Judicial Foreclosure

How it works

• The foreclosing party files a complaint in the state trial court and serves the borrower and other parties with an interest in the property.
• The borrower may file an answer and raise defenses, and the case follows the state’s rules of civil procedure — including discovery and motions such as summary judgment.
• If the court rules for the foreclosing party, it enters a judgment of foreclosure and orders a sale, usually conducted by a sheriff or court-appointed officer.
• Many states require court confirmation of the sale, and some allow redemption for a period afterward.

What the foreclosing party generally must show

Requirements come from state law, but courts commonly look at whether there is a valid debt and security instrument, a default, compliance with notice and other preconditions, and the foreclosing party’s right to enforce the note — often called standing.

Responding to a judicial foreclosure

Because it is a lawsuit, the deadlines in the summons apply. Missing the deadline to respond can lead to a default judgment. Read your state’s rules of civil procedure and talk to a licensed attorney promptly.

State law controls

Foreclosure is governed mainly by state law, and procedures, notice periods and redemption rights differ from state to state. See foreclosure by state for each state’s process and governing statute.

Researching judicial foreclosure in your state

First, find the statute or rule that governs judicial foreclosure where you live. State law controls most of these questions, so the answer can change from one state to the next. Next, read recent decisions from the appellate courts in your state. They show how judges apply the law today. Also, check the local rules of the court that would hear your case. Our state procedures guide links to each state’s official rules. In addition, the Research Center explains how to confirm a source is still good law.

Sources and further reading

Official sources used on this page:

• Current federal rules of practice and procedure (uscourts.gov)

Related reading on Lawtopolis:

• Foreclosure: How It Works
• Nonjudicial Foreclosure (Power of Sale)
• Answer
• Motion for Summary Judgment