Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No
The Ohio standard mortgage provides for a conditional transfer of title to the lender. If the borrower pays the principal and interest; performs the obligations of the mortgage, including payment of taxes, assessments and hazard insurance and does not commit waste, then the borrower will obtain full title at the end of the mortgage term. Ohio mortgages must be foreclosed by court action.
The lender must sue the borrower in the county where the property is located. The lender must ask the court to foreclose the mortgage and order a sale of the property.
When land is to be sold under a foreclosure order, the officer conducting the sale shall call upon three disinterested freeholders of the county to give an estimate of the value of the property. A copy of the appraised value must be left with the court clerk. The property must forthwith be offered for sale at a price of not less than two-thirds of the appraisement.
The land will not be sold until the officer handling the foreclosure gives public notice of the sale by advertising the time and place of the sale at least 30 days in advance of the sale. The advertisements will be sufficient if they are published once a week for three consecutive weeks before the day of the sale, with each ad on the same day of the week.
The sheriff handles foreclosure sales in Ohio . The officer will sell to the highest bidder at the time and place indicated in the advertised notice. The sale must take place at the courthouse. If the bidder fails to pay the price, the court "shall punish as for contempt any purchaser of real property who fails to pay the purchase money therefore." If there is no sale for lack of bidders, then the court may order a new appraisement and order the sale for one-third in cash and the balance later.
The sheriff returns the writ of execution indicating that a sale was made to the court, which upon examination of the sale proceedings to make sure they were in conformity with the law and with the court orders, enters into its records a confirmation of the legality of the sale and directs the officer who made the sale to create and deliver the purchaser a deed for the property.
If the property is in danger of being damaged the court may appoint a receiver to take charge of it.
A deficiency judgment may be obtained by the lender along with the order commanding a foreclosure sale. The deficiency is void two years after the foreclosure sale is confirmed. However, the enforcement may continue if the debtor signs an agreement to postpone the enforcement past two years.
The debtor can redeem by paying the amount of the judgment plus costs and interest up until the confirmation of the sale, but not afterward.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes
In Oklahoma both judicial and non-judicial foreclosures are available. The judicial sales are governed by the age-old principles of common-law equity, and some statutes. The non-judicial sales are governed by the Oklahoma Power of Sale Mortgage Foreclosure Act, which was passed in 1986. However, the lender who chooses the non-judicial route will effectively give up the right to sue for a deficiency if the foreclosure involves homestead property. Moreover, a borrower may force the lender into judicial foreclosure if the property involved is a homestead by recording and then mailing a written notice to the lender 10 days before the foreclosure sale claiming the property as homestead. At that point, only judicial foreclosure may be used. This right is not available on other types of property.
Mortgages on real estate can be foreclosed by filing a lawsuit under principles of equity in the District Court of the county where the land is located. If there has been a default by the borrower in meeting the requirements of the loan, such as not paying the payments, then the court will order a foreclosure sale. The price may be determined through a special appraisal procedure. Unless the borrower waives the right to an appraisal in the mortgage, the property must be appraised before it can be sold at foreclosure. At the foreclosure sale, the property may not be sold for less than two-thirds of the appraised value.
The impending foreclosure sale must be advertised at least 30 days in advance of the sale.
Mortgages that can be foreclosed out of court must include the following statement, in bold and underlined type:
A power of sale has been granted in this mortgage.
A power of sale may allow the mortgagee (lender) to take the mortgaged property and sell it without going to court in a foreclosure action upon default by the mortgagor under this mortgage.
A written notice of intention to foreclose by power of sale must be sent by certified mail to the borrower at the borrower's last known address. The notice shall describe the defaults of the borrower under the loan, and give the borrower 35 days from the date the notice is sent to cure the problem. If the borrower comes up with the missed payments during the 35 days, then the foreclosure can be stopped. It cannot be accelerated. However, if there have been three defaults, then the lender need not send another notice of intent to foreclose, and if the borrower has been in default four times in the past 24 months, and has been notified as above, then no further notice will be required to accelerate.
The notice must describe in detail the nature of the borrower's default on the loan.
The lender's notice informs the borrower that if the house is the borrower's homestead, then the borrower has ten days to elect judicial foreclosure or else face out-of-court foreclosure under a power of sale clause.
The notice must be published once a day for four consecutive weeks, but the first date must be not less than 30 days before sale.
The notice, plus an affidavit confirming the validity of the trustee's procedures, must be recorded within ten days after the borrower has gone through the 35-day notice period.
The borrower must be served with the papers advising the buyer of the default. They should be served in the same manner as for court. These papers should not only be served, but the wise lender will preserve proof of receipt, return of service or an affidavit in lieu of personal service, along with proof of publication. All of these affidavits and a copy of the notice must be recorded.
Time and Place
The time and place of the sale must be specified in the notice of foreclosure.
The property will be sold at public auction to the highest bidder. If a purchaser at a foreclosure sale other than the borrower fails to post cash or certified funds equal to 10 percent of the bid amount, then the lender may proceed with the sale and accept the next highest bid.
Once the court confirms a foreclosure sale there can be no redemption. There is no right of redemption on power of sale foreclosures either, although the borrower has the right to redeem until the foreclosure sale.
A lender may sue judicially to obtain a deficiency judgment. Also, under the Oklahoma Power of Sale Mortgage Foreclosure Act, any action for a deficiency must be commenced within 90 days after the date of sale. In such event the lender shall establish that the fair market value of the property on the date of the foreclosure sale exceeded the foreclosure sale price. If it did, then the higher figure must be credited against the balance due on the loan. If the house is the borrower's homestead, and the borrower elects judicial foreclosure, the borrower may be hit with a deficiency suit. On the other hand, if the borrower does nothing, then the lender cannot sue for a deficiency.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: Yes
Foreclosure in Oregon may be either by court action or by advertisement and sale, if there is a default.
The trustee must record a notice of default.
The notice of sale should include a property description, recording information on the trust deed, a description of the default, the sum owing on the loan, the lender's election to sell and the date, time and place of sale.
After recording the Notice of Default and at least 120 days before the foreclosure sale, notice of the sale must be either served or mailed by both first class and certified mail to the borrower, the Department of Revenue, any owner of record and any person requesting notice.
A copy of the notice of sale must be served on the occupant of the property 120 days before the foreclosure sale day.
A copy of the notice must be published once a week for four successive weeks. The last publication must be made at least 20 days prior to the foreclosure sale day. The trustee must prepare and record an affidavit slating that the proper notices and advertising have been given.
The borrower, or any junior lien holder or claimant may cure the default prior to foreclosure by paying all past due sums plus costs, which would be the missed payments and costs. On a residential trust deed foreclosure, the borrower may be charged the lesser of the actual charges or a total of $550 for trustee's and attorney's fees. Reasonable charges may be made for other foreclosures.
The date shall be the date given in the notice.
The sale must be conducted between 9 a.m. and 4 p.m. at a place designated in the notice.
The sale must be at auction to the highest bidder for cash. Any person, including the lender but excluding the trustee, may bid at the foreclosure sale. The purchaser must pay the bid price at the time of the sale. The trustee must give the buyer a deed within ten days. The buyer is also entitled to possession within ten days. The sale may be postponed, up to 180 days, provided 20 days' advance notice is given by mail to the same persons as the original notice. A new time and place must be specified.
If the foreclosure is stayed by bankruptcy, the trustee may give an amended notice of sale and sell the property with only 20 days' notice as soon as the bankruptcy stay is lifted.
A deficiency judgment cannot be obtained through a non-judicial deed of trust foreclosure by advertisement. On commercial property secured by a trust deed, a deficiency judgment can be obtained by filing suit, but not on property covered by a purchase money mortgage. A purchase money mortgage is any mortgage where the unpaid balance is $50,000 on a primary or secondary single family residence. There are no other particular limits on deficiency judgments.
A person who was entitled to receive notice of the foreclosure but did not receive it may sue to invalidate the foreclosure and redeem the property for a period of five years following the sale. On a judicial foreclosure, the borrower or a successor in interest may redeem property within 180 days after sale by paying the purchase price plus 9 percent plus the foreclosure purchaser's expenses in operating and maintaining the property. A notice of no less than 2 nor more than 30 days must be given to the sheriff to redeem. There are restrictions on redemption rights if the borrower has transferred the property.