Notice of Default

notice of default

What is a Notice of Default?

A Notice of Default marks the beginning of the home foreclosure process. If you have received a Notice of Default, it means that your mortgage lender has decided to foreclose on your home and sell your property at a public auction. A Notice of Default, often referred to by lawyers and realtors as an “NOD,” is a legal document that your lender is required by law to send to you in order to conduct a foreclosure sale of your property. The document looks very similar in appearance to a deed to your house, in that the Notice of Default has a designated space at the top right where the county recorder will affix the recorder’s stamp, however the copy of the Notice of Default that is sent to you by your lender usually will not have the recorder’s stamp but will be empty in the space at the top right. Even though there is no recorder’s stamp at the top right of the Notice of Default sent to you, the Notice of Default is still fully valid and enforceable and sufficient to commence a foreclosure of your property.

How Long Do I Have Before My Property is Sold?

Once the foreclosure process is started by sending you a Notice of Default and recording it with the county recorder, a foreclosure can take place in as little as 110 days, which is just under four (4) months. This is because the Notice of Default must give you a period of 90 days in which you can bring your loan current and thereby stop the foreclosure proceedings. If you fail to bring your loan current within 90 days of the date of the Notice of Default, then your lender can record a Notice of Trustee Sale setting a foreclosure sale date in as little as 20 days. In practice, it is common for lenders to set the sale date that is one month, or 30 days, after the date of the Notice of Trustee Sale. Hence, although an auction sale of your home can be conducted in as little as 110 days (90 days + 20 days) it usually takes about 120 days (90 days + 30 days).

What Are My Options to Save My Home?

If you have received a Notice of Default and want to keep your home, you generally have two options for saving your property: (A) convince your mortgage lender to voluntarily stop the foreclosure process, either by paying the missed payments owing to your lender or obtaining a loan modification that brings your loan current; (B) filing a Chapter 13 bankruptcy and repaying your missed payments over a 3-5 year repayment plan in your Chapter 13 bankruptcy case. Among these two options, Chapter 13 bankruptcy is the only one that does not require your lender’s consent, meaning that your lender has no say in the matter. If you qualify for Chapter 13 relief, you can file and stop the Notice of Default and foreclosure proceedings.

Chapter 13 Bankruptcy to Save Your Property

To properly evaluate your option of filing a Chapter 13 Bankruptcy to save your home, you’ll need to talk to an experienced bankruptcy lawyer in order to make sure that you qualify for bankruptcy and that it is an advisable solution for accomplishing your goals. Bankruptcy is not right for everybody and not everyone qualifies to file for bankruptcy relief. There are very technical rules and requirements for qualification, including income requirements and debt limitations, among other things. The only way to know for sure if bankruptcy is an option that is available to you, and one of the options that you qualify for, is to consult with an experienced bankruptcy lawyer.

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