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Trustee Sale vs. Judicial Foreclosure

Trustee Sale vs. Judicial Foreclosure

The word has become a common part of the real estate lexicon over the past several years – foreclosure. But in some states, Arizona among them, few homeowners are losing their homes to foreclosure. Instead, lenders are using Notices of Default and trustee’s sale to take back homes from owners who have fallen behind on their mortgage payments.

Judicial Foreclosure and Trustee’s Sale Defined

In a judicial foreclosure, a homeowner is served physically with legal papers indicating the lender’s intention to cancel the loan and retake the property. Once the process begins, the only records for the homeowner are to pay off (or redeem) the full amount of the loan. Owners have up to six months from the conclusion of the judicial foreclosure to redeem the loan, meaning lenders who utilize this route have to wait six months after retaking a property to do anything further with it.

Trustee’s sales are decidedly different. In a trustee’s sale, the lender files a Notice of Default – in Arizona this is done at the county recorder – and notice is posted on the property indicating a trustee’s sale will be held at least 90 days later, generally but not always at the county courthouse steps.

Unlike a foreclosure where the homeowners lone recourse is to redeem the full amount of the loan, an owner can stop a trustee’s sale simply by getting current on his or her mortgage payments plus any interest and fees that have been added along the way. A homeowner can do this at any time up to the posted time of the trustee’s sale and the entire process comes to a halt.

Differences Beyond Semantics

While in some ways judicial foreclosures and trustee’s sales are two versions of the same thing, or at least are two items with a common end goal, the particulars and their impact on a homeowner are very different. Few homeowners already behind on their payments are going to be able to pay off the full amount of the loan in order to redeem the loan and regain the property. Reinstating a loan by paying only the payments that were missed, as is possible in a trustee’s sale, also can be daunting but is decidedly less so.

Fortunately, when given the choice most lenders opt for the trustee’s sale over a judicial foreclosure because there’s more flexibility for the bank as well. Notices of default can be recorded with little effort and the homeowners don’t have to be physically served with notice. In addition, a lender in theory can put a home on the market the day after a trustee’s sale rather than remaining in limbo through a required six-month redemption period.

Both judicial foreclosures and trustee’s sales will have considerable impact on a homeowners’ credit scores and ability to finance future property purchase. They also can have tax consequences. It’s highly recommended a homeowner facing either situation consult with a real estate and/or tax attorney.

Buying Foreclosed Property at Auction

In the United States, after a court enters a judgment of foreclosure in favor of a mortgage lender, the sheriff of the county where the property is located or another officer of the court will hold a public auction to sell the property so that the mortgage debt can be paid. The officer who will conduct the auction will require all bidders to prove that they have the funds to complete the purchase.

Foreclosure Listings

Notice of the auction is published in local newspapers, and lists of properties being auctioned on a particular day should be available from the office of the county clerk or the sheriff.

Other interested parties, such as holders of second and third mortgages, may be present at the auction because the foreclosing lender must notify all lien holders of the auction.

Sheriff’s Sale/Foreclosure Auction

In many states, the lender makes the opening bid. This is a formality that usually sets the unpaid balance of the mortgage as the base price for the start of the bidding. Bankruptcy filings and other factors may result in the lender bidding less than the balance due.

The officer who conducts the auction will award a deed to the successful bidder, who then becomes the new owner of the property. The next step is to have the court confirm the sale. This means that the court determines whether the sale was conducted fairly and in accordance with the applicable laws and regulations; state law dictates whether confirmation takes place a few days or a few weeks after the auction.

Potential Problems for Real Estate Investors

Not knowing market value . Because investors cannot evaluate the potential of a property if they do not know the market value of that property, it is imperative that investors familiarize themselves with the prices at which similar properties have recently sold in the area. By knowing what similar properties go for in the neighborhood, investors have a yardstick by which to calculate what is a reasonable price to pay for a distressed property at auction.

Getting occupants out. In states where mortgages are created to evidence purchase-money loans, homeowners may stay in their homes for as long as a year, depending on what the law provides. In states where trust deeds are used instead of mortgages, a homeowner must vacate the property before the sale of the property by the trustee, usually fewer than four months.

As the new owner of the property, it is up to the successful bidder to get rid of whomever is occupying the property. The occupants may not be the former homeowner and family and instead may be relatives of the former owner, renters, or even squatters. The occupants may be reluctant to vacate the property. They may even be hostile.

To evict the occupants, the investor may have to hire an attorney for the court proceedings. A better course may be to offer the occupants an incentive to leave, such as paying the moving expenses or one or two months of storage fees, or an outright cash payment.

For more on what can go wrong for a successful bidder when the foreclosed property is occupied, see this article by Elizabeth Weintraub.

Emptying and cleaning the property. In addition to removing the occupants from the property, the successful bidder will have to empty the property of items left behind and of no value. Related to this is cleaning the property. Occupants who were reluctant to leave may have left the property dirty and full of trash and useless items. They may even have damaged the property.

Having insufficient resources. Bidders at foreclosure sales often are not allowed to inspect the property before the sale. This makes it necessary to guess how many repairs, improvements, and updates are needed and what it will cost to make the property legally habitable and marketable; in short, the return on investment cannot be calculated with any certainty. Buying property with this much uncertainty is inadvisable not only for inexperienced investors but also for those whose real estate investment plans do not support such high-stakes risks.