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Foreclosure Laws in South Carolina (SC)

Topic: Foreclosure

South Carolina allows for both judicial or in court and non-judicial or out of court foreclosure processes to take place in its jurisdiction. As with all states that allow both kinds of foreclosure, the vast majority of cases are pursued through out of court processes, because it save the bank both time and money. The determining factors as to which foreclosure processes will be employed is whether or not a power of sale clause is included in the language of the mortgage or deed of trust. Most such documents include a power of sale clause these days. That allows out of court foreclosure to be followed. In the few cases where a power of sale clause does not appear in the mortgage or deed of trust, in court foreclosure must be followed.

In court foreclosure begins by the bank filing a legal complaint against the home owner. This is an attempt to obtain a decree of sale from the judge. It is of course almost invariably granted. When the court finds the homeowner in default, it sets up a time frame in which the home owner is allowed to come up with the payments that have been missed, plus any additional costs such as attorney's fees, which the bank has incurred as a result of the process. If the home owner can pay that amount of money in the time allotted to do so, the sale of the property will be stopped. Further, they will have kept a foreclosure off their credit history. And, of course they will need to resume a current standing with the agreed upon payment schedule. The sale of the property will proceed the same way whether it is by judicial or non-judicial process. Three weeks before the scheduled sale date, a public notice announcing the sale must be posted on the courthouse door of the county where the property is located. Also, during this time this same notice must be posted in two additional public places. Also, an advertisement containing the same information as the public notice of sale must be run in a local newspaper which has circulation in the county where the property is located. The judge can specify otherwise, but in almost all cases the sale of the home will be held at the court house of the county where the property is located.

The sale will be conducted by that county's sheriff as well. South Carolina is one of the few super sale day states. All foreclosure sales in the state are held on the first Monday of the month unless that Monday is a holiday. In such a likelihood, the sale will be held the next day which is the first Tuesday of the month. All the sales will be run through from the hours of 11:00 am and 5:00pm the sheriff may close the process down earlier than 5:00 pm, if it is necessary. Even if you are the highest bidder at the sale of the property, you must wait thirty days longer to be awarded the home. During this thirty day period, following the conclusion of the sale, anyone may turn in a higher bid. At the end of this thirty day time frame, the person or entity who have placed the highest bid, will be the one to get the property. If you were the winning bidder at the public sale, but you were not the highest bid at the end of the next thirty days, the money you paid the sheriff will be returned and you will not get the home.

Even when you have been awarded the house at the end of the thirytday waiting period, you must still wait another three months until the sheriff will make the final deed endorsements. During this final 90 day waiting period, an objection to the winning bid can be raised which would derail the winning bidders claim on the home. The only entity that would raise such an objection on the sale price would be the bank. This seems like a real headache for the investor, who wants to get the home at the sale. On the other hand, I presume that during all this additional four months of time following the public sale, the former home owner could remain in the home. I presume this, because, legally, no new clear title to the property has been established until after this time.

In South Carolina, banks are allowed to file for a deficiency judgment. This means that is the bank feels it can get more money from the former homeowner, to make up for the loss it took between what is owed and the proceeds it received from the sale, then it is allowed to attempt to sue the home owner for those funds.

05/02/2008
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