subject: Learn The Difference Between Mortgage Default And Default Judgment In Foreclosure [print this page] When banks foreclose on a home, the owners are often confused by the language utilized in the numerous legal documents. One of the terms that causes the most misunderstanding is'default.' There are at least 2 different ways this word is employed during the foreclosure process, neither of which have good implications for the borrowers almost all of the time. However homeowners should know the way the word will be utilised by the bank.
The first way that banks use the word'default' is when they allege that the owners are in default of the mortgage contract. The borrowers sign the mortgage, cash advance or deed of trust to establish the terms under which they will make payments to the bank or servicing company to keep the contract ready. Once payments are missed, the payment details of the contract have been breached and the homeowners are in default.
So a default of a mortgage contract suggests that the householders have not managed to meet one of the conditions for holding up their end of the agreement. While there are other paths to fall into default of a loan, the most common break of the contract is when borrowers fail to make payments on time and the bank begins the foreclosure process. In the suit bureaucracy, the bank claims the owners are in default.
The second way that banks use the word'default' is when they file a motion with the court in the foreclosure. This motion might be called an order of default, motion for default judgment, or some other similar term. For the purposes of this article, the motion will be called an'order of default.' however homeowners should bear in mind that the same kind of legal document may have a different name in their state.
An order of default means the bank is making an attempt to get a judgment against the householders for foreclosure without having to go thru a trial or other court techniques. Naturally, this cannot be done just below any circumstances, but it is often done in foreclosure cases due to the ignorant nature of most borrowers. The bank can begin some steps of the method and then get a judgment without having to prove its case.
This is usually done when householders don't show up at an initial foreclosure hearing or file an answer to the lender's complaint. The borrowers' silence is taken by the courts to mean that they don't have any objection or discussion with the bank's allegations of breaking the mortgage contract, nor do they dispute the lender's ability to bring a foreclosure because of bad credit loans into court in the 1st place.
Therefore, if the house owners didn't file an answer to the lawsuit or show up or request a hearing on the problem, then the bank will request that an order of default judgment be entered by the court. Most courts will have little problem entering this order, as they figure the house owners were given sufficient time in which to hire a barrister, get a law degree, or learn the court procedures competently enough to file a solution.
An order of default isn't the end of the line as homeowners can try and have the default judgment left or dismissed. This specifies that they file the suitable motions in court in time. If the order to vacate the default judgment is granted, the bank will have to chase the lawsuit more scrupulously. It won't be in a position to rely on homeowner unfamiliarity with the process to have the home sold at a policeman sale.
It's a tiny tragedy that most foreclosure cases are decided by default judgment. This is due to so many borrowers not filing an answer or showing up to foreclosure hearings. So, it is important for more borrowers to educate themselves on at least a few simple steps they can take to make it much harder for the bank to declare them in default of the contact and then get a default judgment against them.
by: Romeo Laventino
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