Last year she spoke to B of A and they modified her loan after she was divorced. Without the two incomes she could not make the payment on her own. She has been making the payments and B of A has been cashing the checks for the last year. Yesterday her payment check was returned and the foreclosure notice was taped toi the door. She lives in Clark Countyt, NV
What can she do now? How does she stop the sale of her house on August 2? Is there anything else we can do.
Thanks in advance,
PS You guys are great! Really helped me a few years ago when my brother died.
Here are some Quick Facts about foreclosure in Nevada
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Typically 120 days
- Right of Redemption: Yes
- Deficiency Judgments Allowed: Yes
In Nevada, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process.
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, your home will be auctioned off to the highest bidder.
The borrower has one year (12 months) after the foreclosure sale to redeem the property if the judicial foreclosure process is used.
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:
A copy of the notice of default and election to sell must be mailed certified, return receipt requested, to the borrower, at their last known address, on the date the notice is recorded in the county where the property is located. Any additional postings and advertisements must be done in the same manner as for an execution sale in Nevada.
Beginning on the day after the notice of default and election was recorded with the county and mailed to the borrower, the borrower has anywhere from fifteen (15) to thirty five (35) days to cure the default by paying the delinquent amount on the loan. The actual amount of time given is dependent on the date of the original deed of trust.
The owner of the property may stop the foreclosure proceedings by filing an "Intent to Cure" with the Public Trustee's office at least fifteen (15) days prior to the foreclosure sale and then paying the necessary amount to bring the loan current by noon the day before the foreclosure sale is scheduled.
The foreclosure sale itself will be held at the place, the time and on the date stated in the notice of default and election and must be conducted in the same manner as for an execution sale of real property.
Lenders have three (3) months after the sale to try and obtain a deficiency judgment. Borrowers have no rights of redemption.
Having said all this the only way she can stop the foreclosure short of bringing the property current is to file a chapter 13 bankruptcy and pay the arrears off through the bankruptcy.
Estate Planning Attorney
There are several points of clarification on the first response. One, the lender has six (6) months to pursue a deficiency judgment following a foreclosure sale in the state of Nevada. Two, the foreclosure timeline of "typically 120 days" is the statutory period but in reality the lenders/servicers are taking much longer to effectuate foreclosures. This is largely irrelevant now that the foreclosure sale is already set.
As to what your daughter can do now, there is practically very little to stave off the foreclosure sale - file bankruptcy, pay the amounts due and owing, or file a lawsuit against the lender. I realize none of these seem like great options. Being that the foreclosure sale is so close, she does not have to evacuate the property on that date. She should prepare to move out but until the bank notifies her that she must leave she can remain in the home. The most extreme case I've seen was a family that stayed in their home for 25 months following the foreclosure sale. I would not expect the same thing to occur with your daughter but she should be able to stay in the property for some time after August 2.
This communication is NOT intended as legal advice and is given for informational purposes only.