Foreclosure (Judicial and Non-Judicial)

The process by which a mortgage lender takes and sells a home after default - the court-supervised route some states require and the trustee's sale others permit, the federal servicing rules that must be followed first, the loss-mitigation alternatives, and what the borrower can still owe or reclaim after the sale.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of law firms for this.

What it means

A mortgage or deed of trust gives the lender the right, if the borrower defaults, to have the property sold and the debt paid from the proceeds. How that happens depends on the state. In judicial-foreclosure states the lender must file a lawsuit, serve the borrower, prove the default and the debt, and obtain a judgment ordering a sale conducted by a sheriff or court officer; the borrower may answer, raise defenses and be heard. In non-judicial states the deed of trust contains a power of sale, and the trustee named in it may sell the property after recording and serving a notice of default and, following a statutory waiting period, a notice of sale, with no court involved unless the borrower sues to stop it. Some states allow both; the non-judicial route is faster and cheaper and is the one lenders use where it is available.

Federal law now regulates what must happen before either route begins. The mortgage-servicing rules require the servicer to contact a delinquent borrower early, to inform them of loss-mitigation options, and to refrain from making the first notice or filing until the loan is a stated number of days delinquent; and where a borrower submits a complete application for assistance, the servicer may not proceed to a sale while it is under review - "dual tracking" is prohibited. Loss mitigation may include a repayment plan, a forbearance, a loan modification changing the rate, term or principal, a short sale for less than the balance, or a deed in lieu of foreclosure. Borrowers with federally backed loans have further protections under the program that backs them, and service members on active duty are protected by a separate federal statute.

The sale ends the borrower's ownership, but not always the story. If the proceeds fall short, the lender may pursue a deficiency judgment for the balance in many states, though anti-deficiency statutes bar it for certain purchase-money or residential loans, and non-judicial sales often forfeit the right. Some states give the borrower a statutory period after the sale to redeem the property by paying the full price, and most allow reinstatement - curing the default and stopping the sale - up to a point before it. Junior liens are wiped out by the sale but their debts survive as personal obligations; a bankruptcy filing before the sale stays it and, in Chapter 13, allows the arrears to be cured over the plan.

Where this comes from

When people hire a lawyer for this

The interventions that save homes happen before the sale date, and most of them - a loss-mitigation application that is complete enough to stop the clock, a challenge to the lender's standing or the notice, a Chapter 13 filing to cure the arrears, a negotiated short sale that avoids a deficiency - need a lawyer or a HUD-approved housing counselor weeks ahead, not the day before. A borrower should respond to every servicer letter in writing, keep copies, and be wary of anyone who charges a fee up front to "stop" a foreclosure; after the sale, the questions that remain - deficiency, redemption, the timing of any eviction - each have a state-specific answer worth asking for.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find a lawyer for this in your state

Choose your state to see Foreclosure & Alternatives law firms in the city where we list the most; your city may be under “other cities”, A to Z. A state marked “Real Estate” has no Foreclosure & Alternatives listing yet and opens the broader page.

• Alabama (Birmingham)
  +1 other city

  • Montgomery
• Alaska (Anchorage)
• Arizona (Chandler)
  +6 other cities

  • Gilbert
  • Glendale
  • Mesa
  • Phoenix
  • Scottsdale
  • Tucson
• Arkansas (Little Rock)
• California (Fontana)
  +19 other cities

  • Anaheim
  • Bakersfield
  • Chula Vista
  • Fremont
  • Long Beach
  • Los Angeles
  • Modesto
  • Oxnard
  • Riverside
  • Sacramento
  • San Bernardino
  • Stockton
  • and 7 more with fewer listed firms
• Colorado (Aurora)
  +2 other cities

  • Colorado Springs
  • Denver
• Connecticut (Bridgeport)
• Delaware (Wilmington)
• District of Columbia (Washington)
• Florida (Hialeah)
  +5 other cities

  • Jacksonville
  • Miami
  • Orlando
  • St Petersburg
  • Tampa
• Georgia (Atlanta)
• Hawaii (Honolulu)
• Idaho (Boise, Real Estate)
• Illinois (Chicago)
• Indiana (Fort Wayne)
  +1 other city

  • Indianapolis
• Iowa (Des Moines)
• Kansas (Wichita)
• Kentucky (Lexington)
  +1 other city

  • Louisville
• Louisiana (Baton Rouge)
  +2 other cities

  • New Orleans
  • Shreveport
• Maine (Portland)
• Maryland (Baltimore)
• Massachusetts (Boston)
• Michigan (Detroit)
• Minnesota (Minneapolis)
  +1 other city

  • Saint Paul
• Mississippi (Jackson)
• Missouri (Kansas City)
  +1 other city

  • St. Louis
• Montana (Billings)
• Nebraska (Lincoln)
  +1 other city

  • Omaha
• Nevada (Henderson)
  +3 other cities

  • Las Vegas
  • North Las Vegas
  • Reno
• New Hampshire (Manchester)
• New Jersey (Jersey City)
  +1 other city

  • Newark
• New Mexico (Albuquerque)
• New York (New York City)
  +2 other cities

  • Buffalo
  • Rochester
• North Carolina (Charlotte)
  +5 other cities

  • Durham
  • Fayetteville
  • Greensboro
  • Raleigh
  • Winston-Salem
• North Dakota (Fargo, Real Estate)
• Ohio (Cincinnati)
  +3 other cities

  • Cleveland
  • Columbus
  • Toledo
• Oklahoma (Oklahoma City)
  +1 other city

  • Tulsa
• Oregon (Portland)
• Pennsylvania (Philadelphia)
  +1 other city

  • Pittsburgh
• Rhode Island (Providence)
• South Carolina (Columbia)
• South Dakota (Sioux Falls)
• Tennessee (Nashville)
  +1 other city

  • Memphis
• Texas (Arlington)
  +11 other cities

  • Austin
  • Corpus Christi
  • Dallas
  • El Paso
  • Fort Worth
  • Garland
  • Houston
  • Irving
  • Laredo
  • Plano
  • San Antonio
• Utah (Salt Lake City)
• Vermont (Burlington)
• Virginia (Chesapeake)
  +3 other cities

  • Norfolk
  • Richmond
  • Virginia Beach
• Washington (Seattle)
  +2 other cities

  • Spokane
  • Tacoma
• West Virginia (Charleston)
• Wisconsin (Madison)
  +1 other city

  • Milwaukee
• Wyoming (Cheyenne, Real Estate)

Related terms

Other entries in the same area of law, each written from the same primary sources.

• Adverse PossessionThe doctrine by which a person who occupies land they do not own, openly and continuously for the period the state sets, becomes its owner - the elements, the "color of title" and tax-payment variations, and why it decides fence and driveway disputes far more often than it transfers whole parcels.
• Deed Types: Warranty, Special Warranty and QuitclaimWhat the different forms of deed promise about the title they convey - the general warranty deed's guarantee against every defect, the special warranty deed's narrower one, and the quitclaim deed's none - and what each is used for.
• EasementA legal right to use someone else's land for a defined purpose, without owning it.
• Eviction (Unlawful Detainer)The court process a landlord must use to make a tenant leave - and in most states, the only lawful way to do it.
• HOA Covenants and Assessment LiensThe recorded restrictions that bind every owner in a planned community or condominium, the association that enforces them, and the assessment lien that lets it foreclose on a home for unpaid dues - what the documents control, how they are amended and enforced, and the limits the states have placed on association power.
• Homeowners Insurance ClaimHow a property loss claim actually works - what the policy covers, the duties it imposes on you, and where claims most often fail.
• Implied Warranty of HabitabilityA landlord's obligation to keep a rented home fit to live in - one the lease usually cannot sign away.
• Mechanic's Lien (Construction Lien)The statutory lien a contractor, subcontractor, supplier or laborer may record against a property for unpaid work or materials - the preliminary notices and filing deadlines that make or break it, why an owner who paid the general contractor can still face a subcontractor's lien, and how the lien is enforced or released.
• Purchase Contract ContingenciesThe conditions in a home-purchase agreement that let a buyer walk away with the deposit - inspection, financing, appraisal, sale of the buyer's current home, title - how each is exercised and waived, and what happens to the earnest money when the deal fails.
• Quiet Title ActionThe lawsuit that asks a court to declare who owns a property and to remove a competing claim from the record - used to clear an old mortgage never released, a break in the chain of title, a tax-sale or adverse-possession claim, or a deed that should never have been recorded.
• Security DepositMoney a tenant leaves with a landlord against damage or unpaid rent - held under state rules that usually require an itemized accounting within a fixed period after move-out.
• Seller Disclosure DutiesWhat a seller of a home must tell a buyer about the property - known material defects, water intrusion, structural and system problems, and under federal law lead-based paint - the state disclosure forms, the "as is" sale, and what a buyer can do when a problem was concealed.
• Title Search and Title InsuranceThe examination of public records that establishes who owns a property and what claims stand against it, and the insurance policy that pays if that examination missed something - who is protected by the lender's policy, who by the owner's, and what neither covers.
• Transfer-on-Death DeedA recorded deed that leaves a house to someone at death while changing nothing during life - available in many states, and not all.

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