How To Stop Non-judicial Foreclosure Using The CourtAugust 28th, 2009
Author: admin
Non-judicial foreclosure happens without the court or legal system and any legal statutes in terms of proceedings for foreclosure. Though it might sound as if it's almost impossible for the court system to directly intervene with the proceedings of a non-judicial foreclosure; knowing the details about this kind of foreclosure might give you enough grounds to bring it to legal light.
Non-Judicial Foreclosure
In a non-judicial foreclosure, the lender has the power to impose its authority on the said property once it is foreclosed through the use of the power of sale clause. The mortgage holder, or the lender, will have the ability to make use of the said property to pay off the debt of the borrower by means of a sale or simply putting an embargo on it.
Since there is no legal statute in the transaction between the lender and the borrower, the contract will simply have the essence of authorized in any way the lender might see fit to exercise his or her power over the foreclosed property. In a way, you are simply telling the lender that you are selling the property in advance without any recourse whatsoever.
Check the contract carefully
It is always important for the borrower to read the contract or the agreement carefully before signing a mortgage with a lender; the borrower should take note of clauses and stipulations giving the lender full authority of the property and the like. Take note of the maturity date, interest rates, and hidden fees that the lender might have inserted in the contract.
Grounds to bring non-judicial foreclosure to court
It is true that a non-judicial foreclosure is definitely outside the ambit of the courts and the law since the agreement is between the lender and the borrower, but is also possible for the borrower to bring this foreclosure by power of sale into legal hands.
For the side of the lender, it is almost impossible to bring the matter into court since it's almost impossible to sue a borrower for repayment of the said property. But the borrower may, or may not, have the capability to vie for a court hearing even if the foreclosure is non-judicial.
It is important to know the process concerning the foreclosure of a property in non-judicial terms, like the time frame for the issuance of notices to the actual auction of the sale. If the lender has breached certain aspects of the process then you may bring that up to court to file a Temporary Restraining Order (TRO) on the lender to stop the foreclosure or sale of the said property.
If you are not sure if it is possible to bring to court a non-judicial foreclosure then you may need to consult with someone who is knowledgeable about the working of the law when it comes to mortgage and foreclosure. Consulting a lawyer or a financial adviser regarding the state of your foreclosed property and possible grounds to bring to court to enjoin the foreclosure would be your best bet in the situation.
How A TRO works:
When you have successfully uncovered some grounds to bring the non-judicial foreclosure to court then an issuance of a Temporary Restraining Order (TRO) will be inevitable.
A TRO is a kind of court order stopping the lender from foreclosing the property for a short period of time, usually around 2 weeks or so while the court is conducting a formal hearing on the matter. Under the context of a pending foreclosure, the TRO will enjoin the trustee and the lender from continuing with any non-judicial foreclosure to the property of the borrower until further evidences show the invalidity of the borrowers lawsuit.
Non-Judicial to Judicial
It is true that a non-judicial foreclosure will leave the court out of the transaction, but if the borrower pushes through with the lawsuit when they have sufficient grounds for one will practically turn it into judicial in a blink of an eye.
Since most lenders will opt for a non-judicial foreclosure to save costs in processes and fees that accompanies the said transaction, turning it into a judicial foreclosure will add some more costs to both the borrower and the lender.
