Wednesday, February 26, 2014

The Judicial Foreclosure Process

If you have been served with a summons and complaint for foreclosure then you are in the Judicial Foreclosure Process.  It is possible to know exactly how the process is progressing along.  You should be served with notices etc. but what if you don't know what these notices indicate.  What if you get a notice showing that the bank filed a "motion for continuance"  That may not tell you anything but it tells us a lot.  Everything that has happened in your case is also entered on your case register on the Oregon Judicial Information Network (OJIN).  An attorney can review your case register and explain to you what is happening in your case, what the major landmarks are, and where you are at in the process.  I will explain the basics below but I encourage you to contact us for a free copy of your case register.  We would be happy to explain it to you and hopefully give you some peace of mind.  We also provide case registers to real estate professionals who need to know where a client or potential client is at in the foreclosure process.  There are two major steps the bank must take to complete a foreclosure listed below. First they must get a judment of foreclosure and second they must have the Sheriff sell the house.  Judicial Foreclosure:  Getting the Judgment To get a judgment the bank must first file a complaint.  They must then serve the complaint on all the defendants and also serve a summons on them telling them that they must appear and answer the complaint if they want to.  Once the bank has served the complaint on all the defendants they then must wait 30 days after serving them to see if the defendant is going to respond or (appear) and defend against the complaint.  If you do not appear then the bank is free to ask the court for a "default judgment" they do this by filing a "motion for an order of default".  A motion is simply a request to have the court do something.  In this case they would be asking the court to order that since you did not show up to answer they can go ahead and get a judgment.  On your case register you can tell that an order of default has already been obtained if the case register has notations for a "motion for order of default" and then somewhere below that shows an "order of default" entered.  Once there is a default judgment in place there isn't much you can do.  But, If you were not served or there are other facts that bring new evidence to light etc. it is possible to get a judgment "set aside" and still have a chance to answer.  Of course it is much better to answer before the bank obtains a default judgment.  On your case register the first item will usually be the date the complaint was filed.  The next items are about the banks efforts to get all the defendants served.  If the bank has trouble getting everyone served in 60 days from the time they file the complaint (they only get 60 days) then they will file a motion for continuance for 60 or 90 days to continue trying to get everyone served.  The court routinely grants these motions.  If they can not get the defendants personally served or serve a member of the household the bank will have to file another motion.  This time it is a motion asking the court to allow them to "serve by alternative means".  They file an affidavit (i.e. explanation) of why they can't get you personally served.  For instance maybe you have a locking gate and you appear to be home but you do not come out and take the papers from the process server.  Or maybe you have moved and have no forwarding address.  Depending on the circumstances the court will routinely grant the motion for alternative means of service and now the bank is free to serve you by another means.  This is usually by posting the notice on the property (e.g. on your gate or on your door) or by publishing the notice in the paper for 4 weeks, or even by certified mail.  It just depends on what the judge believes will adequately give you notice.  Of course all this extra motion filing and continuances means the homeowner is in the home for longer.  Once the default judgment is obtained the bank moves on two step two.  Executing on the judgment.   Judicial Foreclosure: Executing on the Judgment (i.e. Selling the House) Below the order for a default judgment on the case register there may be a notation about a "writ of execution" and maybe "instructions to the Sheriff" if the process has gotten that far.  The writ of execution and instructions to the Sheriff instructs the Sheriff to sell the house.  There may also be a notation for an "Order of Levy".  Once the Sheriff's office has these they still must publish the sale date for 4 consecutive weeks either in the paper or on the Oregon State Sheriff's Association Website.  The law requires the Sheriff's office to send notices of the sale to the homeowner as well so it will not be a surprise where the Sheriff just shows up at the door one day.  As I said this is just a basic outline to give you an idea how to interpret what you see on a Judicial foreclosure case register and to understand how some of the notices you recieve fit into the overall process.  As mentioned we are happy to provide anyone with a copy of their Case Register for free if they give us a call or provide copies to real estate professionals who would like to know where a client or potential client is in the foreclosure process.  

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