Oppenheim Law

Divided States of America: Judicial vs. Non-Judicial Foreclosure - Yahoo! Homes

News   •   Jul 16, 2012 09:34 EDT

Roy Oppenheim’s commentary was originally published on Yahoo! Homes and is being redistributed on South Florida Law Blog with their permission.

According to some analysts, whether or not your state is on its way to a housing recovery depends on whether you live in a state that requires judicial foreclosure or one that does not.

What is the difference? In states that require judicial foreclosure, a lender must go through the court system in order to foreclose on a home. A judge must issue a legal judgment against a homeowner in order for that person to be forced out of their home.

That is how it is in Florida, where I practice law, along with 20 other states. But in the rest of the country, in states like California or Georgia, courts are not required to intervene.

With non-judicial foreclosures, banks hold all the cards. If you are deemed by your lender to be in default, the banks can play the role of judge, jury, and executioner.

Your home can be put up for auction, and the court has no or little say in the matter.

It’s like what happens when your car is repossessed by the repo man.

This is why I like to call our country the Divided States of America. There are some states where the rule of law still matters, but there are many that have allowed banks to essentially make up the rules as they go along.

As a lawyer and someone whose job it is to help uphold the law, I think you can guess which side I am on.

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