“How do I stop a non judicial foreclosure in Alabama? I want a judge to look at this!”

Which way do you go when you are facing a foreclosure in Alabama?

Your mortgage company is threatening to take your home in a foreclosure in Alabama.  You know this is wrong.

You want to stop it or at least have a judge look at this issue.

Surely the foreclosure can’t happen without a judge, right?

Well . . . .

In Alabama, foreclosures can be judicial or non judicial but . . . .

So two ways to do a foreclosure in Alabama.

Judicial — where a judge is asked to look at the facts and the law and decide if a foreclosure is proper.  This happens, for example, in Florida in virtually every foreclosure.

Non judicial — this is where NO judge looks at your situation.  No judge reviews the facts.  You don’t get a judge to decide whether the foreclosure is right or wrong.  Instead the mortgage company simply decides to foreclose and then sells your home in an auction at the courthouse steps.

It won’t shock you to learn that 99.9% of foreclosures in Alabama are “non judicial” — I wonder why?

Is it just random chance?  Like flipping a coin a 1000 times and 999 it comes up “heads”?

Nope.

Mortgage companies choose the best approach for them.

That means they choose non judicial foreclosures.

In all the years I’ve been practicing I have only seen one judicial foreclosure — it was an odd commercial case.  No residential foreclosure has been done judicially to my knowledge.

Let’s see why . . . .

Mortgage companies are going to choose the form of foreclosure that helps them take your home as quickly as possible and cuts off your rights to object.

Makes sense, right?

They choose the best one for them.  Not you.

This is why they choose non judicial foreclosures.

They don’t want a judge looking over their shoulder.  They don’t want you to have a chance to raise any defenses to the foreclosure.

Nope — they want you to keep your mouth shut, let them foreclose, and then force you to leave your home.

Is there any solution to this problem?

The solution is to sue your mortgage company before the foreclosure and turn it into a judicial foreclosure — have a judge look at your defenses to the foreclosure.

Let me explain what I am NOT talking about.

I’m not talking about the traditional (non) solution.  Sue and ask for a TRO.

A TRO is a “temporary restraining order” that lasts about 10 days.

You sue, desperately try to find a judge to grant a TRO and normally you have to buy a bond.  That bond is normally going to cost you 10% of the value of your house, or more.

So you have a $200,000 house — are you really going to pay (never to get back) $20,000 to stop the foreclosure?

It is a crazy solution (actually not a solution) and this is what folks believe is their only option.

Here’s the better solution — sue your mortgage company to have your defenses to the foreclosure heard by the judge.  No TRO.  Just a lawsuit.

Your mortgage gives you the right to have your defenses heard in court.  But this is not Florida where you literally get to put your defenses in front of a judge when sued for foreclosure.

If you want a judge to look at your defenses, you have to sue your mortgage company.

Handle it however you like but we don’t do TROs.

We simply sue.

We give the mortgage company a choice:

• Stop the foreclosure
• Proceed with foreclosure even though we sued to have our defenses heard

Smart mortgage companies will stop the sale date.

Even crooked mortgage companies will stop the foreclosure because they know the enormous price they would pay if they go ahead with the sale and it turns out you had a valid defense.

We put this choice in front of the mortgage companies and let them decide their own fate.

There are no guarantees but if you are close to a foreclosure date in Alabama, this is likely your best option.

You need to do some things right:

• Right type of lawsuit
• Filed at the right time (i.e. not too early and not too late)
• Have the right lawyers that the mortgage company will take seriously
• Put the right claims and right defenses in the lawsuit
• Combine this with federal laws such as the FDCPA and RESPA

No guarantees but if you do this in the right way at the right time, you greatly increase your odds of stopping the taking of your home and then having a judge look at the total situation.

At my firm we only take this option when we have a game plan for how to be successful in the case and in resolving the dispute so you can stay in your home.

If you are facing a foreclosure — especially in the next week or few days — this may be your best option but you have to take immediate action.

We talk about options other than bankruptcy and this is approach of suing is normally one of the best options.

But time is not your friend.

It is your enemy.

So fight back — take immediate action in the right way.

Call us at 205-879-2447 and let us know you are interested in finding out more about this option for you.

Ask for Randi and we’ll get right on this for you.

John Watts