What Is a Lien and Foreclosure?


A lien is a notice attached to your character which puts everyone on constructive notice that a creditor has a claim. A lien is typically a filed and recorded in the county public records (if involving real character) or with the secretary of state (if involving personal character). Why does a lien help a creditor? Well… in order to sell or refinance the character, the borrowers lender is going to require clear title on the character as a prerequisite to the loan. consequently, a lien existing on your house has the negative effect of clouding the title and consequently prevents you from selling your character. In order to clear title on the character, you must pay off the lien and have a release filed in the county public records putting everyone on notice of the release of indebtedness. If the lien is not paid off, certain lien holders can choose to foreclose on the character and retrieve what they owe.

The 7 Most shared Types of Liens

character Tax Lien: When a homeowner fails to pay the taxes on his character then the city or county in which the character is located has the authority to place a lien on the character and force a sale if the taxes are not paid.

IRS Lien: An IRS lien is filed by the federal government for the failure to pay your taxes. If you happen to have equity in your character, the tax lien can be paid out of the sales proceeds at the time of closing. If the home is being sold for less than the lien amount, the taxpayer can request the IRS release the lien to allow for the completion of the sale. The taxpayer can also can ask that a federal tax lien be made secondary to the lending institutions lien to allow for the refinancing or restructuring of a mortgage.

Mechanics Lien: A mechanics lien is a statutory lien that secures payment for sets and labor and materials related to improvements performed on real character. State statutes creating mechanics liens vary by state. These statutes provide for the criteria and circumstances required for creating, filing and perfecting mechanics liens. Mechanics liens are usually classified as super liens meaning they may be superior to all existing liens before recorded against real character, including a mortgage lien intended to be a first priority lien.

HOA Lien: Homeowners that live in a covenanted community will often be required to pay a regular fee to the HOA to cover maintaining the community. For example, the HOA will collect fees to pay for things like landscaping, security, or maintaining the shared areas such as pools, tennis courts, workout rooms, and clubhouses. To determine the amount that each homeowner must pay, the HOA will typically develop a budget and divide the total expenses by the number of homes in the community. The homeowner must pay his proportion on a predetermined basis throughout the year. Additionally, the HOA may levy special assessments for one-time expenses if the HOAs save funds are inadequate. For example, an HOA may levy a special assessment to pay for a new road that is damaged or to replace the guard gate. If the homeowner becomes delinquent in paying their monthly fees or special assessments, a lien will be filed by the HOA and automatically attach to the homeowners character. This lien clouds title on the character and can be foreclosed in order to satisfy the debt.

Judgment Lien: A judgment lien is a kind of lien that is produced upon recording when a lawsuit is won against you and then attached to your character in order to receive payment upon the sale of it.

Utility Lien: A lien filed upon a character by the city or utility service for failure to pay a utility bill such as water or electricity.

Divorce Lien: A lien filed upon the character as the consequence of a divorce decree.

Are all liens the same?

No! Liens vary in kind and in priority. Priority is basic to a lender, and the benefits to having a first priority lien such as a first lien mortgage on the character are very important. A lender holding a senior lien in the form of a mortgage on real estate is entitled to repayment of its debt from the proceeds of a mortgage foreclosure sale before the repayment of any junior lien holder. This is very important because a foreclosure extinguishes all interests in the collateral (aka the house) that are junior to that mortgage.

What is the foreclosure course of action?

The foreclosure course of action differs from state to state. In Florida (a judicial foreclosure state), the lender files a lawsuit by way of a complaint with the clerk of courts and serves along with a summons to the borrower. The lender will include any other junior lien holders in the complaint in order to foreclose out their inferior interests such as co-borrowers or unknown tenants that may have a leasehold interest in the home. Once the borrower receives the complaint, he has 20 days to file an answer. If not, the lender will file for a default judgment. However, if the borrower files an answer, then the lender will either file later affidavits in supporting his position and refute any affirmative defenses in the borrowers answer. If the lender was unable to acquire a default judgment, a lender will likely file a motion for summary judgment. A motion for summary judgment can end a case if the lender is able to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Most foreclosure situations end this way simply because the facts are not in argument and entitlement to judgment is easily established as a matter of law. If the lender prevails at summary judgment or at trial if the estimate failed to grant summary judgment, then the lender is granted a final judgment for a foreclosure. The judgment sets a sale date of the foreclosure (typically within 60-90 days). It is up to the lender to publish in a newspaper for two consecutive weeks prior to the sale the date and time of the foreclosure. Proof of that publication is needed to ensure all other parties received constructive notice of the sale. At the sale, the character is then sold to the highest bidder with the lender receiving a credit for his bid up to the final judgment amount. The borrower then has 10 days after the sale to file an objection to the court issuing a new certificate of title to the character in the name of the prevailing bidder. Upon recording of the new certificate of title by the clerk, the prior homeowner must vacate the character. If the homeowner does not vacate the character, the new owner may evict the old homeowner by filing a motion for writ of possession and sending the sheriff out the character to execute the writ. The sheriff will post the writ on the character giving the prior homeowner 24 hours notice to move out. If the homeowner does not move out, the sheriff will physically make you vacate the premises.

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