The Foreclosure Process

By: Hamid Grinage

One of the realities of the real estate world is that when housing and economic activity declines, there are more homeowners who end up facing the foreclosure process. When appreciation is high for a sustained period, such as the Bay Area market from 2001-2005 people tend to be more aggressive and will go to great lengths to buy. In fact, lenders were going to great lengths to lend to those who maybe were not well qualified. In many of these cases, borrowers chose interest only loans with balloon payments and took out second, third and even fourth deeds of trust. Many of these buyers expected the market to continue the way it has, which would mean double digit appreciation for the foreseeable future. Of course we all witnessed the market come down in 2005, with appreciation coming to a halt in most areas, and prices even dipping in some other markets. The buyers who had adjustable rate loans with large balloon payments and/or interest rates that were set to reset after the first two or three years of the loan are the ones who are especially vulnerable. When the loan payments cannot be made, the foreclosure process looms on the horizon.

As a general rule, the lender would rather keep receiving the payments as opposed to taking the home and having to sell it. The lenders do not deal with selling real estate and will work with owners who are having payment problems. Sometimes the lender will restructure the payments for a certain period of time to allow the owner to get back on his/her feet. With this in mind, it's always best to contact the lender before problems arise. There is a chance that something may be able to be done that can help the owner avoid foreclosure.

However when a homeowner has missed several payments and has not contacted the lender to make some type of arrangement, the lender may decide to begin the foreclosure process. The lender could be a bank, savings and loan or private party. The first step they will take is that the lender will request that the trustee (which is often a title company) file a notice of default with the county recorders office. A copy of the notice will also be delivered to the owner. If the default is due to a balloon payment not being made by the due date, the lender can require payment of the full balance of the loan as the only way to remedy the situation. If the payments are not met, the lender can direct the trustee to sell the property at a public sale. Before the public sale takes place, a notice of sale must be published in a local newspaper and posted in a public place for three consecutive weeks. Once the notice of sale has been recorded, the homeowner has up until 5 days before the published sale date to bring the loan to a current status. If the owner makes the necessary payment, the deed of trust will be reinstated and the monthly payments will continue as they did before. Even after the 5 days, it's still possible for the owner to negotiate a postponement of the sale with the lender. However if there is no other agreement made, the property goes up for sale. At the sale, the buyers must pay the amount of their bid in cash, cashiers check or another form acceptable to the trustee.

With all the recent attention to foreclosures, many people have become interested in purchasing foreclosed homes. Any buyer interested in purchasing a foreclosed property needs to be aware of the risks involved. Foreclosed homes are very likely burdened with overdue taxes, liens and clouded titles. Any prospective buyer must do his/her homework and ask a local title company for all information concerning the outstanding liens and encumbrances. Another potential risk is that title insurance may or may not be available after a foreclosure sale, and if it is available then there could be exceptions included in the policy which will weaken the coverage.

Foreclosures
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