JUDICIAL VS. NON-JUDICIAL FORECLOSURE IN MISSOURI

Roy Legal Group

MISSOURI

Conveyance is by warranty deed. Deeds of trust are the customary security instruments and allow private power of sale. The trustee must be named in the deed of trust and must be a Missouri resident. Foreclosure involves publication of a sale notice for 21 days, during which time the debtor may redeem the property or file a noteice of redemption. The foreclosure sale buyer receives a trustee’s deed. – Judicial Foreclosure Available: Yes – Non-Judicial Foreclosure Available: Yes – Primary Security Instruments: Deed of Trust, Mortgage – Timeline: Typically 60 days – Right of Redemption: Yes – Deficiency Judgments Allowed: No In Missouri, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process. Judicial Foreclosure The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder. Non-Judicial Foreclosure The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power of Sale Foreclosure Guidelines”. Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the foreclosure may proceed as follows: A notice of sale must be mailed the borrower, at his last known address, at least twenty (20) days prior to the scheduled day of sale. The notice of sale must also be published in a newspaper within the county. The sale is conducted by the trustee at public auction for cash to the highest bidder. Anyone may bid, including the lender. If the lender is the winning bidder, the borrower has one year (12 months) to redeem the property. MONTANAConveyance is by warranty deed, corporate deed, or grant deed. Mortgages, deeds of trust, and unrecorded contacts of sale are the security instruments. Mortgages require judicial foreclosure, and there is a 6-12-rnonth redemption period following sale. Foreclosure on deeds of trust involves filing a notice of default and then holding a trustee sale 120 days later. – Judicial Foreclosure Available: Yes – Non-Judicial Foreclosure Available: Yes – Primary Security Instruments: Deed of Trust, Mortgage – Timeline: Typically 150 days – Right of Redemption: No – Deficiency Judgments Allowed: Varies In Montana, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process. Judicial Foreclosure In judicial foreclosure, a court decrees the amount of the borrowers debt and gives him or her a short time to pay. If the borrower fails to pay within that time, then the court will issue a notice of sale. Non-Judicial Foreclosure The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power of Sale Foreclosure Guidelines”. Power of Sale Foreclosure Guidelines If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows: A notice of sale must be recorded in the county where the property is located and then: 1) mailed, by registered or certified mail, to the borrower at his last known address at least 120 days before the foreclosure sale; 2) published once a week for three (3) successive weeks in a newspaper of general circulation in the county where the property is located; and 3) posted on the property at least twenty (20) days before the foreclosure sale. The notice must contain the time, date and place of sale, the borrowers, lenders and trustees name, a description of both the property and the default, and the book and page where the deed is recorded. The trustee must conduct the sale between the hours of 9:00 am and 4:00 pm at the courthouse in the county where the property is located. The property must be sold at public auction to the highest bidder. The sale may be postponed for up to fifteen (15) days by posting a notice at the time and place where the sale was originally scheduled. Lenders may not obtain a deficiency judgment against the borrower and the borrower has no rights of redemption.