned off.

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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