Foreclosure Trends

Lex Levinrad asked:


Investing in Foreclosures For Beginners

by Lex Levinrad Copyright © 2008

If you are thinking about investing in foreclosures there are some key points for you to consider before you begin investing.

The first step for you to understand is how the foreclosure process works. The foreclosure process can be broken down into three key components.

Pre-Foreclosure Foreclosure Auction REO

 Pre-foreclosure

The first step in the foreclosure process is called pre-foreclosure. When a homeowner has not paid their mortgage for more than ninety days the bank that owns the mortgage on that property files what is called a “lis pendens” which means “suit pending” in Latin.

A “lis pendens” is a written public notice that a lawsuit has been filed concerning real estate. This notice is filed in the county public records against a piece of property. This notice is also often listed in the classified ad legal section of certain newspapers. Filing this public notice alerts any potential purchaser or lender that the title to this property is “clouded” or unclear.

When a property has a “clouded” title then the title is not “free and clear” which makes the property less attractive to potential buyers or lenders. In reality, once a “lis pendens” is filed, a property cannot be sold or refinanced without the buyer being fully aware of the fact that the “lis pendens” has been filed.  The only way to get rid of a “lis pendens” is through foreclosure which wipes out a “lis pendens”.

Once a lis pendens has been filed the property is considered to be in pre-foreclosure. If you subscribe to a public database like foreclosures.com, realtytrac.com and many other similar sites you can get access to the properties that are in pre-foreclosure. You can also get a list directly from your county clerk by visiting your county courthouse. In some counties these lists are even available online.

If you are investing in pre-foreclosures you are buying a house directly from the homeowner. This negotiation with the homeowner is usually done without the banks knowledge. If you are investing in pre-foreclosures you will need to negotiate directly with the homeowner about purchasing their house. Since the “lis pendens” filing is public knowledge investing in pre-foreclosures is very competitive.

If the house has no equity then you will need to negotiate a short sale with the bank. A short sale is where a bank agrees to take less than the full amount owed to them. This occurs when a buyer is only willing to purchase the property for less than the amount owed on the mortgage by the seller. In the case of a short sale the bank is aware of the process since you will need to negotiate with them. The department at the bank that is responsible for negotiating short sales is called “loss mitigation”.

There are numerous online sources of pre-foreclosure lists which make the barrier to entry in pre-foreclosure investing very minimal.  Anyone can become a pre-foreclosure investor simply buy purchasing a list of homeowners in foreclosure. Since the information is public record it can even be obtained for free by visiting your county courthouse.

For this reason, pre-foreclosure investing is fiercely competitive. Since there are so many potential pre-foreclosure investors, the homeowners in foreclosure are literally bombarded with offers to purchase their homes. This makes it difficult for investors to differentiate themselves from one another to the homeowner. Additionally there is often hostility and anger from the homeowner since they do not want to be bothered by “foreclosure sharks” or people that they perceive as trying to take advantage of their situation.

For the above reasons, pre-foreclosure investing is a difficult and competitive are of foreclosure investing. If the homeowner cannot do a loan modification or sell their house to an investor then the house goes to the foreclosure auction.

Foreclosure Auction

The foreclosure auction is a public auction that allows any member of the public to bid on a house. Typically you need to register prior to the day of the auction and you need to have a cashiers’ check made payable to the clerk of the court for at least 5% of the purchase price.

If you bid on a house and win the auction you are expected to pay the balance of the amount either later that day or within 24 hours. In the event that you do not pay the balance in time then in most counties you forfeit your deposit.

You cannot get a mortgage to buy a property at the foreclosure auction. You need to have the ability to pay cash for a property and you need to be able to produce both the deposit amount and the full amount within no more than 24 hours after the auction. Since so much cash is required, investing in foreclosures by buying at the courthouse is difficult for new investors.

Investing at the courthouse is also full of risks. When you buy a house at the courthouse you do not get free and clear title. You get a property as is. If there are liens, judgments or code violations recorded against the property then these will not be wiped out by the foreclosure auction. If your property has squatters or unwanted tenants you will need to go through the eviction process prior to even entering your property. In most cases there is no inspection of properties sold at the courthouse so any damages that there might be are your responsibility. You also might purchase a property only to find out later that all the cabinets, appliances, and fixtures have been stolen out of the property.

In some cases beginners at the courthouse are not even aware that they are not bidding on a first mortgage. I have seen bidders bidding on a second mortgage only to find out that there is a first mortgage ahead of them. If you are going to be investing in foreclosures by buying them at the courthouse it is imperative that you understand “position” and which mortgage you are bidding on. It is also imperative to do a very thorough title, lien, utility and code violation search. It is also important to do your homework in understanding the condition of the property, the value of the property and the estimated repairs that the property will need.

Investing in foreclosures at the courthouse is not for the faint of heart and certainly not for beginners. You need to be very knowledgeable about real estate law, the foreclosure process, and have access to a good title agent that will run title searches for you. Since buying at the courthouse requires cash it has a high barrier to entry. Anyone without access to cash cannot buy at the courthouse. This effectively eliminates a lot of the competition. If you are willing to be diligent and do the work, buying at the courthouse can be very rewarding. However this is not an area for beginners. Anyone can watch a foreclosure auction by going to the courthouse on the day of an auction. You do not need to be a bidder to enter the room where the auction is being held.

Buying at the courthouse can be frustrating since foreclosure auctions are often cancelled at the last minute. Auctions can be cancelled because one or both of the parties was not served correctly, the seller has filed bankruptcy or the seller has negotiated a loan modification with the bank. Doing a lot of research on properties and then watching them get cancelled at the last minute can be very time consuming and frustrating.

Usually the bank is prepared to let a property get sold at the courthouse for eighty to ninety percent of its market value. Depending on economic times, this number can be higher or lower. The attorney representing the bank will protect the banks interest by bidding up to the value of the amount that they are willing to sell their property for. It is a myth that foreclosures get sold at the courthouse for pennies on the dollar. In reality, the bank will protect their interest up to almost the full amount that is owed to them. This is another reason why bidding can be very frustrating at the courthouse. If the bank is the highest bidder, then the property goes back to the bank and becomes a bank owned or REO property.

REO

 Real estate owned or REO properties are properties that are owned by the bank. Since banks are not landlords the first thing that they do with a property that comes back to them is they try and sell it. The way that they do this is by using “asset managers” or asset management companies which are companies that represent the banks in dealing with their REO properties.

These asset managers submit their REO properties to pre-established realtors that only work with REO properties. These realtors give their asset managers a “brokers’ price opinion” (BPO) which lets the bank know at what price the realtor thinks the house should be listed. Usually bank owned properties are listed at competitive prices in order to facilitate a quick sale. REO properties are cash only deals meaning any potential buyer needs to be pre-qualified by the bank and needs to show a “proof of funds” like a bank statement. Buyers need to show that they have the cash available to purchase a property.

Buying REO properties is not as competitive as pre-foreclosures but is more competitive than buying at the courthouse. The reason is because all of the properties are listed on the multiple listing service (MLS) so any member of the general public can have access to REO properties through websites like realtor.com and zillow.com. This makes purchasing REO properties fairly competitive although the barrier to entry is high since you need to be a cash buyer.

You cannot get a mortgage to buy a property that is owned by a bank. In fact if a bank is faced with two offers they will always take the cash offer even if it is substantially lower than any other offer. The reason is because banks need to liquidate REO properties quickly in order to avoid a bottleneck of owning too many properties. Federal regulations limit how many bad loans a bank can have on their balance sheet so banks try and get rid of their REO properties as quickly as they can.

For this reason, cash buyers that are prepared to close quickly and waive contingencies like inspections will always get the best deals. One big advantage of purchasing REO properties is a relatively free and clear title. I use the word relatively since the banks use their own title companies to close on their REO properties. Sometimes these title companies do not search for code enforcement and utility bill liens. However the marketability of the title is never in question.

The popularity of purchasing REO properties changes depending on the current state of the real estate market. Presently in 2008 the best opportunity for buying foreclosed properties is with REO properties. In some situations these houses are being sold at ridiculously cheap prices. Since there is so much turmoil in the banking sector many banks are reluctantly being forced to “dump” properties are very low prices. If you have the cash to invest you should begin looking for an REO bargain while they are still available. It is estimated that there is enough supply still entering the market that you can probably purchase an REO property relatively cheaply and easily over the next two years.

For patient long term real estate investors, buying REO properties directly from the bank could have significant upside potential.

 



ROY

David Done asked:


Orange County in Southern California is made up of a collection of

beautiful coastal towns surrounded by rolling hills and a lush

landscape. Many people strive to achieve the relaxing and easy-going

lifestyle that is synonymous with the West Coast. Throughout the

communities of Orange County, you will find some of the world’s most

striking beaches along with first-rate community activities like

festivals, seasonal events, sporting events, and much more. For these

reasons, real estate throughout the communities in Orange County is

highly sought after making the market strong and stable.

A search of Orange County foreclosure

properties will yield a variety of interesting results that make

promising investment opportunities. Still, foreclosures can be a bit of

a gamble if you haven’t researched the area they are in and at least

had a look at the condition of the property. In Orange County, you will

find there is no lack of help in your foreclosure search. For the most

comprehensive foreclosure information, go to

www.foreclosuretrackers.com. Foreclosure Trackers, Inc. (FTI) provides

its members a comprehensive foreclosure property listings in Orange County that are in the foreclosure, auction, and REO/Bank owned stages and provides actual color property photos for each listing.

Foreclosure Trackers, Inc. gives members the flexibility to search

various regions by zip code, city or even street name to find a

community, rather than just a single property. Orange County is an

ideal location for a foreclosure search because there is a wide range

of available properties found in growing communities. Purchasing

foreclosures requires certain skills and resources of which many people

are not aware. Foreclosure Trackers, Inc. offers foreclosure training

and education to assist investors at all skill levels, from the

inexperienced to the seasoned professional. Because a foreclosure

search will usually lead you to properties that are available for

bargain prices (usually below market value) you will likely be able to

resell for a reasonable profit. This means that you can feel confident

in your investment. Whatever your motivations for conducting a California foreclosure search, you are sure to find many fine properties listed on www.foreclosuretrackers.com.

Foreclosure Trackers, Inc., a one-stop foreclosure resource to

investors of all skill levels, providing the diligence, knowledge, and

education necessary to succeed when investing in foreclosure

properties. Today, it employs a dedicated and talented team of loan

officers, real estate agents, tax attorneys, lenders, title company

representatives, and private investors.

This Article is Originally Published here: Orange County Foreclosure Search



ANDRE

GotTrouble.com asked:


Non-Judicial foreclosure is the process by which your mortgage lender, under the specific and express terms of your mortgage, will claim a legal right to your property and proceed with having your property sold at a public auction in the absence of a formal judicial hearing or proceeding. Since the courts do not administer the foreclosure process in a non-judicial foreclosure state, the authority and responsibility lies with the trustee who must follow the strict rules governing the foreclosure and sale process in your state.

The major advantage of non-judicial process is that the mortgage lender, in most cases, is not permitted to pursue a deficiency judgment against you in the event that your property sells for less then the amount you still owe on your home loan.

How long does non-judicial foreclosure take?

A non-judicial foreclosure starts when the trustee, at the request of your lender, prepares and mails to you a legal document known as a “Notice of Default and Election to Sell”. This document, in most cases, is your official notice that because of your non-payment and default of your loan, a non-judicial foreclosure process has commenced and that the lender intends on proceeding with the sale of your home at a public auction. The proceeds of such a sale will be used to payoff your loan with the lender.

In most cases, the non-judicial foreclosure process will take between two to four months to complete leading to the sale of the property. This is your window of opportunity to attempt to stop the foreclosure process. You should know that the time period could turn out to be longer if the trustee fails to fully comply with the terms of mortgage documents or if the trustee violates any of the many rules governing the foreclosure process in your state.

What is a Notice of Default and Election to Sell?

The trustee must comply with the laws governing recording, mailing, posting the Notice of Default and Election to Sell. However, in most cases, there is no legal requirement that you receive “actual” notice of the foreclosure. This sounds surprising in light of the importance of notice in all legal proceedings. Most courts have ruled that a foreclosure is valid so long as the trustee carried out the notification procedures in compliance with your states law, irrespective of whether you were unable to learn of the notice because you were out of the state or engaged in other matters when the notice was sent to you.

What is the Reinstatement Period?

This area is often confused with the homeowners right of redemption which is completely different. Depending on your specific state law, reinstatement normally commences upon the mailing of the Notice of Default to your home and ends sometime before to the trustee’s sale of your property. The critical feature of the Reinstatement Period is that it provides you with a way to stop the foreclosure process by bringing your mortgage payments fully current again. The lender may also request that you that you reimburse them for attorney and trustee fees that they incurred in the foreclosure process.

How do I reinstate?

It is recommended that you contact the trustee immediately and inform him of your intention to reinstate and bring your loan current. You will first need to obtain from the trustee the exact amount you will need to pay to bring your loan current again. The trustee by law must provide you with this information promptly. Should you pay that amount to the trustee, he must by law immediately stop the foreclosure process. You should then receive the trustee’s notice of termination of foreclosure, which is your proof that the foreclosure proceedings have ended. The notice should also be officially recorded to protect your title to the property.

What about partial repayment?

Most lenders will NOT accept partial payment within the reinstatement period. However, you should consider this option if your lender is open to it and agrees to postpone the foreclosure and you are able to convince the lender of your ability and intention to bring the loan payments current again. Be careful though, you don’t want to be making partial payments if you think you will not be able to bring your payments current again. You could end up losing more money and still end up getting you’re home foreclosed.

It is important to be both realistic and candid with your lender. Also keep in mind that partial payment will not by itself operate to extend the reinstatement period or terminate the foreclosure process. To accomplish these concessions, your lender must agree to do so expressly and in writing.

What is the Notice of Trustee Sale?

After the Notice of Default is issued, and assuming you have not brought your loan current during the reinstatement period, the trustee will issue a Notice of Trustee Sale. The purpose of this document is to notify you and others of the exact time and date your property will be put up for sale by auction. The date of sale is typically about two-to-four weeks after you first received the Notice of Trustee Sale. You might be able to stall the process by a few weeks if you notice any material inaccuracies in the Notice of Sale and you communicate the same to the trustee in writing.

For this and more information on debt, bankruptcy and foreclosure visit www.gottrouble.com/legal/finance/index.html



CLYDE

Robert Lam asked:


Locating high potential pre-foreclosure and foreclosure property investments is a crucial part of the business of pre-foreclosure and foreclosure investing. Especially when it comes to pre-foreclosures, a lot rests on your ability to find promising properties as soon as possible… and before any or many other property investors! Unless you hire someone to find potential investments for you (a good idea in many cases) here are the main sources of information about pre-foreclosure and foreclosure properties that you’ll want to be familiar with.

1. The Local Newspaper

Your local newspaper will typically have a “legal notice” section where you will find, among other things, notices that a certain lender has filed, or is filing, a notice of foreclosure on a particular property. This basically indicates that a property has gone into pre-foreclosure. Alternatively, newspapers also publish notices of trustee sales and foreclosure auctions that are about to occur, including the time, date and place.

2. County Recorder

The local county recorder will keep a database of notices of default. Depending on the county recorder in question, you may be able to search this database online. For example, you may be able to search by “document type” and get all the notices of default, including the relevant owner names and document numbers.

If the online database does not provide details of the loans and properties to which these notices relate, you can still note down the relevant owner names and document numbers, and take this with you to the county recorder’s office. Once there you can review the corresponding documents (i.e. notice of default or Lis Pendens, as the case may be). These will give you the loan details and the address of the properties being subject to foreclosure proceedings.

3. Foreclosure Listing Sites

There are various companies offering lists of foreclosures on their websites. In most cases, you’ll need to pay a fee in order to access such information. An up-to-date foreclosure listing site can certainly save you time in locating information about properties undergoing foreclosure. However, just be sure that the information is, in fact, up to date. There is no advantage - and in fact there is a disadvantage - to paying money for out-of-date information.

4. Property Finders

Finally, you can hire a property finder or “bird dog” to do the leg-work required to find suitable pre-foreclosure or foreclosure properties for you. Rather than you do all the research, you can hire such individuals to scour the newspaper, county recorder’s database and/or foreclosure listing sites.

Even better, though, is to hire someone who has connections in the area you are interested in investing, and who is on good terms with the real estate agents in the area. That way, such hired guns may be able to uncover - and reveal to you - new opportunities as soon as they crop up.

These are the four main sources of information about foreclosure and pre-foreclosure properties. For more details about how to uncover and profit from pre-foreclosure and foreclosure investment opportunities check out www.ForeclosuresUnleashed.net.



RAPHAEL

Malik Ahmad Attorney at law asked:


Foreclosure in Nevada?

How, Whys, and Defense?

By

Malik W. Ahmad Attorney at Law

 [Malik Ahmad is a licensed attorney and admitted to practice to the Supreme Court of Nevada. Malik Ahmad is a solo practitioner and has his own law office in Las Vegas Nevada. Malik Ahmad is admitted to practice in all the courts in State of Nevada. His areas of practice includes bankruptcy, civil and business litigation as well as foreclosure defenses in Nevada.]

All loans in real estate property are considered secured loans. Whenever there is collateral attached to a loan, it is called secured loan.  Unsecured loans are mostly credit cards loans and has no collateral attached with them. Here, in Nevada, and in the real estate context, all loans are secured because they are attached with property. When a loan secured by your lender goes into default, the secured creditor has a right to initiate foreclosure proceedings to take over this collateral. The lender has two choices: one is judicial foreclosure, and the other is non judicial or statutory foreclosure.  Also, these days lenders are using other tactics like workout package, surrender deed in lieu of foreclosure, short sale, and of course the much touted loan modifications.

A foreclosure happens much after all these remedies or solutions are exhausted. Lenders does not like to lose money and like the homeowners wants to pursue all of the options at all the times. A workout package may or may not work because the lender is exploring all the choices where the homeowners can be made current. In a workout package, the lender sees your financial situation, the nature and value of your collateral and whether there are instant advantages which can be accomplished through the workout package. In almost all cases, sooner you talk to your lenders; they would suggest a workout package. The lender may send a workout package to you right away. There is a glimmer of hope for them to see their delinquent loan cured by your through this workout package. Also, it may follow a forbearance period. Just like borrowers, lenders are in a hurry to see a quick solution to this delinquency. Again, there is no uniform method of conducting such negotiation, each lender has their different guidelines and of course very skilled negotiator for this purpose.

A deed in lieu of foreclosure:

The borrower executes a deed where he conveys the property to the secured creditor in lieu of conducting the foreclosure sale. This way the lender becomes the owner of the property without going through the hassle of foreclosing and avoiding extra expenditure of publication. It is a voluntary matter from the borrower where no money in return can be expected. Sometime the borrower offers some money in exchange of clean returning the keys and up keeping the property during the transition times. This paper, however, only discusses situation after the workout package is exhausted or not discussed. There are some advantages of deed in lieu of foreclosure:

                1.            Quick negotiation process.

                2.            Borrower avoids negative publicity.

                3.            Less expensive for the lenders, does not pay for publication of notices.

                4.            No recordation of documents with the county or recorders office.

                5.            There is no public record of any kind created.

                6.            Borrower may obtain some legal as well financial concession from the lender.

               7.            May stay in the property for sometime without paying any mortgage payments.

                8.            The foreclosure process is lengthy and parties can avoid for some mutual benefits.

                 9.            Lenders can do to avoid potential bankruptcy problems.

                10.  The borrower can negotiate the reporting of foreclosure to the credit reporting agencies. A foreclosure on a credit agency is extremely damaging, and the creditors may be approached to report such foreclosure in a more human and decent way.

11.  The lenders can have an immediate possession of the property.

 12.   A deed in lieu of foreclosure does not eliminate junior encumbrances. The lender that takes a deed in lieu of foreclosure takes the title subject to those junior encumbrances. The lender takes over these encumbrances and therefore the rights of secondary lien holders.

13.          The lenders who accepts this deed in lieu of foreclosure also loses the right to pursue a deficiency judgment against the borrowers or guarantors either as a matter of law or as a matter of contract. See Maloney v. Boston five Cents Savings Bank FSB, 422 Mass. 431, 436, 663 N.E. 2d 811, 815 (1996). Both parties should pay particular notice to the doctrine of merger.

14.    Doctrine of Merger: When one party holds both a fee interest in property and lien on the same property, the lesser interest will merge into the greater interest. See Alladin Heating Corp. v. Trustee of the Central States Pension Plan, 93, Nev. 257 (1977) (holding that whether merger occurs is dependent upon the intent of the parties). If a merger occurs, junior liens increase in priority as a result of removal the senior lien held by the lender. If there are junior liens of the property, therefore, the lender may prefer that its higher priority lien remain of record after the conveyance by the deed in lieu.

 15.          Another pitfall is that if the borrower files a bankruptcy, this can be considered a collusive transaction. The bankruptcy code and state law allow a bankruptcy trustee to avoid certain transfers of property that are made prior to a bankruptcy filing known as “fraudulent transfers” 11 U.S.C. Section 548(a)(1)(B); NRS 112.180,., 190. A transfer of property through a deed in lieu of foreclosure is a voluntary transfer that is not subject to the “protections” of the foreclosure process. See Main v. Brim, 75 B.R. 322, 327 (Bankr. D.Az. 1987)

Foreclosure Process in General in Nevada:

                Most of the loans are premised upon continuous payments to the lenders. If these payments are not timely paid, or not continuously paid, the borrowers can start the foreclosure process. The lender reviews the loan documents and determines about the occurrence of a default. Failure to make loan payments triggers this default process. Also, it is contingent upon events which have not been corrected by payments or failure of a workout package.

                A trustee under a deed of trust may exercise its statutory power of sale without the judicial intervention. In Nevada, the foreclosure is mostly a statutory foreclosure. (NRS 107.080(1)). Judicial foreclosures are also permitted under Nevada law (NRS 40.430-40.450) but judicial foreclosures are not the preferred choice in Nevada for most of the lenders because of the looming danger of the right of redemption. Upon default, the initial step is for either the beneficiary or the trustee to execute a notice of breach and election to sell, which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b)). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to see must be recorded in the county in which the property encumbered by the trust deed is situated. This notice must also be mailed (notice of breach and election to sell) by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3)

Notice of Default and Election to Sell?

                1.   Must describe the property

                2.   Must describe the deficiency in performance of payment.

3.            May contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligations so permit (NRS 107.080(3).

 4.            Within 10 days of recording and mailing the notice of default to the trustor, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who has either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by register3ed or certified mail, return receipt requested. (NRS 107.090.)

 5.            Nevada laws make it immaterial whether the notice is actually received by the trustor. The notice is effective nonetheless. (Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P. Wd 462 (1971)

 6.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (referred to below as “trustor or interested person”) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. (NRS 108.080(3). If the trustor other interested persons “make good” the deficiency in payment or performance within the 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRS 107.080(2)(a), (3). The 35-day period in the statute exists independently of any notice or cure periods contained the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incidents to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment (NRS 107.080(3).

What is the Procedure for Trustee’s Sale?

                 When three months have elapsed from the date of the recordation of the notice of breach and election to sell, the trustee may give notice of the time and place of the trustee’s sale, which notice must be given in accordance with the statutory provisions for execution sales of real property – posted notice in three public places for 20 successive days and published once a week for three consecutive weeks. (NRS 107.080(4);231.130(1)©. The trustee’s sale may be held at the office of the trustee anywhere in Nevada, even if it is not in the county where the property being sold is located. (NRS 107.080(4).

                 If the power of sale is exercised in compliance with the Nevada statute, the purchaser is vested with the title of the trustor, without equity or right of redemption NRS 107.080(5).

What are the Guarantor’s Rights to Notice and Subrogation?

         The notice of breach and election to sell must be mailed by certified mail, postage prepaid, to each guarantor or surety of the debt at the address of each if known, or at the address of the trust property. The notice must also be mailed to any other obligor who has filed a request for a copy of the notice under NRS107.090. Failure to provide such notice would release that guarantor, surety or obligor from liability on the obligation. (NRS 107.095(1).

           Under NRs 107.095(3) a guaranty, surety or other obligor is not released if the required notice is give at least fifteen (15) days before the later of the expiration of the 35-day period described in NRs 107.080 or any extension of that period by the beneficiary, or if the notice of default is rescinded before the sale id advertised.

           Upon full satisfaction by the guarantor, surety or other obligor, other than the trustor, of the indebtedness secured by a mortgage or lien, the paying guarantor or obligor is entitled to enforce every remedy which the beneficiary has against the trustor, and is entitled to an assignment from the beneficiary of all of the rights the beneficiary then has by way of security for the payment or performance of the trustor. NRS 40-475 (1989). Such an obligor is also entitled to subrogation, junior only to the secured lender’s rights, in the case of partial satisfaction of the indebtedness. (NRS 40.485 (1989). These rights may only be waived by the guarantor, surety or other obligor after default. NRs 40.495(1)(1989).

What are the rights under One Action Rule?

In Nevada, a deficiency judgment can be filed under non statutory foreclosure provisions without having filed a judicial foreclosure.

                             What is a deed of Trust in Nevada?

         The most common type of security interest in real property in Nevada is a Deed of Trust. A DOT has three parties.

    Lender: It is the first party who is referred to as “Beneficiary.”

     Borrower: It is the second party who is referred to as the “Maker”, or “Grantor”, or  “Trustor” who conveys legal title to the property to the Trustee.

      Trustee: This is the third party who holds legal title to the property.

     Process: A DOT can be foreclosed in a simple process and cheaper as well. A Trustee sells the property encumbered by the DOT. All the lender needs to do in order to foreclose on a DOT is to determine that an even of default has occurred under the DOT and have the trustee conduct non-judicial foreclosure proceedings. Here, in Nevada, the trustee sale does not entail redemption. The borrower, in Nevada, does not have the statutory rights of redemption unlike the judicial foreclosure where the right of redemption lasts one year. Compare NRs 107.080(5) (no right of redemption in a foreclosure on a DOT ) with NRs 21.210 (one year period of redemption).

Determination of Default.

 Your default notice also consists of a determination of default. It can be monetary or non monetary.  Monetary is when it is linked to borrowers failure to pay, failure to pay property taxes, failure to pay homeowners association assessments and failure to pay special improvements and other assessments against the property.  The non monetary events of default are spelled out in the notice of default and Deed of Trust as well as related loan documents. They can be failure to insure property, the failure to maintain debt service coverage ratios and waste.

Acceleration of Obligation:

 A trustee under a deed of trust may exercise its statutory power of sale (commencement of foreclosure process) without judicial intervention in Nevada. NRs 107.080(1). Judicial foreclosure is also permitted under Nevada laws though seldom exercised. (NRs 40.430-40-450). They carry with them a one year right of redemption which lenders does not like it as they like to close this chapter once for all.

Steps in Foreclosure In Nevada:

1.            The beneficiary or the trustee to execute a notice of breach and election to sell which is usually accompanied by an unrecorded Declaration of Default. (NRS 107.080(2)(b). The beneficiary executes the notice, but the trustee records it. The notice of breach and election to sell must be recorded in the county in which the property encumbered by the trust deed is situated. The notice of breach and election to sell must also be mailed by registered or certified mail, return receipt requested with postage prepaid, to the address of the trustor and to the person who holds the title of record, if known, otherwise to the address of the property. (NRS 1076.080(3).

 2.            The notice and election must describe the deficiency in performance or payment, and may contain a notice of intent to accelerate the entire unpaid balance if the terms of the obligation so permit. (NRS 107.080(3).

 3.            Within ten days of recording and mailing to the trustor the notice of default, copies of the notice must also be sent by registered or certified mail, return receipt requested, to each person who had either (1) filed a request for a copy of the notice; or (2) holds a record interest in the property subordinate to the deed of trust being foreclosed. Additionally, 20 or more days before the sale, the trustee must mail a copy of the notice of the time and place of the sale to the same parties by registered or certified mail, return receipt requested. (NRS 107.90)

 4.            Under Nevada law, it is immaterial whether the notice is actually received by the trustor. Turner v. Dewco Services, Inc., 87 Nev 14. 479 P.2d 462 (1971).

 5.            NRS 107.080(2)(a) provides that no power of sale may be exercised unless the trustor or his successor in interest, a beneficiary under a subordinate deed of trust or any other person with a subordinate lien or encumbrance of record (trustor or interested persons) has, for a period of 35 days, “failed to make good the deficiency in performance or payment….” The 35-day period commences on the first day following the day upon which the notice and election is recorded and mailed to the grantor and to the record owner of the property in the manner specified above. NRS 107.080(3). If the trustor or other interested person “make good” the deficiency in payment or performance within 35-day period, the trustee’s power of sale may not be exercised, and the obligation may not be accelerated. NRs 107.80(2)(a), (3). The 35-day period in the statue exists independently of any notice or cure periods contained in the applicable notes or deeds of trust. If the notice of breach contains a permitted election to accelerate and the breach is not cured within the 35-day period, the trustor or other interested persons can thereafter only prevent the sale by tendering the entire unpaid balance of the obligation, as well as any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment. NRS 107.080(3).

 6.            Nevada Revised Statutes Chapter 107 governs Deeds of Trusts. The transfer of real property may be made in trust to secure loans and other obligations. See NRs 107.020. In the event a transfer is made in trust to secure payment, the Trustee is granted a power of sale which may be exercised if an event of default has occurred. See generally NRS 107.080.

 How a Foreclosure Process in Nevada is Commenced?

1.            The lender must first determine that an event of default has taken place.

2.            The lender employs the Trustee or a successor.

3.            The Trustee will prepare and record in the Office of the County of Records of the County in which the property is located a Notice of Default and Election To Sell. (NRS 107.080).

 4.            The Notice of Default and Election to Sell must be mailed by registered or certified mail, return receipt requested Election to Sell must be mailed by registered or certified mail, return receipt requested and postage prepaid, to the grantor of the Deed of Trust, the person who holds title of record on the date of the Notice of Default and Election to Sell, each guarantor or surety of the debt, NRS 107.095(1), and any person who recorded a request for a Notice of Default and Election to Sell. (NRS 107.090.

 5.            On the first day after the Notice of Default and Election to Sell is recorded and sent by mail to all interested parties, the borrower and the other obligors are then given 35 days to make good the deficiency in payment or performance. NRs 107.080(2)(a)(2). This essentially allows the borrower or other obligors to de-accelerate the default under the Deed of Trust and terminate the foreclosure proceedings.

 6.            In the event the borrower or other party in interest fails to cure the deficiency in payment or performance, the Trustee must wait until the expiration of three months following the recording of the Notice of Default and Election to Sell (55 days after the 35 day reinstatement period expires) before giving notice of the time and the place for the sale of the real property (NRS 107.080). The notice of the time and place for the sale of the real property must be published in accordance with Nevada’s execution statutes.

 Requirements of Publication for the Notice Under Nevada Laws

 Nevada statute requires the following publication of the notice of the date, time and place of the sale:

 (1) Personal service or service by registered mail to the last known address of each person entitled to Notice of Default and Election to Sell;

  (2) The posting of a similar notice particularly describing the property , for twenty days successively, in three public places of the township or city where the property is situated in or where the property is to be sold; and

  (3) Publishing a copy of the Notice three times, once each week for three successive weeks, in a newspaper, if there is one the county. (NRS 21.130(c).

  (4) In addition to the notice required by Nevada’s execution statutes, the Trustee is required to, at least twenty days before the date of the sale, deposit in the United States mail and envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the Notice of time and place of sale, addressed to each person who has recorded a Request for Notice of Default and Sale. See NRS 107.090(4).

  (5) If the Trustee fails to give any person liable to the beneficiary or any other person who has requested a Notice of Default and Sale the required notices, that person may be released of its obligation to the lender. NRs 107.095.

  (6) NRs 107.080(4) allows the Trustee to conduct the sale at the Trustee’s office.

  (7) At the foreclosure sale, the Trustee may sell the real property by public auction. Generally, the lender will provide the trustee with a minimum credit bid before the foreclosure sale. The amount of the credit bid may be for the full amount of the debt owed to the beneficiary or only a portion of what is owed to the beneficiary. Any person or entity may attend the foreclosure sale and bid for the real property.

 What is Nevada’s “One Action Rule”?

 Nevada has adopted a one-action rule. It provides that there may be only one action to collect a debt secured by a mortgage or other lien. The Nevada One Action rules provides: (NRs 40.430(1)-(3).

             1.            There may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provision of this section and NRS 40.433 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale or the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRs 40.462.

                 2.            This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred.

                 3.            A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

 Conclusion: The Foreclosure–The End of the Dream:

        The foreclosure is the final and definitive step and the end of the whole nightmare process. There is no right of redemption for a non judicial foreclosure in Nevada. The acceptance of the winning bid concludes the bidding process. The execution sale is final and deprives the debtor of any entitlement to the rights of ownership in the property. It is final elimination of any liens on the property along with the junior encumbrances.

What is right of Redemption?

         Few words on redemption: The foreclosure process may not be final unless a final remedy can be exercise in Nevada, and that is called right of redemption. There is no redemption in non judicial foreclosures. However, there is one year period of redemption in a judicial foreclosure sale in Nevada. Right of redemption is paying off all the existing monetary obligations up to and before the final fall of the hammer. The full amount may consist of all delinquent amounts, plus interest and attorney fees and other publication costs. Under Nevada law, there are no rights of redemption in connection with a properly conducted non-judicial foreclosure sale. NRS 107.080(5). There is one year right of redemption in a judicial foreclosure sale (NRS 21.210)

 What is Deficiency Judgment, and Where This Money Will Come From?

                 As it is happening quite often these days, the Trustee will sell property at a foreclosure sale for less than the amount which is owed to the creditor or beneficiary under the Deed of Trust. Deficiency judgments are governed by NRs 40.451 to 40.459. The beneficiary must file the deficiency action within six (6) months after the date of the foreclosure sale or the deficiency action will be time barred. Specifically, NRs 40.455(1) provides:

 Upon application of the judgment creditor or the beneficiary of the deed of trust within six months after the date of the foreclosure sale or the Trustee’s sale held pursuant to NRs 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or beneficiary of the deed of trust if it appears from the sheriff’s return or the recital of consideration and the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively. NRS 40.455(1)

 Nevada law places stringent limitations on the amount of a money judgment, which may be recovered against the debtor, guarantor or surety who is personally liable for the deficiency. The court shall not render a deficiency judgment for more than:

 1.     The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the  sale; or

 2.      The amount which is the difference between the amounts for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lessor amount.

 3.       The court may also consider expert appraisal testimony to evaluate the fair value of the property.

 4.      The junior lien holder if their rights are not properly extinguished can also sue for deficiency judgment.

 5.     Nevada law provides that the anti deficiency legislation protects a guarantor and any other entity that is personally liable for the debt. See generally NRS 40.459.

 



DANE

Ron Victor asked:


The term foreclosure refers to the circumstances, which arise due to the nonpayment of loan to the lender. When the borrower failed to pay back the money borrowed to the lender, then the lender will transfer the ownership of house property to him. The foreclosure arises when the owner of the property failed to make payment to the lender, the property will be seized. Losing the house property for not paying of foreclosure is a ridiculous task. Some steps can be followed to avoid foreclosure. There are so many alternatives available to avoid foreclosure.

Foreclosure Involves Many Stages

Stopping foreclosure is not the difficult process. There are several stages involves to pay off the current loan and avoid foreclosure. When the owner failed to pay money for a long period say 5 to 6 months then the lender ask to obtain a notice from the county record office. This notice will make the borrower to face the foreclosure and starts with replacement period.

If the borrower fails to correct the foreclosure within few months, say three months then foreclosure date for sale will be intimated. The notice of sale will be issued to the homeowner and this notice will be posted on the property. The notice of sale will recorded in the county record office and also published in the newspaper.

The foreclosure occurs where the property is located. In the notice of sale the time and location of the foreclosure will be properly designed. In the sale, the property is auctioned to the highest bidder.

Foreclosure Auction

In the auction the opening bid for the property is foreclosed by the foreclosing lender. The opening bid will be equivalent to the outstanding loan, interest accrued, additional fees and attorney fees related with the trustee sale. Compared to the opening bid, if no bid is higher than the property, the property will be purchased by the attorney who conducts the sale for the lender. The property will be deemed as REO if the opening bid is not met. It occurs because many of the properties listed for sale at the foreclosure auctions are worth less than the total amount payable to the lender. When a property has been purchased in the foreclosure auction sale, all small liens other than the property taxes will be swabbed out. The priority of lien will be determined by the date of recording.

Buying Homes On Foreclosure

Buying homes on foreclosure is said to be good purchase. If you are interested to buy a property on foreclosure, then you can search either on online or through professional realtor.

1. Search the foreclosed property either on online or through a professional realtor. The realtor will help you to find a successful foreclosed property. The realtor may always be updated with the real estate information.

2. If you are searching a foreclosure property through a selling agent you have to pay a commission to him at the time of purchase. But if you obtain a foreclosed property through a realtor you need not want to pay commission and find good foreclosed property.

3. Time is essential for purchase of foreclosure property. If you are paying for a foreclosure property through a loan or through cash, maintain proper records.

4. While purchasing a foreclosed property obtain some few bids from different contractor to estimate the cost.

5. If the property is going to be sold in the market, then ask the realtor to estimate the market value of the property going to be sold.

6. Additional cost or maintenance cost can be estimated to the tax department to get exemption or deduction.

7. After purchase of the foreclosed property, the purchaser receives the title under the special warranty deed. This title protects the buyer. Each lender obtains an insurance protection from the loan.

8. Foreclosure properties are highly profitable. But it requires more alertness while collecting details. The experienced realtor will handle the situation more carefully.



GROVER