Welcome to the Foreclosure Process section of FindLaw's Real Estate Law Center. The foreclosure process is slightly different in every state, but certain aspects of the process are universal. If you are facing foreclosure because of missed mortgage payments, or just need help understand the laws and processes that may occur in your state, you've come to the right place. This section addresses both federal and state laws affecting foreclosure, including foreclosure by judicial or power of sale; affidavits and "robo-signing;" foreclosure tax relief; and regaining ownership after foreclosure. This section also includes state-specific information on foreclosure and what you can do to stop or slow down the foreclosure process.
Federal Foreclosure Laws
While the foreclosure process is determined through state laws, federal laws also provide regulations and limits intended to protect homeowners. These include bankruptcy laws, the Soldier and Sailors Relief Act, and parts of the Dodd-Frank Act.
In response to the financial crisis of 2008, the Title X of the Dodd-Frank Act established the Consumer Financial Protection Bureau (CFPB) as an independent agency to monitor and regulate how consumer financial products are are offered and serviced. Among other protections, the CFPB implemented new procedures to provide struggling homeowners with better access to foreclosure avoidance tools. These regulations also require loan services to make good faith efforts to contact homeowners when they miss payments before initiating a foreclosure.
Soldier and Sailors Relief Act
Signed in 1940, this law allows active duty military service members to set aside a default judgment leading to a foreclosure. If a mortgage holder files a foreclosure action against a mortgagor who fails to answer the legal complaint, they must file an affidavit with the court to prove he is not on active duty in the military. If it can be proven that the mortgagor's service is impacting his ability to pay the mortgage, he may stay the foreclosure for the length of his service.
A bankruptcy filing automatically stays (or "puts on hold") a foreclosure proceeding, which may be lifted or modified for lack of equity in the home or other causes. If the bankruptcy is asking for discharge of all debts, however, the mortgage holder may either foreclose the property (if there is no significant equity) or sell it through bankruptcy court.
Affidavits and Robo-signing
In the context of the foreclosure process, an affidavit is a document used for attesting to a set of facts. By signing a affidavit, the signee is stating (under penalty of perjury) that the facts on the document are true. For a foreclosure affidavit, the mortgage servicer typically confirms that the foreclosure is in fact valid and that the servicer has the right to foreclose due to a default on the mortgage. The borrower has an opportunity to contest a foreclosure and may present documentation to counter the servicer's claim.
The term "robo-signing" refers to practice of signing these affidavits quickly without adequately verifying their content. Mortgage servicers processing high volumes of mortgages are sometimes accused of "robo-signing" in order to speed up foreclosures, which many borrowers have challenged as inadequate proof that a foreclosure should occur.
The borrower (or mortgager) may challenge a summary judgment and delay foreclosure by citing robo-signing or inaccuracies in the affidavits. Since mortgages tend to be bought and sold frequently, important information in the affidavits sometimes gets lost.
Foreclosure is a big deal, so learning about the laws and the general procedures will help you prepare. Click on a link below to learn more.
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