Judicial Foreclosure Available: Yes
Non judicial Foreclosure Available: Yes
Alabama allows foreclosure in one of three ways:
Foreclosure by filing a lawsuit seeking a court order to foreclose is not common. Methods two and three are more commonly used.
The sale may not take place until 30 days after publishing an advance notice of the time, place and terms of the sale once a week for four consecutive weeks. The notice must be published in the county in which the property is located.
If the mortgage or deed of trust contains a power of sale clause and specifies the time, place and manner of the foreclosure sale, then that procedure must be followed.
However, if the mortgage or deed of trust with a power of sale clause is silent as to the place of terms of the sale, or as to the type of notice of the sale, then a foreclosure sale may be made at the courthouse door of the country where the property is located, after a breach of the conditions or requirements of the mortgage, or deed of trust, by selling for cash to the highest bidder. However, in the case of a sale under a mortgagee or deed of trust with a power of sale clause, a foreclosure deed conveys the title.
If the mortgage or deed of trust lacks a power of sale clause and the lender chooses not to file a lawsuit to foreclose, then the lender may foreclose by selling the property for cash to the highest bidder at the courthouse door in the county where the property is located. Advance notice of the time, place, terms and purpose of the sale must be given by publishing an ad once a week for four consecutive weeks in a newspaper in the county where the property is located.
The lender may sue to foreclose the mortgage without filing a suit to obtain a deficiency judgment. Alternatively, the lender may sue to foreclose, and then sue for any resulting deficiency. It is the lender’s choice.
The borrower has a right to redeem within one year after the foreclosure. Anyone who wants to redeem should obtain a statement of the price paid for the property at the foreclosure sale from whoever bought the property at the foreclosure sale. The borrower can then redeem the property by paying the purchase price, taxes, insurance, improvements and ten percent interests on the price and all other the legitimate charges to the purchaser. If necessary, the borrower can sue in the circuit court to redeem the property.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes
Alaska offers two ways to borrow money against real estate, a true mortgage, and a deed of trust. The true mortgage may be foreclosed in Superior Court, according to the rules of equity. The deed of trust names the trustee who will oversee the foreclosure sale by recording and posting a notice of sale and arranging an auction to the highest bidder. Alaska law provides a procedure to appoint a substitute trustee by recording a proper notice of the appointment.
Non-judicial deed of trust sale.
The deed of trust must be foreclosed according to its own terms, provided those terms are consistent with the minimum protections of Alaska ’s laws.
Not less than 30 days after the default and not less than three months before the sale, the trust will record notice of default stating the name of the borrower and the book and page where the trust deed is recorded. It must describe the property, the borrower’s default, the amount the borrower owes, and the trustee’s desire to sell. It must give the date, time and place of the sale.
Within ten days after recording the notice of default, the trustee must mail a copy of the same by certified mail to the last know address of (1) the borrower, and (2) any person whose claim or lien on the property appears of record or is known to the lender of trustee and (3) any occupant. The trustee may have the notice delivered personally instead of sending it by certified mail.
Any time before the sale, the borrower may cure the default and stop the sale by paying a sum equal to the missed payments plus attorney’s fees. The lender may not require the borrower to pay off the entire remaining principal balance of the loan to cure the default, just the missed payments and attorney’s fees. If the lender has recorded a notice of default two or more times, then the Alaska statutes provide that the lender can refuse to accept the borrower’s monies for the missed payments and attorney’s fees and proceed with the foreclosure sale instead.
Place of Sale
The front door of the Superior Court for the judicial district where the property is located, unless the deed of trust specifies another location.
The trustee can conduct the auction or bring in an auctioneer to call out the sale.
The trustee can postpone the sale by giving the person who conducts the sale a signed and written postponement request moving the foreclosure to a different time and place, which must be publicly announced at the time and place originally fixed for the sale.
The trustee must sell to the highest and best bidder. The lender may bid at auction. The trustee’s deed must give the book and page where both the original deed trust and the default notice were recorded. It must state the notice of default was property mailed. It must give the time, place and manner in which the foreclosure sale was conducted, and the amount paid for the property at foreclosure. After the sale, the trustee must record an affidavit that the notice of default was property mailed.
If the lender forecloses by means of an out-of-court foreclosure sale under a deed of trust, then the borrower has the right to redeem the property. However, the borrower does have the right to redeem if the sale was the result of a lawsuit and a court order commanding the sale.
Judicial foreclosure permits a deficiency suit. However, if the lender forecloses through an out-of-court foreclosure sale under the deed of trust, then the lender may not sue for a deficiency judgment afterward.
Judicial foreclosure available: Yes
Non-judicial foreclosure available: Yes
A trustee may conduct the foreclosure sale out of court under a power of sale clause if the borrower defaults on the loan. Alternatively, a trustee (or the lender) may sue to foreclose. A trustee may also sue the borrower for physical abuse to the property, waste, or other impairment of the security, but only so long as the borrower was in possession or control of the property when the damage was done. The trustee cannot conduct a foreclosure sale under the power of sale clause until a lawsuit to foreclose is dismissed. Under Arizona law, a bank, trust company, Savings & Loan or other institutional lender can be a trustee. Arizona licensed attorneys, real estate brokers, and insurance agents can also be trustees. The lender for any reason may appoint a substitute trustee if they record a Notice of Substitution of Trustee and mail a copy to the borrower. A trustee may resign by recording a Notice of Resignation of Trustee.
The trustee will give written notice of the time and place of sale including legal description of the property, by each of several methods.
The trustee must record a notice of the sale in the county recorder’s office in the county where the property is located.
Once a week for four consecutive weeks, the notice must appear in a newspaper in the county where the property is located. The last notice must be published not less than ten days prior to the date of the sale.
(1) If it can be done without a breach of the peace, the trustee can post the notice at least 20 days prior to the date of the sale, in some conspicuous place on the property to be sold. (2) He or she can post the notice at the courthouse or at a specified place at the place of business of the trustee in the county in which the property is located.
The trustee or lender must mail, within five days after recording the notice of sale, by certified mail, a copy of any notice of sale to each of the persons who are parties to the trust deed except the trustee. It must be addressed to the mailing address specific in the trust deed. The notice must set for the nature of the borrower’s breach or nonperformance under the trust deed. In addition, any person will be entitled to receive a copy of the trustee’s foreclosure notice if such a person records a statutory Request for Notice form.
For a fee up to $20, the trustee can provide information on the unpaid balance, the name and address of the owner, the date the trustee’s notice was recorded and a list of encumbrances. A trustee must honor a written request, and may honor an oral request.
Time and Place
The time and place of the foreclosure must be designated in the notice of sale.
The trustee or the trustee’s agent must conduct the sale. The sale is for cash to the highest bidder, except that the lender can make a "credit bid," which means to cancel out some part (or all) of the money the borrower owed the lender on the lean, instead of paying cash. A successful high bidder must pay the bid price by 5p.m. of the day after the bid, other than a Saturday or legal holiday. Every bid is an irrevocable offer until the sale is completed, which happens when the bidder pays the bid price to the trustee’s satisfaction. If the high bidder fails to make the payment b 5:00 p.m. , the day after being notified of the option to buy, then the trustee may postpone the sale.
The trustee may postpone the sale to another time, or another place, by giving notice of the new date, time and place by public declaration at the last place and time the property was offered for sale. No other notice is required. A trustee may also, by written agreement, extend the time for a buyer to come up with the payment.
The sale proceeds will go to the payment of the obligations secured by the trust deed that was foreclosed, then to junior lien holders in order of their priority. The successful bidder gets a trustee’s deed, which constitutes conclusive evidence that the trustee conducted the foreclosure sale property.
An Arizona deed of trust permits the real estate that is the collateral for a loan to be sold at a foreclosure sale by a trustee. The proceeds of the sale will be paid to the lender, or the lender can take title to the property and cancel out the debt in exchange for the deed, called a "credit bid." Under a new Arizona law, a lender may not bring a subsequent deficiency suit against a person who lost a property that is 2.5 acres or less at a foreclosure, provided the property was a single one-family or a single two-family dwelling. This is so even if the high bid at foreclosure was less that the balance due on the loan. In foreclosures against other types of property, a deficiency is limited to the difference between the balance owed and the fair market value of the property, and then only if the suit is brought within 90 days of the power of sale foreclosure.
Arizona does not recognize a subsequent right of redemption on foreclosure sales.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes
Under Arkansas law, a residential real property mortgage held by a bank, savings and loan or mortgage company may be foreclosed under a power of sale clause in the mortgage. Agricultural real property or construction loans operate by different rules.
Contents of Notice
The Notice of default and Intention to sell must name the deed of trust parties, give recordings information, describe the default and the amount due on the loan and state the trustee’s or lender’s intention to undertake a foreclosure sale. The notice must include in conspicuous type the following warning:
The notice of default and intention to sell must be published once a week for four consecutive weeks prior to the date of the sale in a newspaper of general circulation in the county where the property is located. The final publication must be no more than ten days before the sale.
The notice must be mailed to the borrower by certified mail to the last address the lender knows of writing ten days after recording the notice. This includes any borrower of record or of whom the lender has actual notice. The notice must also be mailed to anyone who records a Request for Notice that specifically described the mortgagee including its recording information.
The lender must record a copy of the Notice of Default and Intention to Sell.
An appraisement of the property must be made before foreclosure day. The justice of the peace for the country in which the property is located must appoint three disinterested householders of the county where the property. The appraisers must take an oath that they will ‘well and truly view’ and appraise the property that may be shown to them. The appraisers must then view and appraise the property, and then all or any two of them must write an appraisal report and deliver the same to the person holding the foreclosure sale. The person conducting the sale must make it available to any interested party. For their services, the appraisers are paid $1 which comes from the proceeds of the foreclosure.
In any foreclosure under a mortgage or deed of trust in Arkansas , the property must sell for not less than two-thirds of the appraised value. If it does not, then it may be offered for sale within 12 months. The second sale may be to the highest bidder without reference to the appraisement.
The attorney for the mortgage or trustee may conduct the sale and act as the auctioneer. The foreclosure sale must take place at the time, date and place specified in the notice of Default and Intention to Sell, but the sale must be within certain limits.
It must be held between 9:00 a.m. and 4:00 p.m. on a week day, and not on a Saturday, Sunday or legal holiday.
It must be held at either the property being foreclosed on or the front door of the county courthouse where the property is located.
Any person including the mortgagee (lender) may bid at the sale, except the trustee, who may bid on the behalf of the beneficiary (lender) but not for himself or herself in deed of trust sales. The high bidder must pay the price bid at the time of sale, or within ten days. The lender may bid by canceling out what it is owed on the loan, including unpaid taxes, insurance, costs or sale and maintenance, but for cash for any higher price. The mortgage or trustee will execute and deliver a trustee’s deed to the high bid purchaser.
The sale may be postponed by public proclamation at the time, place and date last appointed for sale, up to seven days past the original date, but if for a longer time, then the whole notice procedure must be performed a second time, including the 60-day wait.
The purchaser may obtain possession once the deed is recorded. The occupant of the foreclosed premises becomes a tenant at sufferance against whom the purchases may use a writ of assistance, if necessary, to effect the eviction.
The proceeds of the sale will be applied as follows: (1) to pay the expenses of the sale; (2) to the debt owed; (3) to any recorded lien holders in the order of their priority, and; (4) to the original borrower.
Within ten days after the sale, the trustee or mortgagee will file an affidavit stating that a sale was made in accordance with the law, including the time, place and date of the sale, and the purchase price. A copy must be mailed to all persons entitled to receive notice of the foreclosure as described earlier.
In judicial foreclosure, a court decrees the amount of the indebtedness of the borrower and gives him or her a short time to pay. If the borrower fails to pay within that time, then the clerk of the court, as commissioner, advertises the property for sale. Sales of real property under court order will be on a credit of not less than three months not more than six months, or on installments to not more than four months credit overall. To secure payment, a lien will be retained on the property for its price. The purchaser must further give a bond with surety for the purchase price. The lender may bid at the sale. The lender can bid by crediting a portion (or all) of the amount the court found was owed to the lender against the sales price of the property purchased at the foreclosure sale. If the real estate does not sell for an amount equal to what’s due on the mortgage loan, then the lender may seize other property from the borrower as in an ordinary judgment.
The lender may sue the borrower for a deficiency within 12 months of a power of sale clause foreclosure. The lender may sue for (1) the difference between the foreclosure sale price and the balance due on the loan, or (2) the balance due on the loan minus the fair market value of the property, whichever is less.
When property is sold under a chancery court order, the borrower has one year from the date of the sale to redeem the property by payment of the amount for which the property was sold plus interest. However, the mortgagor may waive the right of redemption in a mortgage or deed of trust. In the case of a deed of trust or mortgagee’s sale under a power of sale clause, as described earlier, the borrower is not entitled to a right of redemption.