Understanding the Foreclosure Process
What Is foreclosures in Phoenix?
Foreclosure is the process that allows a lender to recover the amount owed on a defaulted loan by selling or taking ownership (repossession) of the property securing the loan. The foreclosure process begins when a lender files the appropriate documents with the appropriate officials (see below for more details).
Colorado Foreclosure Laws
Colorado foreclosures occur through both in-court (judicial) and out-of-court (non-judicial) proceedings.
The judicial process is used when no power of sale is present in the mortgage or deed of trust. The process begins when the mortgage lender files suit with the court system. The borrower then receives a letter from the court demanding payment. Typically, you’ll be given 30 days to respond with payment or a written response to the bank’s attorney and parties involved. If you do not respond within the time limit given, a judgment will be entered and the lender can request sale of the property by auction. If you file a written answer with the court, there is a hearing and the process takes longer and can even be forestalled. If a judgment is entered, then an auction date will be set, usually several months in the future. Once the property is sold, you’re served with an eviction notice by the sheriff’s office, and you must vacate the home immediately.
The most commonly practiced method of foreclosure in Colorado is the non-judicial foreclosure process. It is carried out by a Public Trustee who acts as an impartial party. The process begins when the lender files the required documents with the Public Trustee of the county in which the property is located. The Public Trustee then files a “Notice of Election and Demand” (NED) with the county clerk and recorder. Once the NED is recorded, the Public Trustee Sale of the property is scheduled to take place between 110 and 125 days of the recording.
Pre-foreclosure Period
Many factors can lead to default of payment on a home loan and eventually foreclosure. Many are not the fault of the homeowner. Perhaps it is due to a hardship (loss of income, military deployment, health or family issues) or to “loan fraud” or “creative financing” by the banks (Adjustable Rate or ARM, Option ARM, Negative Amortization, or Interest Only loan). Whatever the cause, facing foreclosure is not an enjoyable experience.
The foreclosure process usually begins after the homeowner has missed several payments and different attempts have been made by the bank to collect. Let’s look at what typically takes place and what you can normally expect.
Day 1: You miss your first payment
Day 1-15: Grace period (Some lenders only allow 10 days)
Day 16-30: A late charge is assessed
Day 30: Borrower is in default
Day 45-60: Lender sends “demand” or “breach” letter, and phone calls begin
Day 60-90: Lender sends letters and makes phone calls. A repayment plan or a loan modification plan may be offered.
Day 90-105: The lender refers the loan to the loss mitigation department/foreclosure department and retains an attorney to handle the foreclosure.
Day 90-?????: The lender’s attorney files the required documents with the Public Trustee, who then files a NED with the county clerk and recorder. Once the NED is recorded, the property is scheduled to be sold within 110-125 days at a Public Trustee Sale.
Notice of Sale / Auction
Once the NED (Notice of Election and Demand) is recorded, the notice must be published in a newspaper of general circulation within the county where the property is located for a period of 5 consecutive weeks. The Public Trustee must also mail a copy of the published notice to the homeowner within 10 days. At least 21 days before the Public Trustee Sale, the Public Trustee must mail a notice to the homeowner describing how to redeem the property and stop the sale.
If the homeowner wants to redeem the property and stop the Public Trustee Sale, he must file an “Intent to Cure” with the Public Trustee’s office at least 15 days prior to the foreclosure sale. He then has up till noon of the day before the sale to bring the loan current and redeem the property.
The Public Trustee typically conducts the sale at the courthouse. Bidders must register in advance and have funds available. At the sale, the public trustee reads the written bid submitted by the lender, then any registered party may bid. The winning bidder is given a certificate of purchase.
