When you develop a definite plan of action with well-time, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclose process for the state of Delaware.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No
In Delaware, if a borrower defaults, the lender can take several remedies simultaneously. The lender could sue to collect on the note and foreclose the mortgage. A lender could also sue on the note first, and pursue foreclosure later. However, the lender will only be permitted to recover the amount unpaid on the loan. Usually, the speediest process is scire facias, a procedure which contemplates a sale of the mortgaged property for a sum that will pay the balance on the loan, or a transfer of title to the lender, after the property has been exposed at a public sale, in exchange for a credit against some part of the balance on the loan, or up to the full balance owed on the loan.
Scire Facias
Scire Facias is a proceeding in which the borrower must show cause that there should be no foreclosure.
Usually, upon breach of the terms of the mortgage, such as through non-payment of the note or breach of the mortgage conditions, the lender may seek a writ of scire facias from the Superior Court in the county in which the mortgaged property is located. The initial filing, which must be sworn to, consists of a Praecipe and Complaint. The Praecipe calls upon the Prothonotary to issue the writ of scire facias. The term scire facias is the name both of the writ and the proceeding it instigates. The writ is issued upon the default of the borrower in making payments or observing mortgage conditions, and requires the borrower to show cause why the mortgage should not be foreclosed and the property sold.
Once the writ is issued, it will be served upon the borrower by the sheriff. If the sheriff goes out and tries to
hand the borrower the writ without success after repeated effort, which is called return non est., then a default liberari judgment may be obtained. (At least two separately issued consecutive writs must be returned non est.) If the borrower is served with the writ, it will command the borrower to appear before the court to show cause why the mortgage premises out not to be seized and sold to pay off the mortgage, with interest, or else pay off the lender’s losses due to the borrower’s non-performance. If the borrower fails to appear within 20 days after being served with the writ of scire facias, then the lender will obtain a default liberari judgment. Otherwise the borrower must prove why the foreclosure should not take place. Unless the court is satisfied with the explanation, the court will authorize the property to be seized to pay off the mortgage.
Preliminary Notices
Posting
Notices of the sale must be posted publicly and on the property in foreclosure at least ten days before the sale date.
Delivery
A copy of the notice must be run two weeks before the sale.
Sale Procedures
Person Conducting the Sale
The sale itself will be conducted by the sheriff.
Place of Sale
The place of sale must be either at the court house steps or at the site of the property in foreclosure.
Post-Sale Matters
The sale must be confirmed by the court. Once confirmed, no redemption is possible. A deed will be executed by the Sheriff to convey title to the purchaser. Deficiency judgments are possible, but only by a suit on the note, in addition to the scire facias.
Unusual Procedures
Since scire facias is purely a remedy at common law, equity law does not play a role in the proceedings. Although mortgages can be foreclosed by an equity suit in the Delaware Court of Chancery, this method is seldom used. Strict common law has some unusual results, however. In particular, the borrower’s counterclaims will not be heard at the hearing on the scire facias, because they were not part of the original mortgage. Such counterclaims must be pursued in a separate proceeding rather than as part of the scire facias proceeding. However, all record owners acquiring title subject to the mortgage (terre-tenants) must be joined in the scire facias proceeding. Also persons who have equitable or legal interests of record, such as one pursuant to a judicial sale, must be joined. These changes were made in 1986 to correct a constitutional problem with the old procedure.
When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of Maryland.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No (but assent to decree is allowed)
Maryland offers two basic methods of foreclosure:
Power of sale foreclosure, in which the lender or another person named in the mortgage or deed of trust, may sell the property and
assent to decree foreclosure, in which the borrower agrees to permit the court to order foreclosure.
In either case, however, the lender must file a lawsuit in court to foreclose. The same is true if the mortgage instrument lacks either a power of sale clause, or an assent to decree clause, but in that event, the lawsuit will be more complicated.
When the mortgage contains a power of sale or assent to decree clause, and if 25 percent of the involved lenders (as measured by the percentage of the total dollars of mortgage debt against the property) consent or make application for sale, then no service of process, answer or hearing is required. This simplifies the lawsuit. On the other hand, if the mortgage contains neither a consent to a decree clause nor a power of sale clause, or if a foreclosure sale is desired prior to the court's final decree, then there must be service of process, an answer and a hearing. However, in the latter case, 25 percent of the lenders do not have to join in filing the initial lawsuit.
Power of Sale Foreclosure
Power of sale clause foreclosures must be done under court supervision in Maryland. A person desiring
foreclosure must file a lawsuit asking for foreclosure pursuant to the power of sale clause.
The lender must do the following:
Assent To Decree Foreclosure
Under an assent to decree foreclosure, the lender must file a lawsuit in court to foreclose. The court will then enter a decree ordering the property to be sold and appoint the trustee to conduct the sale. The trustee must post a bond and sell the property according to the terms fixed by the court. The court will later confirm the sale.
Deficiency
In Maryland a deficiency judgment may be obtained if the lender makes a motion for it within three years after the accounting before the foreclosure is complete.
Redemption
Maryland foreclosure proceedings take place as an action under equity law. Maryland has not seen fit to establish a specific time limit on how long the borrower has to wait to redeem real estate lost in foreclosure. However, the Doctrine of Laches prevents this time period from being unreasonably long.
C Thompson
Case Manager
Cell:407-219-8739
For Information on Loan Modification Scams click here
For Information on Investor foreclosures click here
For FAQS click here
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes
Either a judicial foreclosure in the form of a bill of equity, or a sale by advertisement pursuant to a power of sale clause in a deed of trust is permitted in Virginia.
Judicial Foreclosure
In Virginia, a mortgage may be forclosed by filing a type of lawsuit known as a bill in equity. When and if necessary, a deed of trust could also be foreclosed through court action. In either case, a court order can be issued which specifies the terms and conditions of the sale, which are controlled by the mortgage contract Commissioners are appointed to handle such sales. The court must confirm the sale.
Non-judicial Foreclosure
The trustee under the deed of trust may accelerate the note, give the necessary preliminary notices, and arrange the foreclosure sale.
Preliminary Notices
Contents
The foreclosure sale ad must include anything required by the deed of trust and may include a legal description of the property, a street address and a tax map identification or general information about the property's location. The notice must include the time, place and terms of sale. It must give the name of the trustee and the address and phone number of a person who will be able to respond to inquiries about the foreclosure sale.
Advertising
Even if the deed of trust provides for advertising, ads should be published no less than once a day for three
days, which may be consecutive days. If the deed of trust does not provide for advertising, then the ad shall be run once a week for four successive weeks. However, near a city, an ad on five different days, which may be consecutive, will be sufficient.
Mailing
A copy of the advertisement or a notice with the same information must be mailed to the borrower at least 14 days before the foreclosure sale.
Sale Procedures
Time of Sale
The sale must be made no earlier than eight days after the first ad and no more than 30 days after the last advertisement.
Special Procedures
Written one-price bids may be made and received by the trustee for entry by announcement at the foreclosure sale. Any bidder who attends the foreclosure may inspect the written bids.
Manner
The sale is to be made at auction to the highest bidder. Unless otherwise required by the deed of trust, the trustee may require a bidder to make a 10 percent cash deposit. The trustee must apply the proceeds of the sale first to expenses of the sale, including a 5 percent trustee's commission, second to unpaid taxes, assessments and levies, third to liens in order of their priority and the balance, if any, to the borrower. The trustee will execute and deliver a deed to the buyer.
Deficiency
A lender may pursue a borrower for a deficiency judgment in Virginia. No limits are imposed.
Redemption
In a court-ordered foreclosure sale the court may give the borrower a redemption period. Otherwise, Virginia does not give borrowers redemption rights
C Thompson
Case Manager
Cell: 407-219-8739
Email: cthompson@keepyourproperty.info
Web: www.keepyourproperty.info
For Information on Loan Modification Scams click here
For Information on Investor foreclosures click here
For FAQS click here
Foreclosure Process in North Carolina
When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of North Carolina.
The Process
North Carolina offers two methods of foreclosure:
1. By filing a lawsuit seeking foreclosure
2. By conducting an out-of-court foreclosure sale under the terms of a power of sale clause in a deed of trust.
In the event the lender elects to foreclose by filing a lawsuit, it will try to get a default judgment. Once the lender gets a judgment, the court clerks for the Superior Court have the power of the judge to appoint commissioners to make the foreclosure sale, receive the reports on the sale and confirm the reported sale. They may order the execution and delivery of a deed to the property. The clerk may also issue a writs of assistance to evict any occupants, provided ten days' advance notice is given to such occupants.
Deed of Trust Foreclosure
In North Carolina, a deed of trust foreclosure has several unusual features. First, there must be a preliminary hearing as to whether to foreclose or not. Interested parties must receive notice of the hearing. The clerk of the court, not the judge, holds the hearing. Afterward, a notice of the foreclosure sale must be given; then the sale is conducted. A deposit must be made at the sale. After the sale, however, a very unusual procedure called an upset bid exists. An upset bid consists of making a higher bid than the foreclosure bid within a set time, which will cause the property to go through a resale, which may happen again and again! After the final sale, the sale is reported to the court clerk.
Preliminary Hearing
Under North Carolina law, a lender or trustee who has the power of sale under a deed of trust may foreclose it by following a statutorily prescribed procedure. At the outset, a hearing must be held before the court clerk (not the judge) to determine whether the foreclosure should take place or not. Notice of the hearing must be served in the manner in which a lawsuit is served, or by certified mail, return receipt requested, or, if no other process to give notice works after diligent effort, then the notice of the hearing can be posted in a conspicuous place on the property that will be foreclosed on.
Notice of the Foreclosure Hearing
loan and every person who has a recorded claim or lien on the real estate that would be affected by the foreclosure.
The Hearing
The clerk will hold the hearing. During the hearing, the clerk will consider evidence as to whether the debt exists, whether a default has occurred and whether the lender has the right to foreclose. If the clerk answers those questions in the lender's favor, he or she will authorize the foreclosure. Either side may appeal the clerk's ruling to the judge within ten days. (This is likely to be fruitless.)
Notice of Sale - Contents
Notice of Sale - Posting and Publishing
The notice of the sale of the real estate must be posted at the courthouse door for 20 days prior to the sale. In addition it must be published once a week for two successive weeks. The two ads must be published at least eight days apart. The last ad cannot be published less than ten days before the sale. The notice of the sale must be mailed first class mail at least 20 days before the sale to the borrower and any other owner or record title or lien claimant at the address last known to the trustee or the lender. The notice must further be sent to anyone who has taken the time and trouble to record a request for copy of notice in the statutory form as follows:
In accordance with the provisions of G. S.. 45-21.17(5) request is hereby made that a copy of any notice of sale under the deed of trust (mortgage) recorded on ____________________19____, in Book____, page ______ records of ________________ County, North Carolina, executed by
__________________________ as trustor (mortgagor) in which _________________________
is named as beneficiary (mortgagee), and ____________________________ as trustee to be mailed to ______________________ at the following address __________________________.
Signature: __________________________
If the sale is made to someone other than the lender, or if the lender resells to a good-faith buyer and such a buyer holds the land six months, then a person who did not receive a notice of sale loses the right to challenge the foreclosure. To challenge the sale, the party must post a bond equal to what the lender is owed on the loan against the property. The bond is irrevocable, pending the final decision of the court.
Time of Sale
A sale shall begin at the time designated in the notice of sale, but never on a Sunday and always between the hours of 10 a.m. and 4 p.m. The sale may be continued or postponed. However, a postponement may only be for good cause, such as bad weather, an excessive number of competing sales, illness or another good reason. The postponement must be announced at the time and place the regular sale would have taken place. A notice of the postponement must be posted on the courthouse door, and be given orally to each party who is normally entitled to notice of a foreclosure sale. The notice has to state the hour and date to which the sale is postponed and the reason for the postponement and it must be signed.
Place of Sale
The property must be sold at the courthouse door in the county where the land is located, unless the deed of trust provides for a different location. If the deed of trust gives the trustee the authority to designate a place of sale, then the place of sale will be the place the trustee designates on the notice of sale. The deed of trust may require a cash deposit at the sale and set the amount. If the required cash deposit is not specified in the deed of trust, then the trustee holding the sale may require the highest bidder at the sale to pay a cash deposit not to exceed 10 percent of the bid up to $1,000, and 5 percent of the amount by which the bid exceeds $1,000. If the high bidder fails to make the deposit at the sale, then the trustee may immediately re-offer the property for sale to any bidders.
Report
A preliminary report of the sale must be made to the court within five days after the sale. The report must give the name of the borrower; the lender; the date, time and place of the sale; recording information about the deed; the name of the foreclosure buyer; the price at which the property was sold and the name of the person making the report.
Proceeds of the Sale
The foreclosure sale proceeds should be used to pay off the costs of the sale, the taxes on the property and any special assessments. Next, the money goes to pay the balance due on the loan, and then to creditors in order of their seniority. Anything left over goes to the borrower, or his or her estate. A special proceeding is available to contest the distribution of the sales proceeds.
Upset Bids
One of the most intriguing features of North Carolina law is the upset bid on real estate sold at foreclosure. Even after the sale, a potential buyer can come in and make an upset bid. An upset bid is an increased bid whereby a bidder offers to buy the real estate previously sold at foreclosure for an amount exceeding the reported foreclosure sale price by 10 percent of the first $1,000 and 5 percent of the amount over $1,000 of the old foreclosure bid. Such a sum of cash, or a cashier's check, must be deposited with the clerk of the Superior Court, within ten days after the clerk receives a report on the old foreclosure sale. The clerk may also require a bond in the amount of the upset bid price, minus the cash deposit. The clerk may then order a resale of the property.
Resale Under Upset Bids
When the clerk offers the property for resale due to the deposit of an upset bid, then the notice of the resale must be posted at the courthouse door for 15 days prior to the sale. A newspaper ad must be published once a week for two successive weeks before the sale. Eight days must separate the two ads. The last ad must be run no less than seven days before sale. A notice of the resale must be mailed to each party. The sale will take place in the same manner as the original sale. Once again, a high bidder will emerge, who may well be the person who put down the upset bid deposit. The entire resale may be done again and again as often as upset bids are submitted!
Final Report
A final report on the sale and the disposition of the proceeds must be given to the clerk by the person who held the foreclosure sale, within 30 days after receipt of the proceeds of the sale. The final report should show what part or parts of the property were sold. The clerk must audit the report and record it. A copy of the notice of sale or resale, and an affidavit of publication should also be recorded. At this point, the sale is final. Special procedures exist to validate foreclosure sales well after they took place when the proper procedures were not complied with, or the trustee was also the lender.
Injunctions
It is possible to enjoin a foreclosure sale in North Carolina.
Deficiency
A lender may not sue for a deficiency if the loan that went into default was for the purchase price of the real estate. However, in other cases a lender may sue for deficiency, but the borrower has the right in a deficiency suit to prove the reasonable value of the property as a defense or offset to the lender's claims. The borrower is not restricted to forcing the lender to credit only the foreclosure bid against the property; the borrower can instead assert and prove the market value of the property as an offset to a deficiency suit by the lender.
C. Thompson
Case Manager
Cell: 407-219-8739
Email: cthompson@keepyourproperty.info
Web: www.keepyourproperty.info
For Information on Loan Modification Scams click here
For Information on Investor foreclosures click here
For FAQS click here
South Carolina Foreclosure Process
When you develop a definite plan of action with well-timed, well-informed steps, you can stop the foreclosure process and save your home. We have outlined the foreclosure process for the state of South Carolina.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No
South Carolina uses judicial foreclosure. The lender must file a lawsuit and seek either an order of sale or a judgment for the loan balance against the borrower or both.
Sale Procedures
Time
The hours of sale shall be between 11:00 and 5:00. However, no sale may be made after the sheriff declares the sales closed for the day.
Place
The sale takes place at the courthouse of the county where the real estate is located.
Manner
South Carolina foreclosure sales are conducted by the sheriff at public auction to the highest bidder for cash. The sheriff will prepare and deliver a deed to the high bidder.
Special Procedures - Upset Bids
Bidding remains open until 30 days after the sale. During that time, an upset bidder may make a suitable
deposit, which is refundable, and outbid whoever made the highest bid at the actual foreclosure sale. A 5 percent higher bid is an upset bid although a lower figure may be acceptable to the court. However, if no deficiency judgment is sought, then the upset bid procedure will not be followed.
Deficiency
The lender can sue for and the court may adjudge and direct that if any part of the mortgage debt remains unpaid after the sale of the mortgaged premises, then the lender may seek a court order directing the borrower to pay the unpaid sum or residue. The judgment may be enforced as in other cases. However, within 30 days after the sale, if a defendant was sued for a deficiency, he or she may apply to the court for an order of appraisal. The defendant appoints one appraiser, the judgment creditor appoints another and the judge appoints another. If the appraised value is greater than what remains owed on the loan, after subtracting the foreclosure sale proceeds,
then there is no deficiency. However if it is less, then the borrower still gets credit against the judgment for the appraised value of the property. The lender can collect only what's left.
Redemption
South Carolina does not recognize a right of redemption after foreclosure.
C. Thompson
Case Manager
Cell: 407-219-8739
Fax: 775-997-0751
Email: cthompson@keepyourproperty.info
Web: www.keepyourproperty.info
For Information on Loan Modification Scams click here
For Information on Investor foreclosures click here
For FAQS click here
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For our clients we agree to do the following:
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