Judicial vs. Non-Judicial Foreclosure: What’s the Difference? | Long Island Landlord Tenant Lawyer

Foreclosure

Foreclosure (Photo credit: zane.hollingsworth)

According to New York state law, Nassau County foreclosures can be either judicial or non-judicial. These terms are unfamiliar to many, and often homeowners are unaware that their house may be eligible for a non-judicial foreclosure.

Judicial Foreclosures 

A judicial foreclosure is the more common type of foreclosure proceeding in the state of New York. In this process, the lender files suit against the borrower for nonpayment. There is typically a lengthy court proceeding to determine if the lender has the rights to the property and if the borrower is truly in default on the loan. During this time, the borrower can offer a defense and may be able to negotiate a settlement with the lender. If the court decides in favor of the lender, the borrower typically has a period of time in which to pay the amount owed. If payment is not made, then the court will authorize the sale of the house, often by public auction.  Most Nassau County foreclosures are of this type.

Non-Judicial Foreclosure

A non-judicial foreclosure is a much faster process than a judicial one. As is evident from the name, this type of foreclosure does not involve the court system. In a state that permits non-judicial foreclosures, buyers sign an additional piece of paperwork when they receive their mortgage. This paper contains some special wording known as a power of sale clause. This clause gives the lender the authority to sell the property if the buyer defaults on their mortgage payments. Since the legal authority has already been granted, this process can occur very quickly. The only warning that an individual may receive of an impending foreclosure is the notice that the house is up for sale. At this point, the borrower has very little time to produce a payment or mount any sort of defense. In fact, since the court system is not involved, the borrower must be the one to file a case to obtain a temporary injunction to prevent the sale. This process can be very fast and scary for an unprepared homeowner.

This sort of legal situation is a perfect example of one of the reasons homeowners should seek legal counsel to protect themselves against Nassau County foreclosures. Potential homeowners may sign paperwork permitting non-judicial foreclosures without even being aware of its inclusion. Those who receive a notice that their home is being sold are nearly completely defenseless without legal guidance. Don’t wait for this kind of scenario to happen to you. Contact Witkon Law today for a free consultation on your potential property purchase and ensure that your home is protected from such summary action.

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