Is it possible the bank will never foreclose?

[tobee43]

August 09 for me and nothing has happened since end of Sept 10. My past lawyer said 6-9 months estimate from April 2010 when we got our LP.

i'll keep my fingers crossed for you that's it longer, but you know here in the middle distict there are so many empty homes, condo's etc., it wouldn't surprise me if it may be longer. i can't believe the banks here have soooooo much inventory.

[tobee43]

I guess I'll do some searching to see what the statute of limitations are in Arizona...I just wonder are there some houses that the bank will just let be and never do any thing with, is that possible? Because until our names are off the deed or whatever they do to get paid out with FHA loans we won't be able to buy again so it could be a really long time. Can I even list the house for sale again?

it really depends most times whether your state is going through either a judicial and non-judicial state. here's a blog i put a while ago so your can check your state: http://www.bkforum.com/entry.php?398....-non-Judicial

Judicial and Non-Judicial Foreclosures

Each state in the U.S. handles it's real estate foreclosures differently, it's important to understand those differences and know your specific state's procedures. The terms used and time frames vary greatly from state to state, but the following information provides a general overview of the different processes and considerations. If you haven't done so yet, you can review our guide to each state's procedures at foreclosure procedures.

Judicial Foreclosures
Judicial foreclosures are processed through the courts, beginning with the lender filing a complaint and recording a notice of Lis Pendens. The complaint will state what the debt is, and why the default should allow the lender to foreclose and take the property given as security for the loan. The homeowner will be served notice of the complaint, either by mailing, direct service, or publication of the notice, and will have the opportunity to be heard before the court. If the court finds the debt valid, and in default, it will issue a judgment for the total amount owed, including the costs of the foreclosure process. After the judgment has been entered, a writ will be issued by the court authorizing a sheriff's sale. The sheriff's sale is an auction, open to anyone, and is held in a public place, which can range from in front of the courthouse steps, to in front of the property being auctioned. Sheriff's sales will require either cash to be paid at the time of sale, or a substantial deposit, with the balance paid from later that same day up to 30 days after the sale. Check your local procedures carefully. At the end of the auction, the highest bidder will be the owner of the property, subject to the court's confirmation of the sale. After the court has confirmed the sale, a sheriff's deed will be prepared and delivered to the highest bidder, when that deed is recorded, the highest bidder is the owner of the property.

Non-Judicial Foreclosures

Non-judicial foreclosures are processed without court intervention, with the requirements for the foreclosure established by state statutes. When a loan default occurs, the homeowner will be mailed a default letter, and in many states, a Notice of Default will be recorded at approximately the same time. If the homeowner does not cure the default, a Notice of Sale will be mailed to the homeowner, posted in public places, recorded at the county recorder's office, and published in area legal publications. After the legally required time period has expired, a public auction will be held, with the highest bidder becoming the owner of the property, subject to their receipt and recordation of the deed. Auctions of non-judicial foreclosures will generally require cash, or cash equivalent either at the sale, or very shortly thereafter.

It is important to note that each non-judicial foreclosure state has different procedures. Some do not require a Notice of Default, but start with a Notice of Sale. Others require only the publication of the Notice of Sale to announce the sale, with no direct owner notification required. You need to know the specific procedure for your state.

State by State Foreclosure Procedures:


STATE TYPE OF FORECLOSURE MONTHS TO FORECLOSE
MINIMUM/EXPECTED DEFICIENCY JUDGMENT REDEMPTION PERIOD
Alabama Primarily Non-Judicial 1/3 Possible and Practical 12 Months
Alaska Both 3/4 Not Practical None
Arizona Both 3/4 Not Practical None
Arkansas Both 4/5 Possible and Practical None
California Primarily Non-Judicial 4/4 Not Practical None
Colorado Both 2/5 Possible and Practical 75 Days
Connecticut Judicial/Strict 5/6 Possible and Practical None
Delaware Judicial 3/7 Possible and Practical None
District of Columbia Non-Judicial 2/4 Possible and Practical None
Florida Judicial 5/5 Possible and Practical None
Georgia Primarily Non-Judicial 2/2 Possible and Practical None
Hawaii Primarily Non-Judicial 3/4 Not Practical None
Idaho Non-Judicial 5/6 Possible and Practical None
Illinois Judicial 7/10 Possible and Practical None
Indiana Judicial 5/7 Possible and Practical 3 Months
Iowa Both 5/6 Not Practical 6 Months,if judicial
Kansas Judicial 4/4 Possible andPractical 6-12 Months
Kentucky Judicial 6/5 Possible and Practical None
Louisiana Judicial 2/6 Possible and Practical None
Maine Primarily Judicial 6/10 Possible and Practical None
Maryland Judicial 2/2 Possible and Practical None
Massachusetts Non-Judicial 3/4 Possible and Practical None
Michigan Both 2/2 Possible and Practical 6 Months
Minnesota Both 2/3 Not Practical 6 Months
Mississippi Primarily Non-Judicial 2/3 Possible and Practical None
Missouri Primarily Non-Judicial 2/2 Possible and Practical None
Montana Primarily Non-Judicial 5/5 Not Practical None
Nebraska Judicial 5/6 Possible and Practical None
Nevada Primarily Non-Judicial 4/4 Possible and Practical None
New Hampshire Primarily Non-Judicial 2/3 Possible and Practical None
New Jersey Judicial 3/10 Possible and Practical 10 Days
New Mexico Judicial 4/6 Possible and Practical None
New York Judicial 4/8 Possible and Practical None
North Carolina Non-Judicial 2/4 Possible and Practical None
North Dakota Judicial 3/5 Not Possible 60 Days
Ohio Judicial 5/7 Possible and Practical None
Oklahoma Primarily Judicial 4/7 Possible and Practical None
Oregon Non-Judicial 5/5 Not Practical None
Pennsylvania Judicial 3/9 Not Practical None
Rhode Island Both 2/3 Possible and Practical None
South Carolina Judicial 6/6 Not Practical None
Tennessee Non-Judicial 2/2 Possible and Practical None
Texas Non-Judicial 2/2 Possible and Practical None
Utah Both 4/5 Possible and Practical None
Vermont Both 7/10 Possible and Practical None
Virginia Non-Judicial 2/2 Possible and Practical None
Washington Non-Judicial 4/5 Not Practical None
West Virginia Non-Judicial 2/2 Possible and Practical None
Wisconsin Judicial varies/10 Not Practical None
Wyoming Non-Judicial 2/3 Possible and Practical 3 Months

[freeatlast09]

Last payment 3/2009. BofA had stay lifted in 8/2009. They've made no move since then. Of course, our case is a little different in that the Trustee is trying to do a short sale on our house. Check my other posts for that lengthy thread and interesting story of Trustees 'carve-out' fees.

[Resigned2BK]

Would be good to know, eh? We were told by our lawyer to expect it in that 160 day time frame once they accelerate and nothing. When we went to the BofA homeowner outreach event a week and half ago, we came across a couple different homeowners who hadn't been paying since early last year and had been renting for a time only just finally receiving the foreclosure notice. BofA is waiting a long time in their case which makes me tempted to not have us jump the gun so quickly to rent. Hard to know what to do.

[DeadManCrawling]

December 2008 for us. Nothing more than a Lis Pendens and an onslaught of offers to modify from BoA. We don't live there anymore, and BoA has our new address. What they can't seem to fathom is why we would not want to mod a house that costs 3-4k in NORMAL upkeep expenses monthly, and had a 4.5k monthly mortgage.

LOL

[Clabbergirl]

I stopped making mortgage payments in April 2010. I'm in a non-judicial state and the auction was eventually set for 2/24/11. I filed 2 days prior to stop it, and the mortgage co. got their relief of stay on 4/12/11 to start the process over again. It is now 6/8/11, and still no new Notice of Sale for an auction. I'm still in the house but wanting to move before the end of the month. I expected them to move quick after getting the stay lifted, but they haven't. They could've saved themselves the money because now it's discharged. ??

Reading stories of those with deeds in their name years after the BK and it's kind of alarming. Never thought I'd look forward to receiving a NOS again...

[tobee43]

Clabbergirl: Reading stories of those with deeds in their name years after the BK and it's kind of alarming. Never thought I'd look forward to receiving a NOS again...

yes, indeed, and i think it will be happening more and more as time goes on and these banks sit on the properties. i tried so hard to get them to do a deed in lieu, no way will they. i haven't filed a complaint yet, but that's because we brought a home and went around the banks. so, for all i care our names can sit on that deed until HE** freezes over. but it is the principle, we, of course would still like it removed. but until the transfer of sale takes place no dice.

[Clabbergirl]

And because your name is still on the deed, you're legally responsible? This is where I get confused.

[tobee43]

And because your name is still on the deed, you're legally responsible? This is where I get confused.

while this subject has been a source of much controversy on this forum, i'm going out on a thin limb and say absolutely NOT. once your locks are changed and the bank as secured your home, it's theirs.

also, if you have surrendered your house during a bankruptcy and the order is signed by a judge that it's been discharged and closed by the trustee and also signed by the judge; one would considered that message as clear as the nose on one's face.

once the bank takes over the house and it's under their umbrella policy for insurance etc. and they have possession, it really is THEIR responsibility and not yours. IMO...i hope someone can clime with another point of view

[freeatlast09]

once the bank takes over the house and it's under their umbrella policy for insurance etc. and they have possession, it really is THEIR responsibility and not yours. IMO...

I'm 100% with tobee on this issue and yes... it has been discussed ad nauseum.

If you surrendered it, the bank has notified you that they are aware it is vacant, changed the locks, paid the insurance, paid the taxes and possibly sent someone to inspect/secure it, then it belongs to the bank. The name on the deed is just paperwork at that point.

Others on this forum will say "You have to have liability insurance in case someone falls down on the property and gets hurt." I have many questions about this response.
1. What insurance company would even cover you?
2. If, by some miracle, insurance is found and if someone is actually hurt on your former property, would the insurance company really pay the claim? (not likely - yes I have an extreme dislike for insurance companies)
3. If you're responsible for the liability and some persons injury, then that would mean you had to give them permission to be on your property, right? Why were they there? Were they trespassing?
4. Wouldn't someone have to prove negligence to win?
5. How could it be negligence, if you weren't aware of any problem on the property?

I could go on, but you get the point. I'm not an attorney and I'm not saying it's impossible that someone could sue you while your name is on the deed, but I do find it improbable.

If someone that advocates the 'someone falling down' argument could point me to some cases where a surrendered home's previous occupants were sued for liability, I'd like to read them.

With 13% of all homes in the country vacant, you'd think this would be front page news quite bit, wouldn't you?

Just my 2 cents.

[LadyInTheRed]

I'm not an attorney either, but when I thought attending law school by correspondence was a good idea, I did read textbooks on the subject. If I remember correctly, a property owner can be liable for a trespasser's injuries. Also, a person or their property can be damaged by conditions on your property without ever stepping foot on your property. You don't need to be negligent to have liability. Even if you did have to be negligent, not knowing about a danger on property that you still legally own does not mean you were not negligent. In fact, it may be evidence of your negligence.

As the owner on title, you could be sued by somebody who is injured on your property or as a result of conditions on your property. Even if they don't win the suit or you are able to win on a cross complaint against the bank so that they have to pay the judgment, defending the suit will be expensive. The Bank's insurance won't cover you.

All that said, I probably would not get insurance on a property the bank has padlocked. But, I'd make that decision knowing I was taking a risk, however small that risk may be.

[freeatlast09]

As I asked before, please point some links to all the cases where a trespasser was injured on a bk surrendered property and successfully sued the person because they were still on the title. I'm genuinely interested.

PS If a trespasser or someone breaking into an unoccupied (or occupied) home is injured during that act and successfully sues anyone for the injury, I have no hope for the legal system.

Similar thread: http://www.bkforum.com/showthread.ph...990#post469990

[LadyInTheRed]

As I asked before, please point some links to all the cases where a trespasser was injured on a bk surrendered property and successfully sued the person because they were still on the title. I'm genuinely interested.

PS If a trespasser or someone breaking into an unoccupied (or occupied) home is injured during that act and successfully sues anyone for the injury, I have no hope for the legal system.

It really isn't worth my time to search for cases in order to convince you that the current owner of record has some exposure to risk of claims related to the property. For all I know, there has never been such a case, but that doesn't mean there couldn't be one. I just want people in this situation to consider the possible risks. If you disagree with me about what is possible, that's fine with me. Besides, the subject matter of most lawsuits filed can only be determined by reading the complaint in each case. You can't determine for sure whether such a case has ever been filed without going through a lot of court files and reading a lot of complaints.

Also, you ask for successful cases. If somebody sues you, it can be very expensive whether or not you are legally liable. People file lawsuits that they can't win all of the time. If somebody wants to sue somebody for injuries related to real property, they are going to go to the county recorder to find out who is the current owner of record. That is who they are going to sue, even if they also name the bank.

[LadyInTheRed]

Clarification regarding trespassers.

Since I have my textbooks in a nearby box, I decided to pull one out to look up the law regarding trespassers. Generally, a property owner is not liable to trespassers, but there are some limited exceptions. I won't go into the exceptions because I don't think they are likely to apply to the kind of situation we are talking about. If somebody breaks into a house or jumps over a fence and gets hurt, the property owner is not going to be found liable.

[freeatlast09]

Also, you ask for successful cases. If somebody sues you, it can be very expensive whether or not you are legally liable. People file lawsuits that they can't win all of the time.

You seem to have inferred that I'm trying to argue with you - I am not. I'm truly interested in this topic and have searched quite a bit for information. I also never said it would be impossible for someone to sue you - I said improbable. That's really what insurance comes down to - probability and statistics.

You are absolutely right - anyone can sue you for anything at any time and it will be expensive to defend against it. My biggest questions related to this topic are how you would actually find a policy to cover your liability on a vacant house and if you manage to find one, would it cover your legal defense should a claim arise? Obviously, every policy that you could find would be different in it's coverage, but my experience with insurance companies is usually "well... your policy doesn't happen to cover that."

I see this topic a lot on these forums so many people are in this situation and need to make the decision for themselves if they want to take the risk or try and find a policy to cover them. I'm just posting the thoughts rattling around my head - maybe I'm just crazy or wrong. Who knows.