It is an unfortunate commentary, but when economic activity declines and
housing activity decreases, more real property enters the foreclosure process.
High
interest rates and creative financing arrangements are also contributing
factors.
When prices are rapidly accelerating during a real estate “bonanza”, many
people go to any lengths available to get into the market through investments in
vacation homes, rental housing and trading up to more expensive properties. In
some cases, this results in the taking on of high interest rate payments and
second, third and even fourth deeds of trust. Many buyers anticipate that
interest rates will drop and home prices will continue to escalate. It is
possible that neither will occur and borrowers may be faced with large balloon
payments becoming due. When payments cannot be met, the
foreclosure
process looms on the horizon.
In the foreclosure process, one thing should be kept in mind: as a general
rule, a lender would rather receive payments than receive a home due to a
foreclosure. Lenders are not in the business of selling real estate and will
often try to accommodate property owners who are having payment problems. The
best plan is to contact the lender before payment problems arise. If
monthly payments are too hefty, it may be that a lender will
be able to make some alternative payment arrangements until the owner’s
financial situation improves.
Let’s say, however, that a property owner has missed payments and has not
made any alternate arrangements with the lender. In this case, the lender may
decide to begin the foreclosure process. Under such circumstances, the lender,
whether a bank, savings and loan or private party, will request that the
trustee, often a title company, file a notice of default with the county
recorder’s office. A copy of the notice is mailed to the property owner.
If the default is due to a balloon payment not being made when due, the
lender can require full payment on the entire outstanding loan as the only way
to cure the default. If the default is not cured, the lender may direct the
trustee to sell the property at a public sale.
In cases of a public sale, a notice of sale must be published in a local
newspaper and posted in a public place, usually the courthouse, for three
consecutive weeks. Once the notice of sale has been recorded, the property owner
has until 5 days prior to the published sale date to bring the loan current. If
the owner cures the default by making up the payments, the deed of trust will be
reinstated and regular monthly payments will continue as before.
After this time, it may still be possible for the property owner to work out
a postponement on the sale with the lender. However, if no postponement is
reached, the property goes on the block. At the sale, buyers must pay the amount
of their bid in cash, cashier’s check or other instrument acceptable to the
trustee. A lender may “credit bid” up to the amount of the obligation being
foreclosed upon.
With the recent attention given to foreclosure, there also has been
corresponding interest in buying
foreclosed
properties. However, caveat emptor: buyer beware. Foreclosed properties are
very likely to be burdened with overdue taxes, liens and clouded titles. A buyer
should do his homework and ask a local title company for information concerning
these outstanding liens and encumbrances. Title insurance may or may not be
available following a foreclosure sale and various exceptions may be included in
any title insurance policy issued to a buyer of a foreclosed property.
Your local title company will be happy to provide additional information.