West Virginia

West Virginia does both judicial and non judicial foreclosures.  As in most states where both options are available, the decision about the process will be used will depend on the language in the mortgage or deed of trust.  If the “power of sale” clause is written into the mortgage or deed of trust, then judicial foreclosure can be avoided.   This is by far more preferable to the bank because it moves the prcess along much quicker.  Choosing to follow a non judicial process is also in the lenders best interest because it saves them money.  The less the bank has to spend on resolving this problem, the better for them.   Should such a clause not be written into the mortgage or deed of trust, then the foreclosure must go through the court system.  This is referred to as judicial foreclosure and it is more costly to the bank in attorneys fees.  Time is a cost to the lender as well and judicial foreclosure takes a lot more time.  

In power of sale foreclosures, or non judicial foreclosures, sometimes the language in the mortgage or deed of trust specifies the time, place and terms of the sale. When this is the case, then that is the procedure which will be followed.

Barring such specifications, most out of court foreclosure proceed with a notice of sale being posted on the property itself and also on the front door of the courthouse for the county where the property is located.  This posting of the notice must be presented to the owner/borrower and anyone holding a junior or subordinate lien on the property.  These could include 2nd mortgages, 3rd mortgages or 4th mortgages.  People with trust deeds attached to the property, mechanics liens etc…

In addition to the distribution of these notices of sale, the lender must advertise the sale of the property in a newspaper.  The newespaper chosen for this part of the processmust have circulation in the county where the property is located.  The ad must be run once a week for four weeks prior to the sale date.  The time line for the notification of the home owner in trouble and the junior lien holders is 20 days prior to the sale.

The auction will be held as described in the notice of sale.  It must be a public auction.  This means of course, that anyone can bid for the property.  Even the home owner or a friend or relative of the home owner etc.. can do this.  The home will be awarded to the highest bidder.  At the time the winning bid is achieved, the bidder must be prepared to pay one third of that winning bid in cash.  This is an unusual requirement, but not unheard of.  Some states require the entire purchase must be paid in cash, at the time the winning bid is announced.

In West Virginia, there is no right of redemption period.  This is a time allowed in some states where the former home owner can regain ownership of the property by paying what was the winning bid price, plus some interest.  But, in West Virginia, once the sale is over there is no turning back, the winning bidder does not need to worry that if they put more money into the place or move into it etc… that, the money and effort use for that purpose will be wasted.  Conversely it means the original home owner had better do all they can to beat the clock so to speak, because once it is sold at auction, they are out of luck.

Also in West Virginia deficiency judgments are not allowed.  This is good news for the home owner or borrower.  It means that if the property is sold at auction for less than is owed on the home, then the lender or lenders cannot pursue the borrower for the funds that were not generated by the sale. In states where deficiency judgements are allowed this can be a big stress and worry for the person loosing their home to a foreclosure auction.  Just imagine how bad it would be to loose your home to the trustee's sale and still ave the bank sue you for more money.  Thanks West Virginia for standing up for the little guy here.

Integrity 1st Consulting is your Foreclosure  ebook specialist- Kathy Swift

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Integrity 1st Consulting is your Foreclosure specialist- Kathy Swift

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Judicial vs Non-judicial foreclosure in California?

I've read that a bank cannot garnish wages if the foreclosure was non-judicial. How do I determine what type of foreclosure has occured on a specific house.
Thanks for your response Sam. I don't currently own this house but without revealing too much detail, I was assisting in the payment of the mortgage. Now this guy is asking me to help with the garnishments. I won't get a straight answer from him. So I was hoping I could search through public records and find out.

if loan was last 5 years then probably non judicial. this should help

http://www.all-foreclosure.com/judicial.htm

Home foreclosure is a traumatic event and unfortunately today many homeowners are faced with the prospect of losing their family home. Nobody wants to be in a situation where foreclosure is inevitable; however there are strategies that you can employ to help save your home.

Strategy 1: Confront the Problem

If you can't afford your monthly mortgage payment, face up to it and recognize the problem and take the appropriate steps to deal with it. Avoiding the problem will compound the problem. Often people in a crisis wait too long before taking action – As soon as you are aware of the problem deal with it immediately. Read the rest of this entry »

Over recent years many Americans have used mortgage loans as an easy way out of a financial crisis, by using their homes as security. Yet, irresponsible mortgage management can lead to the foreclosure of your home, if you are not careful. Here are some tips that you may find useful in developing a plan to stop foreclosure and to protect your home from creditors.

Consult the experts

Good advice before applying for a mortgage loan is to consult experts like real estate brokers and financial advisers are well informed when it comes to the best deals by different lenders, as well as information about the mortgage itself. They can inform you of the contractual agreements and will be able to organize them for you; they can inform you of maturity dates, interest rates and also possible ways to extend the deadline to avoid foreclosure.

Consult a financial adviser who can analyze your financial situation, as well as the purpose of the loan, and will determine the amount that you may safely borrow from the lender. The real estate brokers can inform you of the best deals in town, since they have numerous contacts with different companies. With these two working hand in hand, they can easily help you out in organizing your mortgage loan and avoiding foreclosure.

Borrow Prudently

If you go through the loan without the help of real estate brokers or financial advisers, then you should be careful with the amount that you intend to borrow. It is a common fact that most properties were foreclosed due to irresponsible borrowers and reckless lending by mortgage lenders who loaned ludicrous amounts of money without adequately assessing the ability of the lender to repay the loan. Unfortunately many of these are likely to lose their family homes in coming months.

Try to avoid the temptation of going for a large loan. If you are planning to use it to refinance a business or for home improvements purposes then you better analyze your current financial status if you can pay the amount on the maturity date. Always ensure you ability to repay the loan.

Also, try to shop around for the best deals in town. The internet is a good source of information for various lenders in your area; try to look for a lender with the lowest possible interest rate since one of the factors resulting in foreclosures is an unfordable high interest rate.

Know the paperwork

There are two kinds of paperwork that can help you avoid foreclosure of your home: one is the promissory note, and the second is the deed of trust or lien.

The borrower can make a promissory note when they fail to pay the full amount on the maturity date. The note usually contains the request of the borrower from the lender to extend the maturity date of the remaining amount, the maturity date, and remaining unpaid amount and of course, the interest rate. Obviously the lender will have to agree to this. This is quite useful if you don't want your property to be foreclosed for not paying the full amount.

A deed of trust is simply an attached document, which serves as a security interest by the borrower to the lender to be able to pay for a certain debt or a loan. Usually, a deed of trust is considered a lien rather than a stipulation stating a transfer of title of the property from the borrower to the lender. Lenders usually prefer a deed of trust as it enables them to expedite the foreclosure process from 1 year to about 3 months.

Communicate With Your Mortgage Lender

A very important tip is to always try to keep the channels communication between the lender and the borrower open. Doing so will not only improve the relationship between the two, as well as gain the trust of the lender, especially if you experience a short-term problem.

Another practical reason for opening a communication line with the lender is to receive updates regarding the mortgage and foreclosure. By doing so, you will be well informed regarding various stipulations of the mortgage and avoiding foreclosure.

It is very important for the borrower to pay attention to all the details when it comes to acquiring a mortgage; not only would you be well informed of the various facets of the contract, as well organizing your mortgage to avoid a possible foreclosure of your property. Many properties are currently being foreclosed and one of the best ways to avoid this is to be familiar with and understand the various documents relating to your mortgage loan.

If you are a homeowner who is on the brink of foreclosure or if your lender has already started the proceedings, you may not know where to turn.If you are limited on financial resources you may be unable to hire a lawyer to provide you with expert advice.Although nothing is better than professional help, you can turn to the internet.

When using the internet to find advice about foreclosure or to learn what your rights as a homeowner are, visit the website of your state.This should be the official website.Perform a search on the site for information on foreclosures.

You should be provided with information on foreclosure laws in your state of residence, as well as detailed information on the process works. This information may also be available from other sources online, but you know the information is accurate and up-to-date when you get it directly from the source.

Another type of website that you may want to checkout is that of foreclosure attorneys or those who specialize in real estate. Many lawyers will share important foreclosure information and tips on their websites, available to you free of charge.

For example, a current search of foreclosure attorneys will tell you that in some states foreclosure can be stopped right in its tracks when bankruptcy is declared. Although not all attorneys are willing to divulge all of their secrets, you may be surprised how much information you can find online.

The internet can also be used to help you find and hire a lawyer. As previously stated, those facing foreclosure don't always have the financial resources needed to hire a lawyer, but there are ways around this. Some lawyers will accept cases pro bono and others will work out a payment agreement with you.

As for when you should hire an attorney, you should do so if you fall victim to a foreclosure scam or if you believe that your lender is treating you unfairly and illegally. As a reminder, lawyers specializing in real estate and foreclosures are recommended.

Credit counseling websites are another resource that you can find available online. This is a controversial and sometimes risky approach, but help may be out there for you. Some credit counseling companies may try to work with your lender for you.

This may result in more affordable monthly mortgage payments for you. With that in mind, there are many scams that surround these companies, even those that claim to be non-profit organizations. For that reason, do the proper amount of research online first or check with the Better Business Bureau (BBB).

The website for the United States Department of Housing and Urban Development (HUD) should be visited as well. There you will find a lot of information that is not only from a reliable source, but accurate. This website can be found at HUD.gov.

There, you can not only review your options before, during, and after foreclosure, but you can be connected to valuable resources, including a HUD approved housing counselor.

Also online, you will find a number of websites that are operated by individuals just like yourself. Many have dealt with foreclosures firsthand, some came out on top, while others didn't.

These types of websites can be used to provide you with valuable resources, as well as support. Hearing how to deal with foreclosure firsthand, through someone who has been there before, may be a source of comfort for you.

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