What Is Foreclosure?
Foreclosure is the legal process by which a lender takes control of a property, evicts the homeowner and sells the home after a homeowner is unable to make full principal and interest payments on his or her mortgage, as stipulated in the mortgage contract.
The foreclosure process derives its legal basis from a mortgage or deed of trust contract, which gives the lender the right to use a property as collateral in case the buyer fails to uphold his or her repayment obligation.
As soon a borrower fails to make a loan or mortgage payment on time, the loan becomes delinquent. The foreclosure process begins when a borrower defaults or misses a loan or mortgage payment. At this point, a homeowner in default will be notified by the lender. Three to six months after the homeowner misses a mortgage payment, assuming the mortgage is still delinquent, and the homeowner has not made up the missed payments within a specified grace period, the lender will begin to foreclose. The further behind the borrower falls, the more difficult it becomes to catch up on payments because lenders add fees for payments that are late, often after 10 to 15 days.
The Foreclosure Process Varies by State
Each state has its laws governing the foreclosure process, including the notices a lender must post publicly, the homeowner’s options for bringing the loan current and avoiding foreclosure, as well as the timeline and process for selling the property.
A foreclosure, as in the actual act of a lender seizing a property, is typically the final step after a lengthy pre-foreclosure process, which can include several alternatives to foreclosure including many that can mediate a foreclosure’s negative consequences for both the buyer and the seller. As with foreclosures, states have their laws to handle this process.
In 22 states – including Florida, Illinois, and New York – judicial foreclosure is the norm, meaning the lender must go through the courts to get permission to foreclose by proving the borrower is delinquent. If the foreclosure is approved, the local sheriff auctions the property to the highest bidder to try to recoup what the bank is owed, or the bank becomes the owner and sells the property through the traditional route to recoup its loss. The entire judicial foreclosure process, from the borrower’s first, missed payment through the lender’s sale of the home, usually takes 480 to 700 days, according to the Mortgage Bankers Association.
The other 28 states – including Arizona, California, Georgia, and Texas – primarily use non-judicial foreclosure, also called the power of sale, which tends to be faster and does not go through the courts unless the homeowner sues the lender.
In some cases, to avoid foreclosing on a home, lenders will make adjustments to the borrower’s repayment schedule so that he/she can afford the payments and thus retain ownership. This situation is known as a special forbearance or mortgage modification.
If a property fails to sell at a foreclosure auction or if it otherwise never went through one, lenders — often banks — typically take ownership of the property and may add it to an accumulated portfolio of foreclosed properties, also called real-estate owned (REO). Foreclosed properties are typically easily accessible on banks’ websites. Such properties can be attractive to real estate investors because in some cases, banks sell them at a discount to their market value, which of course, in turn, negatively affects the lender.