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THE SOUTH CAROLINA AND NORTH CAROLINA
FORECLOSURES
Many people have the wrong impression about how foreclosure works. Some home owners are convinced that foreclosure occurs when they miss one mortgage payment, and then without warning a sheriff or officer of the law appears at their door and removes them from the property. Well this is definitely not the case. The truth of the matter is that each state has its own set of foreclosure rules and how a foreclosure is handled. Under the law, you have a right to remain in your home for a certain period of time. That time frame varies depending on which method of foreclosure is used. That is why you must not dilly dally around and forget that time is of the essence. Contact us today!
(888-424-0877)
In South Carolina, a foreclosure goes through a judicial procedure. In this case it is filed with the court and involves a hearing by a judge. The foreclosure is initially filed with the Court of Common Pleas and then referred to the Master of Equity (The judge who then acts as both judge and jury) with any appeal directly with the South Carolina Supreme Court.
Here we will discuss the mortgage foreclosure. When a borrower (also called the mortgagor or in some cases the debtor) does not repay a loan for which real estate has been pledged as collateral (for example: Mortgage Loan), a foreclosure is the legal (judicial court) process by which the lender (also called the mortgagee or lien holder) can acquire title. This gives the mortgagee possession to the property. Now that the mortgagee has possession of the property they can liquidate it to recover the debt owed.
Typically, an individual borrows money to purchase a home and executes a mortgage note, which gives the lender a first priority lien (known as a mortgage) against the home and real property the home is built on. In the event that the borrower fails to make the payments to the lender, the lender can file a foreclosure action in the Circuit Court also called the Court of Common Pleas. Filling a Lis Pendens, a Summons and Complaint begins the action or lawsuit. The party initializing the action (in this example the lender-also called the mortgagee) is called the plaintiff and the party or parties against whom the action has been brought are the Defendants (in this example the-borrower-also called the mortgagor).
The term foreclosure indicates the nature of the complaint. The lender in this example wants to obtain a clear and marketable title to the property and to “foreclose” or bar any other claims or interest in the property. In order to clear the property of all liens or encumbrances, the Plaintiff will name any other known claimants who have liens against the property of record -usually this is a second mortgage holder or a judgment lien holder, a homeowner’s association and/or tax liens.
Once all Defendants have been served, and time for filing answers has expired, the Plaintiff will file a Motion to Refer. Although a jury trial in a foreclosure matter is possible under rare circumstances, in South Carolina, foreclosures are considered non-jury matters and are typically referred and handled by the Master-In-Equity (judge and Jury) for disposition. Once the Circuit Judge and the reference fees paid have signed the Order of Reference, the case is placed on the non-jury roster and scheduled for a hearing. All defendants must be sent a notice of the hearing. During the hearing the Master of Equity hears oral testimony and reviews any and all documentation as to the existence of the debt (original true certified copies of the note, mortgage, etc.), and amount due. In the event that the debt is not contested and it rarely ever is the Master of Equity will sign and issue an Order of Judgment of Foreclosure Sale.
In North Carolina foreclosures are handled through a trustee and are not required to go through the judicial system. This greatly reduces the time frame a borrower has to act. In North Carolina once a borrower fails to cure the default within the 30 days after the notice was received, the lender forwards instructions to their Trustee (attorney) to begin the foreclosure proceedings. These proceedings take approximately about 120 days from start to finish. A Notice of Hearing prior to the foreclosure of the deed of trust is filed with the Clerk of Court. At this filing a hearing date and sale date are established. The hearing afford the borrower(s) the opportunity to show cause to the courts as to why the foreclosure should not be held. After the hearing date, the Trustee will publish the foreclosure date in the local newspaper. The actual foreclosure sale falls within 21 to 22 days after the hearing date. In the event that the foreclosure sale occurs, the property is bid on at the county court house steps. The highest bidder will prevail unless an upset bid is made within the upset bid period. This upset bid period is normally 10 days of the sale date. In the event an upset occurs then the process will begin again as far as setting a new sale date. Homeowner Assistance Services is standing by to help you. Get in touch with us so we can put the power of our knowledge and expertise to work for you today.
Defend your rights……
Keep your home…….
Contact us today........
(888-424-0877)
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