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In Alabama, lenders may foreclose
on deeds of trusts or mortgages in default using either a judicial
or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing a lawsuit
to obtain a court order to foreclose, is used when no power of sale
is present in the mortgage or deed of trust. However, when no power
of sale is present, lenders may, at their option, choose to forego
a lawsuit and foreclose by selling the property, as outlined below
in the "No Power of Sale Foreclosure Guidelines".
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power of sale
clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower
pre-authorizes the sale of property to pay off the balance on a loan
in the event of the their default. In deeds of trust or mortgages
where a power of sale exists, the power given to the lender to sell
the property may be executed by the lender or their representative.
Regulations for this type of foreclosure process are outlined below
in the "Power of Sale Foreclosure Guidelines".
- Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power
of sale clause and specifies the time, place and terms of sale, then
the specified procedure must be followed. However, if the deed of
trust or mortgage contains a power of sale clause, but does not specify
the time, place and terms of sale, then a foreclosure sale may take
place at the front or main door of the courthouse of the county where
the property located, after default of the deed of trust or mortgage,
for cash to the highest bidder. The sale may not take place until
thirty (30) days after the last notice of sale is published.
Said notice of sale must be given by publication once a week for four
(4) successive weeks in a newspaper published in the county or counties
in which the property is located. If the property is under mortgage
in more than one county, the publication is to be made in all counties
where it is located. The notice of sale must give the time, place
and terms of said sale, together with a description of the property.
If no newspaper is published in the county where the lands are located,
the notice shall be placed in a newspaper published in an adjoining
county for four (4) successive weeks.
- No Power
of Sale Foreclosure Guidelines
If no power of sale is contained
in a mortgage or deed of trust, the lender, or any assignee thereof,
may, after default of the mortgage or deed of trust, either file a
lawsuit to foreclose or foreclose by selling the property to the highest
bidder for cash at the courthouse door of the county where the property
is situated. Said sale may not take place until after notice of the
time, place, terms and purpose of the sale has been published for
four (4) consecutive weeks in a newspaper published in the county
wherein said lands, or a portion thereof are situated. |
