questions & answers

Question: How can I get back my property I sold to someone (deed of trust) who promised to pay me monthly for 30 years arrangement, but become delinquent in payments? How to foreclose it from home owner? Does home owner covered by AZ anti-deficiency law?

Answer: Deeds of trust almost always include a power-of-sale clause, which allows the trustee to conduct a non-judicial foreclosure, that is, sell the property without first getting a court order. A.R.S. 33-807. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/00807.htm&Title=33&DocType=ARS Non-Judicial foreclosure The primary type of foreclosure in Arizona is known as non-judicial foreclosure. A non- judicial foreclosure does not involve court action but requires notice, foreclosure by advertisement. When the trust deed is initially signed it generally usually contains a provision called a power of sale clause. In the event of default, it allows a trustee to sell the property in order to satisfy the underlying defaulted loan. A.R.S 33-808. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/00808.htm&Title=33&DocType=ARS Responsibilities of a trustee A trustee may conduct the foreclosure sale out of court under a power of sale clause if the borrower defaults on the loan. Alternatively, a trustee (or the lender) may sue to foreclose. A trustee may also sue the borrower for physical abuse to the property, waste, or other impairment of the security, but only so long as the borrower was in possession or control of the property when the damage was done. The trustee cannot conduct a foreclosure sale under the power of sale clause until a lawsuit to foreclose is dismissed. A.R.S. 33-803.1 http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/00803-01.htm&Title=33&DocType=ARS Deficiency Judgment In Arizona, the lender can obtain a deficiency judgment by filing a separate lawsuit within 90 days following a nonjudicial trustee’s sale or as part of a judicial foreclosure. However, the anti-deficiency statute for deeds of trust applies to all deeds of trust that are foreclosed nonjudicially (whether or not the deed of trust is purchase money) where the property does not exceed 2.5 acres and is utilized as a single one- or two-family dwelling. A.R.S.33-814. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/00814.htm&Title=33&DocType=ARS