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, the property 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 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:

1. The notice of sale must be posted on the front door of the courthouse for the county in which the property to be sold is located, and three (3) other public places, one of which must be the property itself, at least twenty (20) days prior to sale. The notice must also be served upon the borrower and subordinate lien holders at least twenty (20) days prior to the foreclosure sale.
   
   Additionally, the notice must be published as a Class III legal advertisement in the county where the property is located once a week for four (4) weeks.
   
   Said notice must contain the time and place of the foreclosure sale, the names of the parties to the deed, the date of the deed, recording information, a property description and the terms of the sale.
    
2. The sale must be held at the time and place stated in the foreclosure notice and completed by public auction to the highest bidder. Unless the deed specifies the terms of sale, the buyer must pay one-third (1/3) of the bid amount in cash at the sale.