What Is Foreclosure?

What Is Foreclosure?

Foreclosure is the legal process by which a lender attempts to recover the amount owed on a defaulted loan by taking ownership of and selling the mortgaged property. Typically, default is triggered when a borrower misses a specific number of monthly payments, but it can also happen when the borrower fails to meet other terms in the mortgage document.

Understanding Foreclosure

The foreclosure process derives its legal basis from a mortgage or deed of trust contract, which gives the lender the right to use a property as collateral in case the borrower fails to uphold the terms of the mortgage document.

The lender sends a notice of default after 90 days of missed payments. The loan is handed over to the lender's foreclosure department, and the borrower typically has another 90 days to settle the payments and reinstate the loan (this is called the reinstatement period).

At the end of the reinstatement period, the lender will begin to foreclose if the homeowner has not made up the missed payments.

The Foreclosure Process Varies by State

Each state has laws that govern the foreclosure process, including the notices a lender must post publicly, the homeowner's options for bringing the loan current and avoiding foreclosure, and the timeline and process for selling the property.

In 22 states—including Florida, Illinois, and New York—judicial foreclosure is the norm. This is where the lender must go through the courts to get permission to foreclose by proving the borrower is delinquent. If the foreclosure is approved, the local sheriff auctions the property to the highest bidder to try to recoup what the bank is owed, or the bank becomes the owner and sells the property through the traditional route to recoup its losses.

The other 28 states—including Arizona, California, Georgia, and Texas—primarily use non-judicial foreclosure, also called the power of sale. This type of foreclosure tends to be faster than a judicial foreclosure, and it does not go through the courts unless the homeowner sues the lender.

How Long Does Foreclosure Take?

Properties foreclosed in the third quarter of 2020 (the most recent data available) had spent an average of 830 days in the foreclosure process, according to the U.S. Foreclosure Market Report from ATTOM Data Solutions, a property data provider. This is a 21.1% increase from the previous quarter's average of 685 days in the foreclosure process, but down slightly from 841 days in Q3 2019.1

The average number of days varies by state because of varying laws and foreclosure timelines. The states with the longest average number of days for properties foreclosed in the third quarter of 2020 were:1

• Hawaii (1,741 days)
• New Jersey (1,527 days)
• New York (1,423 days)

States with the shortest average times to foreclose during the same period were:

• Virginia (180 days)
• Minnesota (208 days)
• Alaska (213 days)

Can You Avoid Foreclosure?

Even if a borrower has missed a payment or two, there may still be ways to avoid foreclosure. Some alternatives include:

• Reinstatement: During the reinstatement period, the borrower can pay back what he or she owes (including missed payments, interest, and any penalties) before a specific date to get back on track with the mortgage.
• Short refinance: This is a type of refinancing where the new loan amount is less than the outstanding balance, and the lender may forgive the difference to help the borrower avoid foreclosure.
• Special forbearance: If the borrower has a temporary financial hardship—such as medical bills or a decrease in income—the lender may agree to reduce or suspend payments for a set amount of time.

Consequences of Foreclosure

If a property fails to sell at a foreclosure auction or if it otherwise never went through one, lenders—often banks—typically take ownership of the property and may add it to an accumulated portfolio of foreclosed properties, also called real-estate owned (REO).

Foreclosed properties are typically easily accessible on banks' websites. Such properties can be attractive to real estate investors because in some cases, banks sell them at a discount to their market value, which of course, in turn, negatively affects the lender.

For the borrower, a foreclosure appears on a credit report within a month or two—and stays there for seven years from the date of the first missed payment. After seven years, the foreclosure is deleted from the borrower's credit report.