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Home Foreclosures: 3.6.3.3 Is the Loan Properly Included in the Trust?

The terms of a pooling and servicing agreement govern when and how a trust acquires mortgages. For example, some PSAs permit the trust to acquire only mortgages that are current, precluding the trustee from accepting loans that are in default. A trust agreement may set a closing date after which new mortgages may not be added to the trust pool.

Home Foreclosures: Alabama

Ala. Code §§ 35-10-1 to 35-10-30, §§ 6-5-247 to 6-5-257

Most Common Method of Foreclosure: Non-judicial; Power of sale in mortgage.

Preforeclosure Notice:

Number of Notices: One; notice of sale. §§ 35-10-8, 35-10-13.

Amount of Notice Required: Thirty days prior to sale.

Content of Notice: Time, place, terms of sale, and property description.

Home Foreclosures: Alaska

Alaska Stat. §§ 34.20.070 to 34.20.135

Most Common Method of Foreclosure: Non-judicial; Power of sale in deed of trust.

Preforeclosure Notice:

Number of Notices: One; notice of default and sale.

Amount of Notice Required: Notice is to be served not less than thirty days after default and not less than ninety days before sale.

Home Foreclosures: Arizona

Ariz. Rev. Stat. Ann. §§ 33-741 to 33-750, 33-801 to 33-821

Most Common Method of Foreclosure: Non-judicial; power of sale in deed of trust. (Judicial foreclosure for some existing mortgages, which were common prior to 1971.)

Foreclosure by Power of Sale Permitted?: On deeds of trust only. § 33-807.

Home Foreclosures: Arkansas

Ark. Code Ann. §§ 18-49-101 to 18-49-106, §§ 18-50-101 to 18-50-117

Most Common Method of Foreclosure: Non-judicial; power of sale in mortgage (except for agricultural land).

Judicial Foreclosure Procedure: See §§ 18-49-101 to 18-49-106.

Preforeclosure Notice:

Number of Notices: One; notice of default and intention to sell; must be recorded.

Home Foreclosures: California

Cal. Civ. Code §§ 2920 to 2924l (West); Cal. Civ. Proc. Code §§ 580a to 580d (West)

Most Common Method of Foreclosure: Non-judicial; power of sale in deed of trust.

Judicial Foreclosure Procedure: See Cal. Civ. Proc. Code §§ 725a to 730.5 (West). Generally judicial foreclosure used only if there are problems requiring court resolution or if likelihood for recovery of deficiency judgment.

Preforeclosure Notice:

Home Foreclosures: Colorado

Colo. Rev. Stat. §§ 38-38-100.3 to 38-38-114

Most Common Method of Foreclosure: Power of sale by a public trustee, with court supervision.

Preforeclosure Notice:

Home Foreclosures: Delaware

Del. Code Ann. tit. 10, §§ 5061 to 5067

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No.

Judicial Foreclosure Procedure: Scire facias Order to show cause why the mortgaged premises should not be seized upon breach of a condition. Writ served like a summons. §§ 3105, 5061. Twenty days to answer. Del. Super. Ct. Rule of Civ. Proc. 4.

Notice of Sale:

Home Foreclosures: District of Columbia

D.C. Code §§ 42-815, 42-816

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Amount of Notice Required: Thirty days prior to sale.

Content of Notice: Amount of loan and amount of default, and date, time, and place of sale and such other information as required by D.C. regulations.

Home Foreclosures: Florida

Fla. Stat. §§ 702.01 to 702.12, 45.031 to 45.035

Most Common Method of Foreclosure: Judicial action. The mortgagee can request the issuance of an order to show cause to the mortgagor why final judgment of foreclosure should not be entered. § 702.10.

Foreclosure by Power of Sale Permitted?: No.

Home Foreclosures: Georgia

Ga. Code Ann. §§ 44-14-160 to 44-14-191

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One; notice of sale.

Amount of Notice Required: By mail, thirty days prior to sale. Copy of notice of sale to be given to publisher shall be mailed or delivered to debtor. § 44-14-162.2.

Home Foreclosures: Guam

Guam Code Ann. tit. 7, §§ 24101, 24104 to 24105, 24107, 23113, 23124

Most Common Method of Foreclosure: Judicial foreclosure.

Judicial Foreclosure Procedure: All foreclosures must be brought in superior court. § 24101.

Preforeclosure Notice:

Number of Notices: One; notice of sale.

Amount of Notice Required: Twenty days prior to the sale.

Home Foreclosures: Hawaii

Haw. Rev. Stat. §§ 667-1.5 to 667-20.1 (Judicial, or Foreclosure by Action), 667-21 to 667-41 (Non-Judicial, or Power of Sale)

Most Common Method of Foreclosure: Power of sale. Prior to 2012, there were two alternative processes for non-judicial foreclosure. In 2012, the Hawaii legislature repealed one of these processes, and there is now only one non-judicial process, which is contained in §§ 667-21 to 667-41. The judicial foreclosure process remains available.

Home Foreclosures: Idaho

Idaho Code §§ 45-1505 to 45-1515

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: Two; notice of default and notice of sale.

Amount of Notice Required: Notice of sale: After recording notice of default and at least one hundred twenty days prior to sale.

Home Foreclosures: Illinois

735 Ill. Comp. Stat. 5/15-1501 to 5/15-1605

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No. § 5/15-1405.

Home Foreclosures: Indiana

Ind. Code §§ 32-30-10-1 to 32-30-10-14, 32-29-1-1 to 32-29-1-11, 32-29-7-1 to 32-29-7-14

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No. § 32-29-1-3.

Home Foreclosures: Iowa

Iowa Code §§ 654.1 to 654.26

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No (§ 654.1), except as provided in § 654.18 (Alternative Non-judicial Voluntary Foreclosure Procedure) or § 655A (Non-judicial Foreclosure of Nonagricultural Mortgages). The mortgagee waives the deficiency if an alternative procedure is used.

Home Foreclosures: Kansas

Kan. Stat. Ann. §§ 60-2410, 60-2414 to 2415

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No.

Judicial Foreclosure Procedure: Complaint filed in local district court. § 60-601. If personal service, mortgagor has twenty-one days to respond. If service by publication, mortgagor has forty-one days. § 60-212.

Home Foreclosures: Kentucky

Ky. Rev. Stat. Ann. §§ 426.525 to 426.720 (West)

Most Common Method of Foreclosure: Judicial.

Foreclosure by Power of Sale Permitted?: No. § 426.525.

Judicial Foreclosure Procedure: Complaint filed in circuit court. Defendants have twenty days to respond from the day following date of service. Ky. R. Civ. P. 4.02.

Preforeclosure Notice:

Number of Notices: One.

Home Foreclosures: Maine

Me. Stat. tit. 14, §§ 6101 to 6327

Most Common Method of Foreclosure: Judicial/strict foreclosure.

Foreclosure by Power of Sale Permitted?: No, except against a corporation or partnership or limited liability company. § 6203-A.

Home Foreclosures: Maryland

Md. Code Ann. Real Prop. §§ 7-105 to 7-105.8 (West); Md. Rules 14-201 to 14-216, 14-305 to 14-306

Most Common Method of Foreclosure: Power of sale with court supervision.

Preforeclosure Notice:

Number of Notices: Three; notice of intent, order to docket, and notice of sale.

Home Foreclosures: Massachusetts

Mass. Gen. Laws ch. 244, §§ 14, 17B, 18, 35A, 35B, 35C

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Home Foreclosures: Michigan

Mich. Comp. Laws §§ 600.3101 to 600.3185, 600.3201 to 600.3285

Most Common Method of Foreclosure: Power of sale. The party foreclosing must be either the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage. If the party foreclosing is not the original mortgagee, a record chain of title must exist prior to the sale date evidencing the assignment of the mortgage to the party foreclosing. § 600.3204.