Power of Sale is a clause commonly inserted in a mortgage and deed of trust that grants the creditor or trustee the right and authority, upon default in the payment of the debt, to advertise and sell the property at public auction, without resorting to a court for authorization to do so.
Once the creditor is paid out of the net proceeds, the property is transferred by deed to the purchaser, and the surplus, if any, is returned to the debtor. The debtor is thereby completely divested of any interest in the property and has no subsequent right of redemption-recovery of property by paying the mortgage debt in full.
A distress sale is when a person is forced to sell their real estate or face losing it to foreclosure or power of sale. When people are forced to sell their properties in a limited time frame their typically never get a favorable price.
Because of falling home prices, borrowers who always paid their mortgage but who have run into unforeseen circumstances -- like unemployment or a job transfer -- can no longer sell their homes for what they owe. As a result, they are being forced to short sell or foreclose and are getting caught up in deficiency judgments. "After the banks foreclose, it's very common now to have large deficiencies with houses not worth the balances owed.
While this equitable right exists, it is a cloud on title and the lender cannot be sure that they can successfully repossess the property. Therefore, through the process of foreclosure, the lender seeks to foreclose the equitable right of redemption and take both legal and equitable title to the property in fee simple. Other lien holders can also foreclose the owner's right of redemption for other debts, such as for overdue taxes, unpaid contractors' bills or overdue homeowners' association dues or assessments.
Laws regarding mortgage default and foreclosure differ from state to state and mortgage lenders and servicing companies vary in the way they approach delinquent borrowers. The big mortgage gatekeepers such as Freddie Mac, FHA and the VA have changed their approach to managing delinquencies in the last ten years, having finally realized that it is more cost effective to help a borrower to stay in his home than to pursue foreclosure and then confront the need to deal with owning, managing, and selling the resulting real estate. Consequently, there are probably a hundred different scenarios that can play out as a mortgage delinquency progresses and at least that many ways a borrower can deal with his default problems. All we can do is talk about some of the possibilities and some of the options.
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