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Using Foreclosure Law to Your Advantage

Apr 1, 2008
Foreclosure law varies from state to state with regards to the exact process that must be followed in order for a bank or lender to foreclose on your home. Knowing the foreclosure law in your state can help you negotiate with your lender and perhaps avoid foreclosure altogether.

One of the largest differences in foreclosure law is whether a state uses mortgages or deeds of trust for real estate. "Deed of trust" is a term that's not heard as often as mortgage, but in essence, they have the same function - they protect the lender from default on a loan that is secured by real estate. The major difference is in the process the lender must use to obtain the right to recover your property and sell it.

When you sign a mortgage agreement with a lending institution, you retain the deed to the property, and have full legal title to it - but you allow the lender to place a 'lien' on it. If you do not make the payments on the loan as agreed upon, the lender can foreclose on the property.

In some states, a deed of trust takes the place of a mortgage. With a deed of trust, you give the deed to the land or property to the lender, but the lender can only use or sell the property if you default on the loan.

In states that use mortgages, foreclosure law makes foreclosure a judicial procedure. A lender must prove to the court that the borrower has defaulted on the loan, and that they, the lender, have made appropriate attempts to resolve the default with the homeowner. There is a definite sequence of events that must be followed as prescribed in the foreclosure law, and knowing that sequence in your state can help you understand your options in terms of resolving the issue before it goes before a judge.

In states that use a deed of trust rather than a mortgage, the lender must go through certain steps of notification as required by foreclosure law in that state, but does not need judicial permission to proceed with a sale or foreclosure on the property to which they hold a deed in trust.

States whose foreclosure law requires judicial action include: Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Pennsylvania, South Carolina, South Dakota, Vermont, Washington and Wisconsin.
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