Foreclosure & Alternatives Law
Idaho homeowners facing foreclosure may feel as though there are no options available that will let them keep their home. Understanding the process can help, but so can speaking with an experienced attorney about your legal options.
Idaho has judicial foreclosure, but has non-judicial foreclosure is the most common. A non-judicial foreclosure means that a “Power of Sale” clause is in the deed of trust or the mortgage paperwork. This gives the lender the authority to sell the property if the borrower defaults on the loan.
The lender or the lender’s representative is usually called the trustee when there is a power of sale. The mortgage or the deed of trust may contain information about the sale, such as the terms of the sale, the time and the place. If this is included in the power of sale clause, it must be followed. If there are no specifications about the sale, then the foreclosure proceeds as a typical non-judicial foreclosure.
The notice of sale has to be recorded with the county clerk in the country where the property is located. The borrower must be notified of the filing of the notice of sale. Anyone who occupies the home must be notified of the pending sale at least 120 days ahead of time.
The notice of sale has to be published in the county’s newspapers for four consecutive weeks. There must be at least 30 days between the last time the notice of sale is published and the sale. The newspaper publications must include the street address of the property, the legal description, the name and telephone number of someone who can provide directions and information on the default.
As long as it is no longer than 30 days, the foreclosure auction can take place after the originally published and scheduled sale date. This can allow for the property owner to attempt to pay the loan or come to an agreement about a modification on the loan. An attorney for the lender may conduct the sale.
Interestingly, Idaho allows for borrowers with properties of more than 20 acres to have one year to bring the loan up to current. However, for properties that are not more than 20 acres, the borrower will have six months to redeem the property.
If the property sells at the foreclosure auction for less than what is owned on the loan, the borrower is responsible for the balance of the loan. However, the lender must file for a deficiency judgment within three months of the foreclosure sale. The maximum amount the lender can seek is the difference between the loan balance and the sale price.
Depending on each homeowner’s individual circumstances, there may be legal options available to either delay the foreclosure sale or stop the foreclosure all together. The advice of a legal professional can be very beneficial in detailing what options are available to you.