Foreclosure – What Are Your Rights?

By | May 9, 2011

If you ask most people, they’re not interested in the law. Sure, they’ll enjoy a good courtroom drama on television, and they’ll listen to interesting cases on the news, but when it comes to local and state laws governing their actions – well, some peoples’ eyes simply glaze over. It’s not hard to blame them, considering just how dry and indecipherable some laws on the books have been written.  Laws can also be long reads – there’s a reason many lawyers’ offices are stacked from floor to ceiling with legal books, after all.That interest in the law changes when the law becomes relevant in their lives.  That’s what happens a lot in the case of foreclosure law.  Suddenly the realities of state rules and regulations become just that: more real, more relevant.  People facing foreclosures all over the state tend to be undereducated when it comes to foreclosure laws.  Why? They either have a lawyer handle everything or, if they can’t afford a lawyer, simply don’t know where to start looking for information about foreclosure law.

This article is here to change the latter situation.  If you’re in danger of a foreclosure because of delinquent payments, the information present here should give you an idea of the rights you have as the mortgage borrower.  Foreclosure law is often written so that even a delinquent payer has plenty of opportunities to make good on his or her mortgage, and even if that’s impossible, you still have rights of notification and certain timelines will need to be respected.  Let’s take a closer look at your rights in a foreclosure.

1. Rights vary from state to state. Of course, we can’t go very far without mentioning that foreclosure laws are not largely handled by the federal government. Although federal aid and foreclosure programs exist, they largely interact with the systems already set up by the individual states in order to protect homeowners. This means that your foreclosure rights in New Jersey won’t be the same as foreclosure rights in California. Some states do have similar systems, but never assume information when the information is out there, easy for you to obtain.

How do the rights vary from state to state? Well, there are essentially two types of mortgage foreclosures: judicial and non-judicial foreclosures. A judicial foreclosure happens when your mortgage foreclosure is handled and executed by the state, and a non-judicial foreclosure is generally handled by the lender.  Some states will allow either type of foreclosure to take place; other states will have heavy preferences for either one or the other.

In either case – a judicial or a non-judicial foreclosure – you will typically have the right to make up all of your missed payments (plus associated legal costs) and end the foreclosure process.  This is true in just about every state as your property still hasn’t been sold.

2. Learn about redemption rights in your state. What if you haven’t been able to make payments before the sale of your home but you might be able to muster the money in a few months’ time? There’s a possibility you still have some foreclosure rights.  In this case, it’s known as the Right of Redemption – a time period after the sale of a foreclosed property in which you’ll be able to make good on all payments and re-take ownership of the home.

Of course, since you’ve put the mortgage lender and even the state through a bit of an ordeal, you’ll probably have to cover some additional legal costs, but many people are happy to know that they at least have the cushion of a post-sale right of redemption.

This doesn’t exist in every state, and in fact many states do not have redemption rights – so don’t think you can stop paying your mortgage right now and simply make good on payments at any time in the future. While some states will grant you plenty of rights, they aren’t all so forgiving as to allow you a home for free.

3. What papers must be filed for a foreclosure to proceed? We can’t go on about your foreclosure rights without mentioning the actual paperwork that needs to be filed in order for a foreclosure process to move forward.  Especially in non-judicial foreclosures, where much of the burden is on the mortgage lender in order to execute a foreclosure, it’s important that you, the borrower, be notified of a number of steps along the way.

For example, many states will require a notice of intent to foreclose to be sent to you via certified mail, to ensure that it’s been received.  In many cases this notice of intent will have a timeline attached to it – for example, a sale can’t take place earlier than 30 days after this notice has been sent.  Typically, you will be informed of these timelines in the notices that are sent to you.  If you haven’t received any notices along the way, there’s a good chance you’ll be able to successfully challenge the foreclosure before it takes place.

Other notices, such as notices pertaining to the date of foreclosure sale, must be provided to the mortgage borrower as well as the general public in order to ensure that everyone with an interest in the property has been notified as to when they can make bids on it. The public foreclosure auction will also have other stipulations attached to it – for example, many states require that the foreclosure auction be advertised for three consecutive weeks before a sale take place.

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