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Home Foreclosures: Oklahoma

Okla. Stat. tit. 12, §§ 686, 764 to 765, 773; Okla. Stat. tit. 46, §§ 41 to 49

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: Yes, but may not be used against a homestead, if the homeowner chooses to require judicial foreclosure, nor may it be used to foreclose a lien for an extension of credit primarily for agricultural purposes. Judgment is required. Okla. Stat. tit. 46, §§ 41, 43(A)(2).

Home Foreclosures: Oregon

Or. Rev. Stat. §§ 86.705 to 86.815

Most Common Method of Foreclosure: Power of sale for deeds of trust.

Preforeclosure Notice:

Number of Notices: Two; notice of default (§ 86.752) and notice of sale (§ 86.764). Notice of default must be recorded.

Home Foreclosures: Pennsylvania

35 Pa. Cons. Stat. §§ 1680.402c to 1680.409c; 41 Pa. Cons. Stat. §§ 403 to 404; Pa. R. Civ. P. 1141 to 1150

Most Common Method of Foreclosure: Judicial.

Judicial Foreclosure Procedure: Action commenced by filing a complaint in court of common pleas. Pa. R. Civ. P. 1143. Must serve the owner as well as the occupant of the property. Pa. R. Civ. P. 410.

Preforeclosure Notice: See 41 Pa. Stat. Ann. § 403; 10 Pa. Code § 7.4.

Home Foreclosures: Puerto Rico

P.R. Laws Ann. tit. 30, §§ 2701 to 2726

Most Common Method of Foreclosure: Summary procedure (§ 2701) or judicial action (P.R. R. Civ. P. 51.8, tit. 32A, Appx. V).

Preforeclosure Notice: Debtor must be given twenty days to cure default before the procedure can be initiated. Demand made by notary or certified mail. Cure amount does not include attorney fees. § 2703.

Home Foreclosures: Rhode Island

34 R.I. Gen. Laws §§ 34-27-1 to 34-27-8, 34-25.2-1 to 34-25.2-15

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Home Foreclosures: South Carolina

S.C. Code Ann. §§ 15-39-610, 15-39-650, 15-39-660, 29-3-630 to 29-3-800; S.C. R. Civ. P. 71

Most Common Method of Foreclosure: Judicial.

Judicial Foreclosure Procedure: In any action, the plaintiff must establish the amount of the debt. § 29-3-630. Notice is given as in any civil action. Expedited judicial procedure is available for abandoned property. § 29-3-625.

Preforeclosure Notice:

Home Foreclosures: South Dakota

S.D. Codified Laws §§ 21-48-1 to 21-48-26

Most Common Method of Foreclosure: Power of sale. See §§ 21-47-1 to 21-47-25 for the judicial foreclosure procedure. See also §§ 21-48A-1 to 21-48A-5 for non-judicial voluntary foreclosure.

Preforeclosure Notice:

Number of Notices: One.

Home Foreclosures: Tennessee

Tenn. Code Ann. §§ 35-5-101 to 35-5-118, 66-8-101 to 66-8-114

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One; Notice of Sale.

Home Foreclosures: Texas

Tex. Prop. Code Ann. § 51.002 (West)

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: Two; notice of default and opportunity to cure (with twenty days to cure) and notice of sale (for residential mortgage foreclosures only).

Amount of Notice Required: Twenty-one days prior to sale.

Home Foreclosures: Utah

Utah Code Ann. §§ 57-1-19, 57-1-23 to 57-1-34, 78B-6-901 to 78B-6-909 (West)

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Home Foreclosures: Vermont

Vt. Stat. Ann. tit. 12, § 4941 (strict foreclosure), §§ 4945 to 4954 (judicial); §§ 4961 to 4970 (non-judicial); Vt. R. Civ. P. 80.1

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: Power of sale foreclosure not available for residential structure or mobile home with one to four units, or individual units of condominium or cooperatives other than time-share. §§ 4961, 4931 (definition of “dwelling house”).

Home Foreclosures: Virginia

Va. Code Ann. §§ 55.1-320 to 55.1-345

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Home Foreclosures: Virgin Islands

V.I. Code Ann. tit. 5, §§ 484, 492 to 496; V.I. Code Ann. tit. 28, §§ 531 to 538

Most Common Method of Foreclosure: Judicial. V.I. Code Ann. tit. 28, § 531 provides that liens on real property, except for judgment liens, whether created by a mortgage or otherwise “shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby, by an action of an equitable nature.”

Preforeclosure Notice:

Home Foreclosures: Washington

Wash. Rev. Code §§ 61.24.020 to 61.24.163

Most Common Method of Foreclosure: Power of sale on deed of trust. Power of sale foreclosure is not available for agricultural or farm land. § 61.24.030.

Preforeclosure Notice:

Number of Notices: Two: Notice of default and notice of sale. §§ 61.24.030, 61.24.040.

Home Foreclosures: West Virginia

W. Va. Code §§ 38-1-3 to 38-1-15

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Collection Actions: 3.7.8.1 Terminology

Although courts use varying terminology, this chapter uses the term “tolling” to mean suspension of the running of the limitations period and “reviving” to mean restarting the running of the limitations period from the beginning. When the limitations period is five years—and two years remain on the period—and the period is tolled, then two years continue to remain left in the period until the tolling of the period ceases. If the action is revived, then the counting goes back to zero, and the limitations period does not expire for five more years.

Home Foreclosures: 3.6.4 Role of Document Custodian

A holder may retain possession of a note through an agent.372 Transfers of possession of a note can occur directly or through the holder’s agent.373 Pooling and servicing agreements typically designate a financial institution to serve as the custodian of the notes and security instruments for the loans in the trust’s pools. The designated custodian serves as the trust’s agent for the limited purpose of maintaining possession of these documents.

Home Foreclosures: 3.6.5 Evidentiary Problems

Regardless of whether a judicial or non-judicial foreclosure is involved, challenges to authority to foreclose often come down to issues of evidence. In summary judgment proceedings and at trials servicers must present evidence regarding the status of notes and mortgages. This includes evidence of possession of notes and the dates of indorsements. It can also mean providing evidence of the written assignments of mortgages and deeds of trust. Servicers rely on professional witnesses to establish these facts.

Home Foreclosures: 7.5.5 Higher-Priced Mortgage Loans

A “higher-priced mortgage loan”130 is a first or second closed-end mortgage with an APR that exceeds the “average prime offer rate” (APOR) by the appropriate threshold.131 The higher-priced loan category is designed to match the subprime market and uses rate triggers lower than high-cost loans under HOEPA.132 These loans can be purchase money loans or refinance loans, so long as they meet the APOR trigger.

Home Foreclosures: 7.5.6 The Home Ownership and Equity Protection Act (HOEPA)

The Home Ownership and Equity Protection Act (HOEPA)138 carves out a class of high-rate loans and subjects them to special regulation. For these loans, HOEPA requires additional disclosures, prohibits certain abusive loan terms and practices, imposes additional penalties, and expands the potential liability of assignees.

Home Foreclosures: 7.6.1 Introduction

The Real Estate Settlement Procedures Act (RESPA)147 is the primary federal law directly addressing residential mortgage settlements.148 RESPA, originally enacted in 1974, is intended to ensure that consumers in real estate transactions receive timely information about the nature and cost of the settlement process and to protect consumers “from unnecessarily high settlement charges caused by certain abusive practices.”149 To accomplish these