Judicial Foreclosure vs. Non-Judicial Foreclosure

Judicial Foreclosure
Non-Judicial Foreclosure

In a judicial foreclosure, the lender sues the defaulting borrower in state court in order to auction the property to recoup unpaid debts. In non-judicial foreclosures, the lender auctions the property without having to go to court. Rules regarding which type of foreclosures are allowed vary depending upon the state, with about half of the 50 states using a judicial foreclosure system.

Comparison chart

Edit this comparison chart

Judicial Foreclosure

Non-Judicial Foreclosure

Process Lender sues the borrower in state court. Debtor receives a notice of default (NOD) and is told of intent to sell property.
Outcome Property is auctioned by county sheriff or another official. Sheriff issues a deed to winning bidder. Property is auctioned by lender. The lender itself can bid. Highest bidder becomes property owner, but may need to handle unpaid property taxes or eviction notices for current tenant.
Officials Involved County sheriff; courts. County recorder to record notices and the deed upon sale.
If Property Fails To Sell Lenders receive the deed. Lenders receive the deed.
States Where Available All except Michigan, New Hampshire, Tennessee, Utah, West Virginia and the District of Columbia. Just over half of the US.

Contents: Judicial Foreclosure vs Non-Judicial Foreclosure

edit Process of Foreclosure

The process varies from state to state and can be rapid or lengthy. Alternative options, such as refinancing, temporary arrangements with the lender or bankruptcy, can help homeowners avoid foreclosure.

In judicial foreclosure, the lender must prove that the borrower has defaulted on their loan and pursue court action. If the borrower cannot pay the debt, the property is sold at auction by the county sheriff or another official. The winning bidder receives the deed to the property. The process usually takes between 6 months and 2 years.

As the vast majority of foreclosures are uncontested, the U.S. financial industry has lobbied since the 19th century for non-judicial foreclosure – foreclosure that occurs out of the courts. Non-judicial foreclosure occurs when a mortgage contains a power of sale clause, allowing the lender to initiate a foreclosure sale without going through the courts. The lender issues a notice of default and notifies the borrower of this fact, before conducting an auction of the home. The lender itself can bid in the auction, and the winner receives the deed to the home, although they then might be forced to sue for the eviction of the current residents. The process usually takes between 1 month and 1 year.

edit Rules vary by state

Judicial foreclosure is an available option in all US states except Michigan, New Hampshire, Tennessee, Utah, West Virginia and the District of Columbia.

Non-judicial foreclosures are available in just over half of the US: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Iowa, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia.

In states that allow both kinds of foreclosure, non-judicial foreclosure is used if the borrower signed a mortgage including a power of sale clause, which allows the lender to sell the property to recoup unpaid debts. If this clause was not signed, the lender must use judicial foreclosure.

Judicial vs non-judicial rules by state (data from RealtyTrac)

edit Impact on Housing Recovery

The Mortgage Bankers Association (MBA) and other lending industry organizations tend not to like the judicial foreclosure system because it adds to their costs. In a December 2012 article in the New York Times, the industry argued that recovery in the housing market was slower in states that force lenders to go to court before foreclosing. Judicial foreclosures took more than twice as long in states like New York and New Jersey than the national average. However, the reason for that was not always that the courts were bogged down. Often, lenders and mortgage servicers themselves were overwhelmed with the volume of foreclosures and were unable to gather all the necessary documentation for the courts in time. As of the end of September 2012, according to the MBA, 6.6% of all loans were in foreclosure in judicial states, compared with 2.4% in nonjudicial states. The MBA has blamed this on a "sluggish" process in judicial foreclosure states for a backlog in foreclosures.

edit Preventing Foreclosures

A 2011 study compared states that require lenders to seek judicial permission to foreclose with states that do not. The study found that:

Borrowers in judicial states are no more likely to cure and no more likely to renegotiate their loans, but the delays lead to a build-up in these states of persistently delinquent borrowers, the vast majority of whom eventually lose their homes. found that avoiding foreclosure was no more likely for borrowers subject to either judicial foreclosure, or laws forcing lenders to wait 90 days before beginning foreclosure proceedings, than it was for other borrowers.

edit Recent News

edit Trivia

edit Foreclosure stats

According to Realty Trac, based on the US data for May'2012,

  1. TOP foreclosure cities are
    1. Miami, FL
    2. Chicago, IL
    3. Las Vegas, NV
    4. Los Angeles, CA
    5. Phoenix, AZ
  2. Number of New Foreclosures grew 9.12% from Apr'2012 (188,780) to May'2012 (205,990).
  3. Number of Foreclosures Sold for Apr'2012 (66,529) dropped 22.37% as compared to Mar'2012 (85,702).
  4. Avg Sales Price for a foreclosed property grew 16.64% from Apr'2012 ($170,532 ) to May'2012 ($198,915).


edit Books and Videos on Foreclosure

This is a list of useful, popular books and videos about foreclosures on Amazon.com:

edit References

Share this comparison:

If you read this far, you should follow us:

"Judicial Foreclosure vs Non-Judicial Foreclosure." Diffen.com. Diffen LLC, n.d. Web. 19 Dec 2014. < >

Comments: Judicial Foreclosure vs Non-Judicial Foreclosure

Related Comparisons Follow Diffen
Make Diffen Smarter.

Log in to edit comparisons or create new comparisons in your area of expertise!

Sign up »
Top 5 Comparisons

share

Up next

Foreclosure vs. Bankruptcy