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In Utah, lenders may
foreclose
on a mortgage in default by using the judicial foreclosure process.
Judicial
Foreclosure
The
judicial
foreclosure process is one in which the lender must file a complaint
against
the borrower and obtain a decree of sale from a court having
jurisdiction
in the county where the property is located before foreclosure
proceedings
can begin. Generally, if the court finds the borrower in default, they
will give them a set period of time to pay the delinquent amount, plus
costs. If the borrower does not pay within the set period of time, the
court will then order the property to be sold in the manner of normal
execution
sales.
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, typically referred to as the trustee.
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.
Otherwise,
the non-judicial power of sale foreclosure is carried out as follows:
A notice of sale must be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the county
where the property is to be sold. The last publication must be at least
ten (10) days but
not more than thirty (30) days before the date of sale is scheduled.
The notice of sale must also be posted, at least twenty (20) days
before
the date of sale is scheduled, in some conspicuous place on the
property
to be sold and at the office of the county recorder of each county in
which
the property is located.
The place of sale must be clearly advertised in the notice of sale and
the sale must be held between the hours of 8 am and 5 pm.
Borrowers do have a right of
redemption
in Utah, but the court may extend the redemption time past the time
allowed
in regular judgments so there is no set length of time.
It is possible to obtain a deficiency judgment against the borrower for
the difference between the amount the borrower owed on the original
loan
and the foreclosure sale price and the lender may be able to seize the
property until the differing amount is paid.
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