Foreclosure

questions & answers

Question: I am curious about the 90 day requirement to file a lawsuit for a deficiency on a foreclosed home. In my case, I had a purchase money loan and a second mortgage from the same lender. After the foreclosure, the lender has continued to keep the second mortgage in an "open" status. Is the lender barred from suing on the second mortgage past 90 days of foreclosure or do they have up to the 6 year AZ statute of limitations to sue?

Answer: When a property under a trust deed is foreclosed and the property sold for less than the amount owed there is a deficiency. The creditor has ninety days to recover the amount owed. Arizona Revised Statutes 33-814 (D) states, “[i]f no action is maintained for a deficiency judgment within the time period prescribed in subsections A and B of this section, the proceeds of the sale, regardless of amount, shall be deemed to be in full satisfaction of the obligation and no right to recover a deficiency in any action shall exist.” A.R.S. 33-814
Arizona Revised Statute 33-729 discusses purchase money mortgages. It states: “A. Except as provided in subsections B and C of this section, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.
B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.
C. For mortgages that are originated after December 31, 2014, subsection A of this section does not apply to real property as follows:
1. Real property owned by a person who is engaged in the business of constructing and selling dwellings that was acquired by the person in the course of that business and that is subject to a mortgage given to secure payment of a loan for construction of a dwelling on the property for sale to another person.
2. Real property that contains a dwelling that was never substantially completed.
3. Real property that contains a dwelling that is intended to be utilized as a dwelling but that is never actually utilized as a dwelling.
D. For the purposes of this section, a dwelling is substantially completed if either of the following occurs:
1. Final inspection is completed, if required by the governmental body that issued the building permit for the dwelling.
2. If a final inspection is not required by the governmental body that issued the building permit, the dwelling has been completed in all material respects as prescribed in the applicable ordinances and regulations of the governmental body that issued the building permit for the dwelling.” A.R.S. 33-729

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QUESTIONS

  • I am curious about the 90 day requirement to file a lawsuit for a deficiency on a foreclosed home. In my case, I had a purchase money loan and a second mortgage from the same lender. After the foreclosure, the lender has continued to keep the second mortgage in an "open" status. Is the lender barred from suing on the second mortgage past 90 days of foreclosure or do they have up to the 6 year AZ statute of limitations to sue?

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