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How to avoidForeclosure

Homeowner guide

Judicial vs nonjudicial foreclosure, and which one your state uses

The biggest difference between states is whether the lender has to go to court. In a judicial state you are sued and can answer. In a nonjudicial state the sale can happen without any court case unless you start one.

Reviewed October 13, 2026. General information, not legal, tax or financial advice.

Judicial foreclosure: the lender has to sue

  • The lender files a lawsuit and you are served with a summons and complaint. A lis pendens is usually recorded against the home.
  • You get a set number of days to file a written answer. The number is on the summons. If you do not answer, the lender can win by default.
  • A judge has to enter a foreclosure judgment before any sale.
  • The sale is run by a sheriff or a court officer. See notice of sheriff's sale.

Because a judge is involved at each step, the court is where you raise problems with the foreclosure, and some courts run mediation programs.

Nonjudicial foreclosure: no lawsuit

  • Your deed of trust or mortgage contains a power of sale clause that lets a trustee sell the home without a court case.
  • You receive notices instead of a lawsuit, such as a notice of default and a notice of sale. Your state sets what must be sent, how, and how long before the sale.
  • No judge reviews the foreclosure unless you file a lawsuit yourself to challenge it.
  • It is usually faster than a court foreclosure.

Because nobody checks the process for you, the dates on the notices matter even more. Write them down, and talk to legal aid or a lawyer quickly if you think the lender made a mistake.

States where foreclosures mostly go through court

States where foreclosures mostly happen without a court case

States that use both

South Dakota.

These lists show the usual process for a home loan in each state. Many states allow both kinds, and the one used depends on your loan documents. Your state's page explains its process step by step.

What is the same everywhere

  • The federal 120-day rule applies to both kinds: in most cases the servicer cannot make the first notice or filing until you are more than 120 days behind.
  • The federal rules on applications for help apply to both kinds. See your federal rights.
  • Every option for avoiding foreclosure is available in both kinds.
  • If you are in military service or left within the past year, and the mortgage is older than your service, a sale without a court order is not valid even in a nonjudicial state. See military protection.

How much time do you have? It depends on your state.

See the foreclosure timeline, deadlines and free local help for the state where the home is.

Common questions

How do I know which kind mine is?

Look at what you were sent. A summons and complaint from a court means judicial. A notice of default or notice of sale from a trustee, with no court case number, means nonjudicial. The free letter finder can help you identify a letter.

I am in a nonjudicial state. Can I still get in front of a judge?

Yes, but you have to start the case, by filing a lawsuit to challenge the foreclosure or by filing bankruptcy. Both have costs and deadlines. Talk to legal aid or a foreclosure lawyer in your city first.

Keep reading

Sources

  1. 12 C.F.R. § 1024.41, loss mitigation procedures (eCFR)
  2. 50 U.S.C. § 3953, Servicemembers Civil Relief Act, mortgages (govinfo)
  3. HUD: Avoiding foreclosure

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