- Who sends it
- The trustee named in your deed of trust, by certified or registered mail within 5 business days after recording, with a statement of breach signed by the lender or its agent
- What it starts
- A sale no earlier than the 91st day after the notice was recorded
- Do this first
- Find the recording date and sale date, then send the trustee a written request for the exact reinstatement amount
What this notice is in Arizona
Most Arizona home loans use a deed of trust. Under Ariz. Rev. Stat. § 33-807, the trustee can sell the home without a court case after a default. Ariz. Rev. Stat. § 33-808 requires the trustee to give notice four ways: record the notice with the county recorder, mail it, post it on the home and at a superior court building at least 20 days before the sale, and publish it in a newspaper once a week for four weeks in a row, with the last ad at least 10 days before the sale.
The notice must list the date, time and place of the sale, the street address and legal description, the tax parcel number, the original principal balance, the names and addresses of the lender (the beneficiary) and the trustee, the trustee's phone number and signature, and the agency that regulates the trustee.
Your mailed copy must also come with a statement that a breach of the deed of trust or loan has occurred, what the breach is, and that the lender has chosen to sell the home. Ariz. Rev. Stat. § 33-809(C) requires that statement to be signed by the lender or its agent. Arizona does not use a separate notice of default before this notice.
The bold warning at the top
Every Arizona notice must open with a warning in bold capital letters. It says that if you believe there is a defense or objection to the sale, you must file a court action and get an order under Rule 65 of the Arizona Rules of Civil Procedure stopping the sale no later than 5:00 p.m. Mountain Standard Time on the last business day before the sale, or you may have waived your defenses and objections.
Ariz. Rev. Stat. § 33-811(C) makes that real: objections not raised in a case that results in such an order before that deadline are waived. A copy of the order, the application and the complaint must reach the trustee within 24 hours. If you think the lender made a mistake, talk to a lawyer early, because getting an order takes time.
How to count your deadlines
- Sale date: the trustee cannot sell before the 91st day after the date the notice was recorded (Ariz. Rev. Stat. § 33-807(D)). Find the recording date stamped on the notice or on the county recorder's website. The day after recording is day 1. The sale also cannot be on a Saturday or legal holiday, and must be held between 9:00 a.m. and 5:00 p.m.
- Mailing: your copy must be mailed within 5 business days after recording. A copy for a single family home also goes to the property address.
- Reinstatement: you can reinstate until 5:00 p.m. Mountain Standard Time on the last day before the sale that is not a Saturday or legal holiday (Ariz. Rev. Stat. § 33-813(A)). In Arizona, Sunday counts as a legal holiday (Ariz. Rev. Stat. § 1-301), so for a Monday sale the deadline is usually the Friday before. Check the state holiday list too, because Arizona has some holidays other states do not.
- Court order: the Rule 65 order must be entered before 5:00 p.m. on the last business day before the sale.
- Federal review: if your servicer receives a complete loss mitigation application more than 37 days before the sale, federal rules bar the sale while it reviews you. Count back 37 days from the sale date and aim to be well ahead of it.
What it does and does not mean
- It is not a sale and not an eviction. You still own the home and can stay until the sale and after it until the buyer goes through the steps in the written demand for possession.
- Reinstating means paying the past due amount, not the whole loan, plus costs the law allows. The trustee's fee in a reinstatement is capped at $600 or one half of 1 percent of the unpaid principal, whichever is greater (Ariz. Rev. Stat. § 33-813(B)). After you reinstate, the trustee must record a cancellation of the notice of sale.
- Sales are often postponed. The trustee can announce a new date at the scheduled sale, and the new date must be within 90 calendar days (Ariz. Rev. Stat. § 33-810(B)). No new letter is required, so call the trustee to ask.
- If the lender files a court foreclosure instead, the trustee's sale cannot go ahead while that case is pending (Ariz. Rev. Stat. § 33-807(B)).
What to do this week
- Write the recording date and the sale date on your calendar, and count to the reinstatement deadline.
- Send the trustee a written request for the exact amount needed to reinstate. Under Ariz. Rev. Stat. § 33-813(D), the trustee must answer within 5 business days, listing costs and fees separately. Asking does not extend your deadline.
- Thirty days or more after recording, you can also ask the trustee in writing for the unpaid principal balance and a list of known liens (Ariz. Rev. Stat. § 33-809(E)). The trustee may charge a fee of no more than $100 for this.
- Send your servicer a complete loss mitigation application and keep proof of when it arrived. A free HUD-approved housing counselor can help; call (800) 569-4287.
- Apply for free or low cost legal aid through AZLawHelp.org or by phone at 866-637-5341. If you rent the home to a tenant, Ariz. Rev. Stat. § 33-1331 requires you to give the tenant written notice of the foreclosure within 5 business days after you receive this notice, unless the building has four or more connected units.
- Read how an Arizona foreclosure works, how to stop a foreclosure in Arizona and what to do when an Arizona sale date is set.
Scams that follow this notice
Notices of trustee's sale are recorded and published, so expect letters and visits from people offering to save your home. Under Ariz. Rev. Stat. § 44-1378.02, a foreclosure consultant cannot collect any fee until every promised service is fully done, and you can cancel a consultant contract until midnight of the third business day after you sign. Never sign your deed over to someone who says it will stop the sale. Report problems to the Arizona Attorney General at 602-542-5763. See is this letter a scam and Arizona foreclosure help.
The rest of the Arizona process
See how foreclosure works in Arizona, the timeline, ways to stop it and free help in Arizona, or read the national guide to this letter.
Common questions
How long after an Arizona Notice of Trustee's Sale can my home be sold?
Not before the 91st day after the notice was recorded, under Ariz. Rev. Stat. § 33-807(D). The sale cannot be on a Saturday or legal holiday, and it can be postponed to a new date within 90 calendar days of each announcement.
What is the last day to reinstate after an Arizona Notice of Trustee's Sale?
Before 5:00 p.m. Mountain Standard Time on the last day before the sale that is not a Saturday or legal holiday, under Ariz. Rev. Stat. § 33-813(A). Sunday is a legal holiday in Arizona, so count back to the last weekday before the sale and leave time for your payment to arrive.
Do I have to go to court if I think my Arizona trustee's sale is wrong?
Yes, if you want to keep your objections. Ariz. Rev. Stat. § 33-811(C) says defenses and objections are waived unless they are raised in a court action that results in a Rule 65 order entered before 5:00 p.m. on the last business day before the sale. Talk to a lawyer or legal aid right away.
Will I get a separate notice of default before this in Arizona?
No separate state notice of default is required. Your mailed copy of the Notice of Trustee's Sale must include a statement of the breach. You may still get federal or loan-contract letters from your servicer before it, such as a breach letter.
Other Arizona letters
- Trustee's Deed Upon SaleThe Trustee's Deed Upon Sale transfers your home to the winning bidder at an Arizona trustee's sale. Arizona law says this deed is absolute, without any right of redemption, so you cannot buy the home back by paying later. Your remaining issues are when you must leave, whether money is left over for you, and whether you could owe a deficiency.
- Notice of Excess ProceedsIf your Arizona trustee's sale brought in more than the costs and the loan, the trustee must mail you a notice of excess proceeds within 15 days. The money then goes to junior lienholders in order and the rest to you. You can claim it yourself, and Arizona limits what someone can charge to help.
- Written demand for possessionAfter an Arizona trustee's sale, the new owner must give you a written demand for possession before it can go to court to remove you. It is a demand, not a court order. If you stay after receiving it, the buyer can file a forcible detainer case, which moves very fast.
- Forcible detainer summons and complaintA forcible detainer case is the court case an Arizona buyer files to remove you after a trustee's sale. The summons must be served at least 2 days before the court date, and the only question is who has the right to possession. If the buyer wins, the court cannot issue a writ of restitution until 5 calendar days after judgment.
Sources
- Ariz. Rev. Stat. § 33-807, Sale of trust property; power of trustee
- Ariz. Rev. Stat. § 33-808, Notice of trustee's sale
- Ariz. Rev. Stat. § 33-809, Mailing by trustee; disclosure of information
- Ariz. Rev. Stat. § 33-810, Sale by public auction; postponement
- Ariz. Rev. Stat. § 33-811, Payment of bid; trustee's deed; waiver of objections
- Ariz. Rev. Stat. § 33-813, Reinstatement; cancellation of notice of sale
- Ariz. Rev. Stat. § 33-1331, Notice of foreclosure to tenants
- Ariz. Rev. Stat. § 1-301, Holidays enumerated
- State Bar of Arizona: Legal Aid Resources and Modest Means Project
- AZLawHelp.org