Foreclosure Process in Nevada (NV)Topic: Foreclosure
Nevada allows both judicial in court or non judicial out of court foreclosures. As with all states in which both methods may be followed, the determining factor as to which method will be used is the existence of power of sale. If the deed of trust or mortgage contains a power of sale clause, this allows the bank to pursue foreclosure without petitioning the court to do so. Most deeds of trust or mortgages do contain a power of sale clause. This benefits the bank.
This also means that most foreclosures are done non judicially or out of court. This is because it saves the bank both time and money to proceed this way. If a power of sale clause is not written into the deed of trust or the mortgage of the home in question, then judicial or in court foreclosure must be followed. This process begins with the bank filing a lawsuit against the home owner who is having difficulty paying his mortgage. The bank does this to obtain a court order to foreclose. Once this court order to foreclose is obtained, the process of moving toward the sale of the home is the same as in non judicial foreclosure. The homeowner does receive a twelve month right of redemption when the judicial method of foreclosure is used. In this type of foreclosure, for the twelve months following the sale of the home at auction the person that lost their home at the sale can regain ownership of the house. When a power of sale clause contains specific instructions as to when, where, and how the sale of the home is to take place, then those specifications must be followed. Most of the time, power of sale clauses are not so detailed, and the usual method of moving toward the sale date is followed.
The first step of that process is that a copy of the notice of default and election to sell the property is sent to the homeowner. This letter must be sent by certified return requested mail, to the last known address of the homeowner. This letter is to be mailed the same day it is recorded with the county in which the property is located. The time line from the notice of sale to the actual auction of the house is usually one hundred and twenty days in Nevada. The scheduled sale date cannot be sooner than three months after the date the notice of default and election to sell is recorded with the county and mailed to the homeowner. The notice of default itself, specifies the time, date, and place the sale is to be held. The process of curing the default, should the homeowner desire to do so, must be taken care of during the first thirty five days following the issuance of the notice of default and election to sell. If the homeowner wants to do this, they must file a notice of intent to cure, not late than fifteen days prior to the scheduled sale date. The money required to cure the fault and stop the foreclosure sale will be the amount needed to bring the loan current. This dollar amount must be paid before noon the day before the scheduled auction of the home. If the homeowner does not come up with that money by that time, the sale will proceed as scheduled.
The notice of default and election to sell will contain all the information about the sale; where and when it will occur. Most often, the beginning bid or the amount required to participate as a bidder on the home will be the amount of the first mortgage plus the fees and costs and interest the bank has incurred. Being that most homes going to auction these days have very little if any equity in them, this opening virtually always too high for investors to take any interest in the home. This means that at most sales the property is taken back by the bank. This causes a lot of problems for the lender.
If the home is sold at auction for less than is owed on the loan, the bank has the right to seek the difference between what the sale generated and what they were owed from the former home owner. The bank can exercise this option for three months following the sale. After this amount of time, they can no longer seek that money. This is called a deficiency judgment. Most people who lose their home to a foreclosure sale do not have any other assets worth pursuing by the bank. The banks realize that it is a waste of time to try and get blood from a stone in these cases. So, unless the bank has reason to believe that the former homeowner has other properties worth equity or other assets they could take they will most likely not seek a deficiency judgment. To do so would just be flushing money and time down the drain.
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Hi,I am new here and have spent the past two days reading it's a great reorcsue to have found this site and to have read your stories, to see that I am not the only person who is going through this nightmare.I apologize for the length of this, but wanted to tell my story and see if anyone has been here and knows what I can do.I have been trying to get a loan modification with Bank of America since July, 2009 . This is the status of my case right now:1. It took until October for them to have received my information, as the first two people I spoke to listed different criteria and the second gave me the wrong fax number to sent it all to I only found this out when I had called after about a month (after second submission of documents) to see what the status was, if I needed to do anything. They then gave me another list of documents and the correct fax #.2. Received letter in October that they received my information and would inform me within 60 days of any information.3. Called about a week ago, the woman on the phone told me that there was no information. As I am pretty desperate at this point since my home has been in foreclosure for months as BAC told me NOT to make any payments, and she told me that if I sent any payments, they would return it, as my home is in foreclosure status, and that I just need to wait. Also told me that a negotiator was assigned at the end of December.4. Called again today, as I received a notice in the mail (and also saw it posted online for anyone to see) notifying me that I have until 2/22/2010 to notify the court (myself or via attorney) with an appearance if I am entitled to the Servicemember Civil Relief Act (which I am not) and think I have a right to object to the foreclosure.5. Called BAC again, and the woman I spoke to today told me that I am IN A TRIAL PERIOD that started January 1, 2010 that was when my first trial payment was due! It is for 3 months so I paid the amount that was due the first, and scheduled payments for 2/1 and 3/1.6. I asked why I wasn't notified, and was concerned that I didn't get this information she told me the documents will come within 45 days of January 1st to notify me of the trial period. What I am confused about is why at that point two of my trial payments would have been outstanding. Since I was not notified, they accepted my first payment late as on time (she said).7. I told them about the notice I received, and she said that the foreclosure date was pushed out to 3/10 which is after my 3-month trial period ends . And supposedly a decision will be made. If this is true, why was this document delivered to me YESTERDAY telling me that I have until 2/22/2010 before I lose my home, especially if my TRIAL period started January 1?? This court decision was just delivered.The problem is that I have no documents to back this up. I can't confirm besides the word of the phone rep of the day that my foreclosure date was postponed. Do I call a lawyer? Do I call the lawyer of the plaintiff (which is listed as BAC) to notify them that it was postponed? I don't understand the trial period if they are giving me a trial period, and I make the payments on time, I am still going crazy at the possibility that they may reject the modification. If you succeed in making your payments during the trial period, how can they still deny you, and if so what was the point?If they deny the loan modification, will they demand the full amount owed since you stopped making payments (at their advice), or will they just go back to the previous monthly payment amount, and roll the rest of it on top? I owe $16,000 since I stopped paying at this point if I am not approved I will be out on the street. I have lived in my home 3 years, am 30 years old and alone, and am a first-time home owner. This really is my worst nightmare.Given the court notice, and the trial period information that I only stumbled onto by accident because I called them twice this month hoping for some information, what should I do now? How can I be sure that the postponement of my foreclosure is for real? From this notice, it does not look like the city knows about it. How do I respond to this court notice what should I do?I appreciate you reading this, and from someone who has not been able to sleep in months and is pretty much stressed out to the max now 24/7, I hope that you all have the best of luck with this horrible nightmare and that we are all able to stay in our homes.Thanks,Jax.
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