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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 36609
Experience:  16 years real estate, Realtor. Landlord 26 years
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I hold the mortgage on a residential property in

Customer Question

I hold the mortgage on a residential property in Spartanburg, SC, that the buyer is now a month behind. When can I file foreclosure? The contract says when he defaults.
JA: Since laws vary from place to place, what state is this in? And has any paperwork been filed?
Customer: In South Carolina. No paperwork has been filed yet.
JA: Has any paperwork been filed?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 8 months ago.
Category: Real Estate Law
Expert:  Barrister replied 8 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney whowill try my very best to help with your situation or get you to someone who can. There may be a slight delay in myresponses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

Expert:  Barrister replied 8 months ago.

Was the property transferred into the buyer's name and you are acting as the bank in holding the mortgage and Note and accepting payments?

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Have you sent the buyer any written notice of default and demand for payment?

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thanks

Barrister

Customer: replied 8 months ago.
it is in his name. No I have not sent a notice yet. Is that what I should do?
Expert:  Barrister replied 8 months ago.

It is customary to send out a notice of default and a demand for payment, but it isn't mandatory. In South Carolina, you as the lender would go to Circuit court in what is known as a judicial foreclosure proceeding where the court must issue a final judgment of foreclosure. You actually have to file a lawsuit against the borrower and have a judge rule in your favor that they are in default and then order a sale. The property is then sold as part of a publicly noticed sale.

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A complaint is filed in court along with what is known a "lis pendens" which is a recorded document that provides public notice that the property is being foreclosed upon.

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But this is fairly complicated from a legal perspective and unless you are familiar with filing your own lawsuits and briefs and admitting evidence to the formal record, then you will need to get a local real estate attorney to assist so that no errors are made that could get the case kicked out of the system with you having to start over..

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thanks

Barrister

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