Real Estate Law
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Thanks for your question and good evening.Let me verify that the house is located in Arizona.Do you know if there is a deed of trust or does the mortgage have power of sale in it?
If there is a power of sale or deed of trust this is done by a non judicial sale by the trustee.
Here is the process for Arizona for such a sale.
You are going to need an Arizona lawyer to substitute as trustee and then proceed to give notice and proceed to foreclosure sale.Once the sale has been completed he prepares a trustee deed from the trustee to you to deed the property back.
You can also pursue deficiency judgment if you choose.The lawyer can do that too here.
33-814. Action to recover balance after sale or foreclosure on property under trust deed
A. Except as provided in subsections F and G of this section, within ninety days after the date of sale of trust property under a trust deed pursuant to section 33-807, an action may be maintained to recover a deficiency judgment against any person directly, indirectly or contingently liable on the contract for which the trust deed was given as security including any guarantor of or surety for the contract and any partner of a trustor or other obligor which is a partnership. In any such action against such a person, the deficiency judgment shall be for an amount equal to the sum of the total amount owed the beneficiary as of the date of the sale, as determined by the court less the fair market value of the trust property on the date of the sale as determined by the court or the sale price at the trustee’s sale, whichever is higher. A written application for determination of the fair market value of the real property may be filed by a judgment debtor with the court in the action for a deficiency judgment or in any other action on the contract which has been maintained. Notice of the filing of an application and the hearing shall be given to all parties to the action. The fair market value shall be determined by the court at a priority hearing upon such evidence as the court may allow. The court shall issue an order crediting the amount due on the judgment with the greater of the sales price or the fair market value of the real property. “Fair market value” shall mean the most probable price, as of the date of the execution sale, in cash, or in terms equivalent to cash, or in other precisely revealed terms, after deduction of prior liens and encumbrances with interest to the date of sale, for which the real property or interest therein would sell after reasonable exposure in the market under conditions requisite to fair sale, with the buyer and seller each acting prudently, knowledgeably and for self-interest, and assuming that neither is under duress. Any deficiency judgment recovered shall include interest on the amount of the deficiency from the date of the sale at the rate provided in the deed of trust or in any of the contracts evidencing the debt, together with any costs and disbursements of the action.
B. If a trustee’s sale is a sale of less than all of the trust property or is a sale pursuant to one of two or more trust deeds securing the same obligation, the ninety day time limitations of subsection A of this section shall begin on either the date of the trustee’s sale of the last of the trust property to be sold or the date of sale under the last trust deed securing the obligation, whichever occurs last.
C. The obligation of a person who is not a trustor to pay, satisfy or purchase all or a part of the balance due on a contract secured by a trust deed may be enforced, if the person has so agreed, in an action regardless of whether a trustee’s sale is held. If, however, a trustee’s sale is held, the liability of a person who is not a trustor for the deficiency is determined pursuant to subsection A of this section and any judgment for the deficiency against the person shall be reduced in accordance with subsection A of this section. If any such action is commenced after a trustee’s sale has been held, it is subject, in addition, to the ninety day time limitations of subsections A and B of this section.
D. If no action is maintained for a deficiency judgment within the time period prescribed in subsections A and B of this section, the proceeds of the sale, regardless of amount, shall be deemed to be in full satisfaction of the obligation and no right to recover a deficiency in any action shall exist.
E. Except as provided in subsection F of this section, the provisions of this chapter do not preclude a beneficiary from foreclosing a deed of trust in the same manner as a real property mortgage. In an action for the foreclosure of a deed of trust as a real property mortgage the provisions of chapter 6, article 2 of this title are applicable.
F. A deed of trust may, by express language, validly prohibit the recovery of any balance due after trust property is sold pursuant to the trustee’s power of sale, or the trust deed is foreclosed in the manner provided by law for the foreclosure of mortgages on real property.
G. If trust property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling is sold pursuant to the trustee’s power of sale, no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.
You have to do this quickly as you can see after the foreclosure if you want a deficiency judgment, house doesn't sell for what is owed.
am I the trustee payments are made to an escrow service so I don't understand your question
There would be a trustee in the deed of trust.It is a document recorded in the deed records as part of the closing.That is the normal process here in Arizona.
The second type of foreclosure which is less common, means of a lender forcing the sale of a home is through a Judicial Foreclosure. The Judicial Foreclosure process is expressly governed by statute. See Arizona Revised Statute (A.R.S.) § 33-721. As part of the Judicial Foreclosure process, the mortgage holder will file a civil lawsuit against the borrower. That lawsuit is governed by the Arizona Rules of Civil Procedure and the lender must obtain a Foreclosure Judgment from a Court of competent jurisdiction to actually enforce the Foreclosure. In other words, the lender must go before a judge, present its case and be awarded a judgment. As a practical matter, assuming the borrower is in default, the lender will be successful in this regard and will obtain the judgment. Once the lender obtains the judgment, the Court will direct the mortgaged property to be sold to satisfy the judgment. See A.R.S. § 33-752(A) What is the sale process after the lender obtains a Judgment? Upon receiving the Foreclosure Judgment, the lender will obtain a Special Writ of Execution, which is an order authorizing the County Sheriff to sell the property. The Sheriff, in turn, will post a notice of the sale, in at least three public places, including near the County Courthouse. The sale must be noticed not less than 15 days before the sale date. At the time of the sale, the Sheriff will receive bids on the Property through an auction. The highest bidder will “win” the auction and be required to pay the bid price within 5 days of the auction. To be valid, the sale must conform to the fair market value for the property. See A.R.S. 33-725.
You first step here is locate a real estate lawyer in the town where property is located and he can tell you whether a non judicial sale is possible.It is much faster and less expensive.
If a lawyer or title company did the closing such a non judicial sale is likely included here in the closing papers.
Here is lawyer referral for Arizona here to get it started..
Maricopa County Lawyer Referral Service Phoenix, AZ Phone:(NNN) NNN-NNNN Toll free:(NNN) NNN-NNNNCounties Served: Maricopa
Pima County Bar Association LRS Tucson, AZ Phone:(NNN) NNN-NNNNCounties Served: Pima
I appreciate the chance here to assist and chat with you .Please let me know if you have more.Thanks again
You can see a deed of trust sample here--click on free preview.
It would be rare for a property not to have a deed of trust or power of sale here in Arizona.
It is very likely the lawyer can give the referred notice above and proceed to sale.
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More reference to the process.
Thanks again for letting me help you.
Here is the law concerning a deed of trust sale in Arizona.
Here is a great video that covers foreclosure..
I appreciate the chance to chat with you.Good luck with the foreclosure sale.
If you can leave a positive rating it is much appreciated .
You are also allowed to seek legal fees and costs of sale and obtain a deficiency judgment against the debtor as part of the process/
Again thanks for letting me provide you the information that you needed here.
I don't understand your answer l get my payments from CANYON STATE SERVICING,CO,LLC in PHOENIX I think its a title insurance company and can I repossess it from Arkansas and could I resell it myself they are 7 monthes behind
You will need a lawyer in Arizona here to file as substitute trustee and then post notices for sale.This is not something you can do from out of state.The lawyer as trustee would personally conduct the sale on the court house steps.The lawyer would then prepare a deed from him the trustee to you returning title to you.You would then be able to sell it again if you choose.The lawyer can also sue for deficiency if more is owed including lawyer fees and costs than the house sells for.Here either you buy it back or another third party can bid and buy it.
There is no way around a Arizona lawyer where the property is located to send notice, conduct the sale, and then prepare the trustees deed.
I gave you lawyer referral so you could locate one to do this.It is likely that Canyon State is the current trustee and they too can perform this service for you..Their lawyer would do the legal work referenced above.
I am sorry but this is not something you can do yourself from out of state.The law does not allow for that.
The lawyer can seek to recover lawyer fees and costs here as part of the process and get a deficiency judgment against the debtor.You may then proceed to collect the deficiency here.
Thanks for the follow up and letting me clarify this.
im on disability inome do u have any idea how much that lawyer will cost
The lawyer should make you a fee quote here through lawyer referral.They might be agreeable to work contingent fee with you not having to pay until the house is resold.I would estimate from $500 to $1k.Certainly you can see if they will do contingent type fee since you have limited income.
Thanks again and I wish you the best..
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