The non-judicial foreclosure process is used to enforce the “power of sale” clause the borrower agreed to in the deed of trust and provide for the sale of the property to satisfy the debt.
Frequently Asked Questions
When is a Borrower In Default?
A borrower can be considered in default whenever they fail to carry out the terms of the note and deed of trust in any way.
This includes, but is not limited to the following:
Failure to make their monthly payments as scheduled
Failure to payoff matured loan
Defaulting on a Senior Lien
Failure to pay property taxes on time
Failure to maintain proper insurance
The non-judicial foreclosure process is the same for everyone in each state, and fees for foreclosures are regulated by the states and are the same for all. The difference comes in the service you receive from the trustee you select.
Our team of professionals includes chosen Legal Counsel, Real Estate and Foreclosure/Reconveyance Specialists who are here to handle your foreclosure in a totally professional and respectful manner.
Deed in Lieu of Foreclosure
One alternative to a non-judicial foreclosure is a “deed in lieu of foreclosure”. The deed in lieu of foreclosure is an instrument that conveys all interest in the property from the borrower to the mortgagee in order to satisfy a loan in default and avoid a foreclosure.
A deed in lieu of foreclosure actually offers numerous benefits to both borrower and lender. The primary and most important advantage to the borrower is that it immediately releases them from most or all the indebtedness involved with the loan and default. A second advantage to the borrower is they avoid the proceeding and public knowledge of a foreclosure. Also, the borrower can often get better terms by going with a deed in lieu of foreclosure, than if they have a formal foreclosure.
The main advantage to the lender is a major reduction in the time and costs it takes to proceed with a non-judicial foreclosure and their can be other advantages to the lender if the borrower ends up filing for bankruptcy afterwards.
To be considered a deed in lieu of foreclosure the debt must be secured by the property that is being transferred, and the settlement amount agreed to must be at least equal to the fair market value of the property.
The deed in lieu of foreclosure is always entered into on a voluntarily basis and in good faith by both parties. Because the deed in lieu of foreclosure is required to be voluntary, most lenders will often require a written offer of such a conveyance from the borrower that specifically states that they are offering to enter into the negotiations on a voluntary basis. This conveyance enacts the “parole evidence rule” and protects the lender from any future claims by the borrower that they were pressured in to the settlement or the lender acted into bad faith.
Our staff will be glad to advise you if this is the right choice for your situation and get the process started.
Sometimes in the process of trying to work out a bad loan, the parties will use what is called a “Forbearance Agreement” which basically establishes the ground rules for continuing the lending relationship, while both parties try to work out a solution to the defaulted loan and the issues are resolved.
What is a Forbearance Agreement?
A “Forbearance Agreement” is an agreement where a lender will agree it will not proceed with an action against a borrower, that it otherwise would have a right to take. In our case, the lender will “forbear” proceeding with a foreclosure action against the borrower, while both parties try to resolve the issues that are causing the problems with the debt.
When a borrower has a good history with a lender, and has simply run into some temporary financial problems, it can sometimes be in the lenders best interest to enter into a forbearance agreement with the borrower and try to work things out. This avoids the time and costs associated with a foreclosure, and will preserve both the loan and the lenders relationship with a good borrower.