Question Judicial vs. non-Judicial states???

[Wantmypeace]

I'm curious what the difference is between a Judicial and non-Judicial state as it relates to foreclosures. I am in California. Does anyone know which California is and how that relates to foreclosure?

...lots of learning to do still...

[tobee43]

here's just a general description and list state by state"


"Judicial and Non-Judicial" Foreclosures

Each state in the U.S. handles it's real estate foreclosures differently, it's important to understand those differences and know your specific state's procedures. The terms used and time frames vary greatly from state to state, but the following information provides a general overview of the different processes and considerations. If you haven't done so yet, you can review our guide to each state's procedures at foreclosure procedures.

Judicial Foreclosures
Judicial foreclosures are processed through the courts, beginning with the lender filing a complaint and recording a notice of Lis Pendens. The complaint will state what the debt is, and why the default should allow the lender to foreclose and take the property given as security for the loan. The homeowner will be served notice of the complaint, either by mailing, direct service, or publication of the notice, and will have the opportunity to be heard before the court. If the court finds the debt valid, and in default, it will issue a judgment for the total amount owed, including the costs of the foreclosure process. After the judgment has been entered, a writ will be issued by the court authorizing a sheriff's sale. The sheriff's sale is an auction, open to anyone, and is held in a public place, which can range from in front of the courthouse steps, to in front of the property being auctioned. Sheriff's sales will require either cash to be paid at the time of sale, or a substantial deposit, with the balance paid from later that same day up to 30 days after the sale. Check your local procedures carefully. At the end of the auction, the highest bidder will be the owner of the property, subject to the court's confirmation of the sale. After the court has confirmed the sale, a sheriff's deed will be prepared and delivered to the highest bidder, when that deed is recorded, the highest bidder is the owner of the property.

Non-Judicial Foreclosures

Non-judicial foreclosures are processed without court intervention, with the requirements for the foreclosure established by state statutes. When a loan default occurs, the homeowner will be mailed a default letter, and in many states, a Notice of Default will be recorded at approximately the same time. If the homeowner does not cure the default, a Notice of Sale will be mailed to the homeowner, posted in public places, recorded at the county recorder's office, and published in area legal publications. After the legally required time period has expired, a public auction will be held, with the highest bidder becoming the owner of the property, subject to their receipt and recordation of the deed. Auctions of non-judicial foreclosures will generally require cash, or cash equivalent either at the sale, or very shortly thereafter.

It is important to note that each non-judicial foreclosure state has different procedures. Some do not require a Notice of Default, but start with a Notice of Sale. Others require only the publication of the Notice of Sale to announce the sale, with no direct owner notification required. You need to know the specific procedure for your state.

State by State Foreclosure Procedures

This is a general guide only, laws change and you need to check your state statutes for accurate, up to date procedures. Foreclosure type will most often be either judicial or non-judical, if you have a specific question about a state process, you can ask it on the discussion board. Months to foreclose include the legal minimum required and the probable time length once foreclosure has begun. Deficiency judgments are available in some states if the lender loses money through the foreclosure process, if it is not practical for the lender to enforce a judgment, it will be listed. Homeowner redemption after foreclosure is possible in some states, the time periods are listed where available.

STATE TYPE OF FORECLOSURE MONTHS TO FORECLOSE
MINIMUM/EXPECTED DEFICIENCY JUDGMENT REDEMPTION PERIOD
Alabama Primarily Non-Judicial 1/3 Possible and Practical 12 Months
Alaska Both 3/4 Not Practical None
Arizona Both 3/4 Not Practical None
Arkansas Both 4/5 Possible and Practical None
California Primarily Non-Judicial 4/4 Not Practical None
Colorado Both 2/5 Possible and Practical 75 Days
Connecticut Judicial/Strict 5/6 Possible and Practical None
Delaware Judicial 3/7 Possible and Practical None
District of Columbia Non-Judicial 2/4 Possible and Practical None
Florida Judicial 5/5 Possible and Practical None
Georgia Primarily Non-Judicial 2/2 Possible and Practical None
Hawaii Primarily Non-Judicial 3/4 Not Practical None
Idaho Non-Judicial 5/6 Possible and Practical None
Illinois Judicial 7/10 Possible and Practical None
Indiana Judicial 5/7 Possible and Practical 3 Months
Iowa Both 5/6 Not Practical 6 Months,if judicial
Kansas Judicial 4/4 Possible andPractical 6-12 Months
Kentucky Judicial 6/5 Possible and Practical None
Louisiana Judicial 2/6 Possible and Practical None
Maine Primarily Judicial 6/10 Possible and Practical None
Maryland Judicial 2/2 Possible and Practical None
Massachusetts Non-Judicial 3/4 Possible and Practical None
Michigan Both 2/2 Possible and Practical 6 Months
Minnesota Both 2/3 Not Practical 6 Months
Mississippi Primarily Non-Judicial 2/3 Possible and Practical None
Missouri Primarily Non-Judicial 2/2 Possible and Practical None
Montana Primarily Non-Judicial 5/5 Not Practical None
Nebraska Judicial 5/6 Possible and Practical None
Nevada Primarily Non-Judicial 4/4 Possible and Practical None
New Hampshire Primarily Non-Judicial 2/3 Possible and Practical None
New Jersey Judicial 3/10 Possible and Practical 10 Days
New Mexico Judicial 4/6 Possible and Practical None
New York Judicial 4/8 Possible and Practical None
North Carolina Non-Judicial 2/4 Possible and Practical None
North Dakota Judicial 3/5 Not Possible 60 Days
Ohio Judicial 5/7 Possible and Practical None
Oklahoma Primarily Judicial 4/7 Possible and Practical None
Oregon Non-Judicial 5/5 Not Practical None
Pennsylvania Judicial 3/9 Not Practical None
Rhode Island Both 2/3 Possible and Practical None
South Carolina Judicial 6/6 Not Practical None
Tennessee Non-Judicial 2/2 Possible and Practical None
Texas Non-Judicial 2/2 Possible and Practical None
Utah Both 4/5 Possible and Practical None
Vermont Both 7/10 Possible and Practical None
Virginia Non-Judicial 2/2 Possible and Practical None
Washington Non-Judicial 4/5 Not Practical None
West Virginia Non-Judicial 2/2 Possible and Practical None
Wisconsin Judicial varies/10 Not Practical None
Wyoming Non-Judicial 2/3 Possible and Practical 3 Months"

[ccsjoe]

Wantmypeace, After reading the general guide above you should know that CA is a non-judicial state, which means there is nothing filed with courts for a foreclosure, nothing requiring a judge's approval. Foreclosures are merely guided by the proper and timely filing and recording of documents with the county clerk in compliance with the state's civil code.

California also requires the sending and recording of a notice of default prior to anything.

[Wantmypeace]

So, if I'm reading this correctly, California is a non-judicial state where four months of non-payment are required to begin foreclosure and it generally takes four (MORE??) months to foreclose.

"It is important to note that each non-judicial foreclosure state has different procedures. Some do not require a Notice of Default, but start with a Notice of Sale. Others require only the publication of the Notice of Sale to announce the sale, with no direct owner notification required. You need to know the specific procedure for your state."

Does anyone know the SPECIFIC procedures for California?

[Wantmypeace]

We must have cross-posted! LOL! So, order of events? Notice of Default first, and then Notice of Sale? Or does CA require a notice of sale? Am I making this more complicated than it is?

[tobee43]

So, if I'm reading this correctly, California is a non-judicial state where four months of non-payment are required to begin foreclosure and it generally takes four (MORE??) months to foreclose.

"It is important to note that each non-judicial foreclosure state has different procedures. Some do not require a Notice of Default, but start with a Notice of Sale. Others require only the publication of the Notice of Sale to announce the sale, with no direct owner notification required. You need to know the specific procedure for your state."

Does anyone know the SPECIFIC procedures for California?

actually, many times it depends on the bank, on the country handling the foreclosure. the best way to tell is go to your sheriff's website to see how many foreclosures are going in your area.

some banks are quick about it...some have to do with location...it really does vary. so it's difficult to be exact and give a absolute answer to your question in that respect...but if anyone else knows more about ca...please chime in!

[ccsjoe]

I have posted this multilpe times before, but will do again.

In CA, typically after 90 days late you will be issued an NOD, which will be recorded with the county clerk and you will be mailed a copy. This is the "pre-foreclosure" stage. 60 to 90 after the lender will assign the trust deed to a servicer (recorded with the county) and the servicer will issue a Notice of Trustee Sale (recorded with the county clerk, mailed a copy to you AND posted on the property). The date of the sale itself must not be less than 21 days from the date of the notice. Upon arrival of sale day, investors and third parties gather round the auctioneer in the courthouse steps as he rattles off the list. The property is then sold to a third party OR reverts to lender (this is still a sale). New owner records the deed in their name and you're off the title.

Caveats: The above uses typical timelines. These no longer apply as who knows what lenders are doing these days. Lender may at their discretion postpone the date of the sale for any reason and any number of times provided the auctioneer receives said postponement prior to calling the property address aloud. Borrower may cure the default and stop the sale up to 72 hours prior to the date of the sale.

[tobee43]

I have posted this multilpe times before, but will do again.

In CA, typically after 90 days late you will be issued an NOD, which will be recorded with the county clerk and you will be mailed a copy. This is the "pre-foreclosure" stage. 60 to 90 after the lender will assign the trust deed to a servicer (recorded with the county) and the servicer will issue a Notice of Trustee Sale (recorded with the county clerk, mailed a copy to you AND posted on the property). The date of the sale itself must not be less than 21 days from the date of the notice. Upon arrival of sale day, investors and third parties gather round the auctioneer in the courthouse steps as he rattles off the list. The property is then sold to a third party OR reverts to lender (this is still a sale). New owner records the deed in their name and you're off the title.

Caveats: The above uses typical timelines. These no longer apply as who knows what lenders are doing these days. Lender may at their discretion postpone the date of the sale for any reason and any number of times provided the auctioneer receives said postponement prior to calling the property address aloud. Borrower may cure the default and stop the sale up to 72 hours prior to the date of the sale.

exactly....the above only lists typical...or a "general" guideline of what each state does.

[ccsjoe]

exactly....the above only lists typical...or a "general" guideline of what each state does.

Sorry tobee, but I'm not sure I understand your comment. This is the CA non-judicial procedure process with the variant being the timelines. OP is asking about sequence of events and regardless of timelines this event sequence normally does not vary as it is established in CA civil code.

[tobee43]

Sorry tobee, but I'm not sure I understand your comment. This is the CA non-judicial procedure process with the variant being the timelines. OP is asking about sequence of events and regardless of timelines this event sequence normally does not vary as it is established in CA civil code.

promise joe...i haven't been drinking yet...i thought you were referring to the general time lines listed above.

and although i understand it's done by civil code...i'm hard pressed to believe the codes are being used because of the general banking situation. they seemed and we are the perfect example...still NOT foreclosed even though there were basic and civil codes to have been addresses....no movement as yet. but calif sings to a different song in many cases!

[ccsjoe]

Now I understand. No, CA sings the code as is, however it is to the discretion of the lenders when to enforce each step, e.g. when to send NOD, when to assign deed to servicer, when to file Notice of Trustee Sale. That's where it seems things go haywire. The actual sequence of the steps remains the same otherwise the lender can get royally sued for failure to comply with the code. Now, how long in between your last payment and an NOD or between an NOD and a notoce of trustee sale is anyone's guess at this point.

[Wantmypeace]

In CA, typically after 90 days late you will be issued an NOD, which will be recorded with the county clerk and you will be mailed a copy. This is the "pre-foreclosure" stage. 60 to 90 after the lender will assign the trust deed to a servicer (recorded with the county) and the servicer will issue a Notice of Trustee Sale (recorded with the county clerk, mailed a copy to you AND posted on the property). The date of the sale itself must not be less than 21 days from the date of the notice. Upon arrival of sale day, investors and third parties gather round the auctioneer in the courthouse steps as he rattles off the list. The property is then sold to a third party OR reverts to lender (this is still a sale). New owner records the deed in their name and you're off the title.

Okay, so if I get this right, it's like this:

3 months late=NOD (I'll get a copy in the mail.)
2-3 MORE months=Notice of Trustee Sale (I'll get a copy AND they'll post something on my house? Can I take it down?)
21 days later (minimum)=Auction at the courthouse (new owner gets title)

What's the soonest after the house is sold that we can be required to vacate the house?

I understand that this timeline is "no less than," and could be longer because of the current mortgage mess. Essentially, I'm trying to figure out the soonest we would have to leave after missing a payment.

Thanks for all the help! Michelle

[Wantmypeace]

Now, how long in between your last payment and an NOD or between an NOD and a notoce of trustee sale is anyone's guess at this point.

But, the timeline you listed is the MINIMUM that would be legal, right?

I went to my Sheriff's site, and I can't find ANYTHING about foreclosures. Is there another name for the "process" that I'm missing. Not sure exactly what I'm looking for to find out what has been typical in my area...

[ccsjoe]

Okay, so if I get this right, it's like this:

3 months late=NOD (I'll get a copy in the mail.)
2-3 MORE months=Notice of Trustee Sale (I'll get a copy AND they'll post something on my house? Can I take it down?)
21 days later (minimum)=Auction at the courthouse (new owner gets title)

What's the soonest after the house is sold that we can be required to vacate the house?

I understand that this timeline is "no less than," and could be longer because of the current mortgage mess. Essentially, I'm trying to figure out the soonest we would have to leave after missing a payment.

Thanks for all the help! Michelle

Yes, you can take down the notice, generally it will be stapled or taped to the front door or garage door.

The soonest someone may make you leave the house: Assume 3 - 5 business days post sale date for instrument to record and become official. As soon as it is recorded, new owner can present you with a 3-day demand if you are the former owner. If you are a renter the timelines change drastically. If you refuse, new owner will then file an Unlawful Detainer suit against you, and unless you go through the motions of anwering motions, etc, he can get a judgement in as little as 30 days, present it to the Sheriff who would then show at your doorstep and give you 3 days to get out before they forcefully evict you.

[ccsjoe]

But, the timeline you listed is the MINIMUM that would be legal, right?

I went to my Sheriff's site, and I can't find ANYTHING about foreclosures. Is there another name for the "process" that I'm missing. Not sure exactly what I'm looking for to find out what has been typical in my area...

Yes, you will be safe assuming 90 days to NOD, then 60 to Notice of Sale as a minimum.

You shouldn't go to your Sheriff's site, they will only enforce a court judgement, nothing else. Google the California civil code, foreclosures.