Difference between revisions of "Foreclosures in Missouri"
Davidjenkins (talk | contribs) |
Davidjenkins (talk | contribs) (→Overview) |
||
| Line 1: | Line 1: | ||
==Overview== | ==Overview== | ||
| − | Missouri recognizes three forms of foreclosure: Judicial, Non-Judicial, and Equitable. Missouri recognized the use of both Deeds of Trust and Mortgages, but | + | Missouri recognizes three forms of foreclosure: Judicial, Non-Judicial, and Equitable. Missouri recognized the use of both Deeds of Trust and Mortgages, but allows Mortgages to contain a Power of Sale clause. Non-Judicial foreclosure is available for any Security Instruments that contain Power of Sale clauses. Judicial foreclosure is used primarily when the Security Instrument being foreclosed lacks a Power of Sale clause or to fix other problems that prevent a Security Instrument from being foreclosed Non-Judicially. Judicial foreclosure must also be used for Mortgages that contain a Power of Sale clause if the lender intends to purchase the asset. Equitable Foreclosure is sometimes used to refer to the power of the Circuit Court's ability to foreclose a property when sitting in Equity. |
==Common Forms== | ==Common Forms== | ||
Revision as of 12:52, 5 August 2018
Overview
Missouri recognizes three forms of foreclosure: Judicial, Non-Judicial, and Equitable. Missouri recognized the use of both Deeds of Trust and Mortgages, but allows Mortgages to contain a Power of Sale clause. Non-Judicial foreclosure is available for any Security Instruments that contain Power of Sale clauses. Judicial foreclosure is used primarily when the Security Instrument being foreclosed lacks a Power of Sale clause or to fix other problems that prevent a Security Instrument from being foreclosed Non-Judicially. Judicial foreclosure must also be used for Mortgages that contain a Power of Sale clause if the lender intends to purchase the asset. Equitable Foreclosure is sometimes used to refer to the power of the Circuit Court's ability to foreclose a property when sitting in Equity.
Common Forms
The most common form of foreclosure in Missouri by far is Non-Judicial. Non-Judicial foreclosure is available for Security Instruments that contain Power of Sale clauses, which includes the vast majority of both Mortgages and Deeds of Trust recorded in Missouri. Judicial foreclosure is not common and is used primarily to fix problems associated with the Security Instrument being foreclosed or because of a lack of a Power of Sale clause. Equitable Foreclosure is rarely, if ever, used.
Non-Judicial
Assignments of Security Instruments
The chain of title for security instruments should be verified during examination to ensure that the proper party has the rights to satisfy, release, or foreclose on a given security instrument. All assignments must be recorded prior to the commencement of foreclosure.
Recorded Foreclosure Notice
There is no filed or recorded foreclosure notice in Non-Judicial foreclosures in Missouri. For Non-Judicial foreclosures, the Foreclosure Deed, which is usually titled as a Trustee's Deed, is typically the first publicly recorded document.
Foreclosure Process
Non-Judicial foreclosures in Missouri are commenced outside of the Public Records. Upon completion of the foreclosure, all junior liens, except as noted below, are discharged from the property so long as the lien holders that were properly served with notice of the foreclosure. Parties that required to receive notice of the foreclosure are limited to branches of the federal government and any lien holder that recorded a request for notice of foreclosure in the Public Records.
- 443.410 - Notice to Borrowers
Attachment of Liens after Commencement
There are no recorded documents or other events in a Non-Judicial foreclosure in Missouri that bar any liens from attaching to the subject property. Any in personam liens filed or recorded up until the Date of Sale attach to the property.
Liens not Discharged in Foreclosure
Real Property Taxes and Municipal Liens, including Water and Sewer Liens, are not discharged by foreclosure in Missouri. The IRS must be noticed in accordance with the federal rules regarding service for a non-judicial foreclosure. Failure to properly notice the IRS in accordance with those rules will result in the lien surviving the foreclosure. Any other lien for which the lien holder recorded a request for notice of foreclosure but was not noticed properly during the foreclosure will survive the foreclosure.
Foreclosure Deed
The most common form of foreclosure deed is called a Trustee's Deed.
Borrower Redemption Rights
The borrower may redeem the property prior to the sale. MO Rev Stat § 443.400. When this is done a certificate will be recorded at the recorder of deeds office that will have the same effect as a Deed of Release. Id.
After a sale has occurred in a Non-Judicial Foreclosure, there is a 1-year right of redemption in favor of the borrower from the Date of Sale of the property at foreclosure. MO Rev Stat § 443.410. The borrower must send notice of an intent to redeem at least ten (10) days before the first advertised Date of Sale to the person making the sale in order to exercise this right of redemption. Id. In addition, within twenty (20) days of the Date of Sale, the borrower must pay a security deposit into the Circuit Court. MO Rev Stat § 443.420.
Third Party Redemption Rights
There are no redemption rights in favor of third parties other than junior liens held by the IRS or other branches of the Federal Government.
