Question about foreclosing on a purchased mortgage

[Kent Johnson]

An older gentleman I know owns a mortgage and wants to sell it. The occupant has become a problem and is way behind on payments. If he sells the mortgage will the buyer be able to foreclose immediately? The gentleman does not want to foreclose himself for various reasons. The house is in Alabama. Thx, Kent

[Denise Evans]

I don't see anything indicating that a due on sale clause is relevant.  Maybe I'm wrong. Did the original note maker and property owner sell the property?  Or maybe Brian meant to say a power of sale clause, but auto correct changed it to due on sale.

Judicial foreclosures in Alabama are usually done only if the note/mortgage holder believes there will eventually be litigation. Such as, the borrower has threatened to sue, or maybe there is a question about priorities among competing mortgages. In that case, a mortgage holder will file a judicial foreclosure action in order to just get it all out in the open at once and let a judge rule.

Most foreclosures in Alabama are non-judicial. If the mortgage contains a power of sale, then you can do a non-judicial foreclosure.  I would recommend hiring someone in Sirote's foreclosure department to handle it for you. They are very efficient and knowledgeable.

Timing will depend on the note and the mortgage, which might include requirements regarding notice and opportunity to cure.

Once past those things and ready to foreclose, here are the two statutes relevant to timing.  Foreclosures are very technical in their requirements, and doing something wrong can have very expensive consequences for you.  Please hire a VERY experienced attorney to handle this. 

Section 35-10-13 Notice of sale; minimum standards.

Notice of said sale shall be given in the county where said land is located.

Notice of all sales under this article shall be given by publication once a week for three successive weeks in a newspaper published in the county or counties in which such land is located. If there is land under the mortgage in more than one county the publication is to be made in all counties where the land is located. The notice of sale must give the time, place and terms of said sale, together with a description of the property.

If no newspaper is published in the county where the lands are located, the notice shall be placed in a newspaper published in an adjoining county. The notice shall be published in said adjoining county for three successive weeks.

Section 6-8-62 Timing and duration of publication; Internet publication.

(a) When the notice is required to be given for a specified number of weeks, it must be given by consecutive weekly insertions for the number of weeks so specified. When the notice is of a proceeding to be had or of an act to be done on a specified day:

(1) If the publication is for one week, the insertion must be not less than six days before such day;

(2) If for two weeks, the first insertion must be at least 12 days before such day;

(3) If for three weeks, the first insertion must be at least 18 days before such day;

(4) If for four weeks, the first insertion must be at least 24 days before such day;

(5) If for five weeks, the first insertion must be at least 30 days before such day;

(6) If for six weeks, the first insertion must be at least 36 days before such day; and

(7) So on at the same rate of increase, the time to be computed as provided in Section 1-1-4.

(b) When the time is specified in days, two weeks' notice is equal to 15 days' notice; three weeks to 20 days; four weeks to 30 days; and six weeks to 40 days.

(c) A newspaper publishing a notice shall also place the notice on an Internet website operated by the newspaper, if the newspaper publishes a website, and on a statewide website established and maintained by an entity having the capacity and ability to receive and upload legal notices from the majority of newspapers in this state as a repository for the notices. Posting on the Internet shall begin on the first day of insertion and run continuously until the expiration of the specified time. All newspaper notices required pursuant to this section to be placed on the Internet shall remain valid for all purposes, and the legality of the newspaper publication shall not be affected by the failure of the newspaper for any reason to upload legal notice publications to a statewide website or to another Internet website or to accurately post the notice publication on any website.