When foreclosing a deed of trust, all sums owing and secured by the deed of trust are accelerated and immediately become due regardless of the maturity date identified in the promissory note, provided that an acceleration clause is included in the promissory note and/or deed of trust. Two methods are used to foreclose deeds of trust: judicial foreclosure and non-judicial foreclosure.
In certain instances it may be desirable to file a lawsuit in a local superior court to foreclose on the Property (judicial foreclosure). When the beneficiary files a lawsuit against the trustor in a local superior court to judicially foreclose, the Property, unless the default is remedied (cured), will be ordered sold at a publicly held sale supervised by the court. The judicial action to foreclose is often more costly and will typically take more time to complete than the second method, which is a privately held public sale (non-judicial foreclosure).
In a non-judicial foreclosure, the trustee (under the power of sale clause contained in the deed of trust) may proceed with the foreclosure at your request and, unless the default is cured, sell the Property without court supervision. This privately held public sale procedure will usually take at least four months to complete. If the deed of trust does not contain a power of sale clause, your only option is to foreclose judicially. Most deeds of trust do include a power of sale clause.
NOTE: You should review the promissory note and deed of trust to ensure that, among other provisions, both acceleration and power of sale clauses are included.
One of the major differences between the two foreclosure methods is your right to obtain a deficiency judgment, which is available when the loan is a “non-purchase money” mortgage or deed of trust. If the Property is other than one to four residential units, or if it is one to four residential units and the borrower did not intend to occupy, your loan (as distinct from a seller “carry-back”) would be “non-purchase money.” When your loan is used to finance or refinance the equity of the Property (no sale transaction is involved), the loan is also “non-purchase money.”
If your loan is “non-purchase money” and you determine the protective equity is insufficient to repay the entire amount owed by the borrower, including all of the fees, costs, and expenses of the foreclosure, you may want to consider a judicial foreclosure. Deficiency judgments are not available when the non-judicial foreclosure method is utilized. However, collateral actions (a separate judicial action) for fraud, waste, or malicious destruction of the Property may still be possible.
If the Property is foreclosed by a senior lien holder, thus extinguishing your “non-purchase money” junior lien, you still may collect as a “sold-out” junior lien holder. You may seek to collect as a sold-out junior lien holder when either there is no overage or an inadequate overage is received (insufficient money received from the foreclosure sale over and above that which is owed to the foreclosing senior lender to pay all or any part of the money owed to you). To enforce collection as a sold-out junior lien holder, a judicial action for money damages must be brought pursuant to the terms of the promissory note.