Call now 501-548-2363. Stop foreclosure Conway. In the United States, there are two types of foreclosure in most states described by common law. Using a deed in lieu of foreclosure, or strict foreclosure, the noteholder claims the title and possession of the property back in full satisfaction of a debt, usually on contract. In the proceeding simply known as foreclosure (or, perhaps, distinguished as judicial foreclosure), the lender must sue the defaulting borrower in state court. Upon final judgment (usually summary judgment) in the lenders favor, the property is subject to auction by the county sheriff or some other officer of the court. Many states require this sort of proceeding in some or all cases of foreclosure to protect any equity the debtor may have in the property, in case the value of the debt being foreclosed on is substantially less than the market value of the real property; this also discourages a strategic foreclosure by a lender who wants to obtain the property. In this foreclosure, the sheriff then issues a deed to the winning bidder at auction. Banks and other institutional lenders may bid in the amount of the owed debt at the sale but there are a number of other factors that may influence the bid, and if no other buyers step forward the lender receives title to the real property in return. Stop Conway foreclosures. A slight majority of U.S. states have adopted nonjudicial foreclosure procedures in which the mortgagee (or more commonly the mortgagees servicers attorney, designated agent, or trustee) gives the debtor a notice of default (NOD) and the mortgagees intent to sell the real property in a form prescribed by state statute; the NOD in some states must also be recorded against the property. This type of foreclosure is commonly referred to as statutory or nonjudicial foreclosure, as opposed to judicial, because the mortgagee does not need to file an actual lawsuit to initiate the foreclosure. 72034 In this power-of-sale type of foreclosure, if the debtor fails to cure the default, or use other lawful means (such as filing for bankruptcy to temporarily stay the foreclosure) to stop the sale, the mortgagee or its representative conduct a public auction in a manner similar to the sheriffs auction. Notably, the lender itself can bid for the property at the auction, and is the only bidder that can make a credit bid (a bid based on the outstanding debt itself) while all other bidders must be able to immediately present the auctioneer with cash or a cash equivalent like a cashiers check. The highest bidder at the auction becomes the owner of the real property, free and clear of interest of the former owner, but possibly encumbered by liens superior to the foreclosed mortgage (e.g., a senior mortgage or unpaid property taxes). Further legal action, such as an eviction, may be necessary to obtain possession of the premises if the former occupant fails to voluntarily vacate. Foreclosure prevention Conway. 72032 In some states, particularly those where only judicial foreclosure is available, the constitutional issue of due process has affected the ability of some lenders to foreclose. In Ohio, the federal district court for the Northern District of Ohio has dismissed numerous foreclosure actions by lenders because of the inability of the alleged lender to prove that they are the real party in interest. In June 2008, a Colorado district court judge also dismissed a foreclosure action because of failure of the alleged lender to prove they were the real party in interest. In contrast, in six federal judicial circuits and the majority of nonjudicial foreclosure states (like California), due process has already been judicially determined to be a frivolous defense. The entire point of nonjudicial foreclosure is that there is no state actor (i.e., a court) involved. The constitutional right of due process protects people only from violations of their civil rights by state actors, not private actors. (The involvement of the county clerk or recorder in recording the necessary documents has been held to be insufficient to invoke due process, since they are required by statute to record all documents presented that meet minimum formatting requirements and are denied the discretion to decide whether a particular foreclosure should proceed.) There is no right to due process in nonjudicial foreclosure, it has been held that it is irrelevant whether the borrower had actual notice (i.e., subjective awareness) of the foreclosure, as long as the foreclosure trustee performed the tasks prescribed by statute in an attempt to give notice. ift.tt/12rnYJI
Posted on: Wed, 10 Dec 2014 06:37:49 +0000
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