Pre-foreclosure glossary

Every term this site uses, defined. If a word appears in a table header or a record on this site and is not here, that is a bug — the glossary is meant to be complete, not representative. Definitions, not legal advice.

Pre-foreclosure

Pre-foreclosure is the stage of a foreclosure after the lender or association has started it, by filing a suit or recording a notice of default, and before any sale of the property has been set.

The owner still holds the title and can still sell, reinstate the loan, refinance, agree a short sale or hand the lender a deed in lieu. A foreclosure sale comes only at the end, and in a judicial state only after a final judgment.

See also: Lis pendens, Notice of action, Judicial foreclosure, Final judgment of foreclosure

Lis pendens

A lis pendens (Latin for "suit pending") is a notice, recorded in the county's official records, that a lawsuit affecting a property has been filed and is still open.

Anyone who buys or lends against the property afterwards takes it subject to the outcome of the suit. In Florida, section 48.23 of the statutes makes an action operate as a lis pendens only once a notice of lis pendens is recorded in the county where the property is. A lender records one with its foreclosure complaint, which is why a lis pendens is often the first public sign of a pre-foreclosure.

See also: Pre-foreclosure, Judicial foreclosure, Notice of action

Notice of action

A notice of action is the notice a court's clerk issues, and the plaintiff has published, to serve a defendant by publication when the defendant cannot be served in person.

Florida's chapter 49 sets out what it must say: the defendants, the nature of the action, the court and the property. In a Florida foreclosure it requires the defendant to serve written defenses within 30 days after its first publication. Every case on this site is built from notices like these.

See also: Constructive service, Response due, Unknown spouse, heirs and tenants

Constructive service

Constructive service is service of process by publication: a defendant who cannot be found or served in person is treated as served once the court's notice has been published as the law requires.

In Florida the plaintiff first files a sworn statement that a diligent search and inquiry has been made for the defendant (Fla. Stat. 49.041), then has the notice of action published. It is common in foreclosures, where an owner may have moved, died or left the state.

See also: Notice of action, Unknown spouse, heirs and tenants

Unknown spouse, heirs and tenants

"Unknown spouse", "unknown heirs" and "unknown tenants" are defendants a foreclosure names by description rather than by name, so that anyone with a claim to the property through the owner is bound by the judgment.

A suit against "the unknown spouses, heirs, devisees, grantees and creditors" of a named owner, deceased, means the owner has died: the property passes to heirs who may not want it or the debt on it. Records here flag those cases as a deceased owner.

See also: Deceased owner, Constructive service

Deceased owner

A deceased-owner case is a foreclosure whose suit names the heirs or the estate of an owner who has died, rather than a living owner.

Often the most motivated sellers on any list: the heirs inherit a house with a debt on it, may live elsewhere, and decide together, sometimes through a probate court. Approach with care.

See also: Unknown spouse, heirs and tenants, Pre-foreclosure

Plaintiff

The plaintiff in a foreclosure is the party suing to foreclose: a mortgage lender or the servicer acting for it, or a homeowners' or condominium association foreclosing its lien.

Records here show the plaintiff as the notice prints it, with the type of foreclosure: mortgage, HOA lien, condominium association lien or another lien.

See also: HOA and condo lien foreclosure, Judicial foreclosure

HOA and condo lien foreclosure

An HOA or condominium lien foreclosure is a suit by an owners' association to foreclose its lien for unpaid assessments, separate from any mortgage on the property.

The debt is often far smaller than a mortgage, so an owner can sometimes pay it off and end the suit. In Florida, against a first mortgage recorded earlier, a homeowners' association's lien counts only from when the association records its claim of lien (Fla. Stat. 720.3085).

See also: Plaintiff, Pre-foreclosure

Judicial foreclosure

A judicial foreclosure is one carried out through a lawsuit in court: the lender sues, the owner can defend, and the property can be sold only after the court enters a final judgment.

Florida forecloses this way: section 702.01 of its statutes says all mortgages shall be foreclosed in equity. Other states let a lender sell without a suit, after a recorded notice of default; those are non-judicial foreclosures.

See also: Final judgment of foreclosure, Notice of default, Lis pendens

Final judgment of foreclosure

A final judgment of foreclosure is the court's order ending a foreclosure suit in the plaintiff's favor, setting the amount owed and directing that the property be sold.

In Florida the judgment directs the clerk to sell the property on a day 20 to 35 days later (Fla. Stat. 45.031). Until then the case is a pre-foreclosure; once a sale is set, it is a foreclosure and leaves this site.

See also: Judicial foreclosure, Pre-foreclosure

Response due

The response date is the date a notice of action gives a defendant to serve written defenses to the suit on the plaintiff's attorney and file them with the clerk.

An owner who does not respond can be defaulted, which moves the case toward judgment faster. It does not set a sale: no sale can be set until a judgment is entered.

See also: Notice of action, Final judgment of foreclosure

Reinstatement

Reinstatement is bringing a loan in default current by paying everything past due, with the fees and costs the mortgage allows, so the foreclosure is dropped and the loan continues.

Whether, and until when, an owner can reinstate depends on the mortgage and the state. It is one of the options a pre-foreclosure leaves open that a sale closes.

See also: Loss mitigation, Pre-foreclosure

Loss mitigation

Loss mitigation is the set of options a mortgage servicer can offer a borrower in default instead of foreclosing: a repayment plan, a forbearance, a loan modification, a short sale or a deed in lieu.

Federal servicing rules (Regulation X) generally bar a servicer from making the first foreclosure filing until a borrower is more than 120 days delinquent, and limit moving to judgment while a complete application is under review.

See also: Reinstatement, Short sale, Deed in lieu of foreclosure

Short sale

A short sale is a sale of a property for less than the debt secured on it, made with the lender's agreement to accept the proceeds and release its lien.

Common in pre-foreclosure when the owner has little or no equity. The lender has to approve the price and the buyer, which takes time.

See also: Loss mitigation, Deed in lieu of foreclosure

Deed in lieu of foreclosure

A deed in lieu of foreclosure is an owner's transfer of the property to the lender, by deed, in exchange for ending the foreclosure and usually releasing some or all of the debt.

It spares both sides the rest of the suit. A lender usually wants clear title, so other liens on the property can stand in the way.

See also: Short sale, Loss mitigation

Notice of default

A notice of default is a notice, recorded or sent, that a borrower has defaulted on a mortgage or deed of trust, starting the foreclosure in states that foreclose without a lawsuit.

It is the non-judicial counterpart of a lis pendens: the first public filing of a pre-foreclosure. Florida, a judicial state, does not use one to start a foreclosure.

See also: Judicial foreclosure, Pre-foreclosure

Legal description

A legal description is the precise description of a parcel used in deeds and court filings, by lot and block of a recorded plat or by metes and bounds, rather than by street address.

Many notices of action describe the property only this way. The record keeps it with the parcel ID where printed, and either finds the property in the county's property records.

See also: Parcel ID

Parcel ID

A parcel ID is the number the county property appraiser or assessor gives a parcel of land, used to look it up in the property and tax records.

Also called a folio or account number in some Florida counties. Records here carry it when the notice prints it.

See also: Legal description