The below is a general overview of a foreclosure process in the State of Kansas. This is not a substitute for the advice of an attorney and you should contact an attorney if you need a foreclosure filed or if you need assistance in defending against a foreclosure action. The below is not expansive. There are many situations that are not covered below. The below is not legal advice.
Before a foreclosure on real estate is filed, the bank should provide the borrower a right to cure notice. This notice, in some situations, is even required by Kansas law. Federal law requires that in some situations certain homeownership counseling options are provided to the borrower as well.
After all prerequisites to the filing of foreclosure are met, the bank’s attorney will file a petition for mortgage foreclosure with the court. The court will provide a copy of the petition and a summons to the Sheriff or process server which will make service of those papers by delivering them to the borrower. After being served, the borrower must follow the rules of civil procedure to properly respond to the petition. Failure to properly respond will subject the borrower to default judgment. A default judgment is a judgment granted to the plaintiff (bank) when the other side fails to defend against the claims.
If the borrower properly responds then the case will proceed into the discovery phases wherein the borrower may make requests of the bank to obtain certain documentation to establish whether the bank followed all necessary rules and to ensure foreclosure is the proper remedy.
After a bank takes judgment against a borrower, the bank must wait about half a month before requesting the court order the sale of the property. This period is established by law and gives the borrower the opportunity to pay the judgment.
If the borrower does not pay the judgment, then the bank requests an order of sale from the court. The order of sale commands the Sheriff to publish the sale in the newspaper and conduct the sale. There are laws governing publication including the paper to be used, the amount of times the publication must run and the duration of time within which the sale must take place after the last publication.
At the sale the Sheriff is in charge and will accept bids on the property. Anyone with permission of the court may bid its judgment obtained in the case as cash. This usually applies to the bank that filed the foreclosure action and explains why the bank’s representative doesn’t hand thousands of dollars in cash to the Sheriff at the sale. Once the Sheriff accepts the winning offer, he will complete a return of sale which will be filed with the court. This return details the winning bid, specifically the winner and how much they bid.
The bank’s attorney will request the court confirm the sale. This is when the court has the opportunity to review the return and any other aspects of the sale to ensure they are conducted in conformity with law. If any problems are found, the court may remedy those problems. If there are no problems, the court will confirm the sale and order the Sheriff to issue a certificate of purchase.
The certificate of purchase is a document issued by the Sheriff that conducted the sale to state that the holder is entitled to a deed to the property after any applicable redemption period has expired. In certain situations the borrower may be entitled to a redemption period. A redemption period allows the borrower to try and obtain funds to purchase their property back. During the redemption period, the borrower will be allowed to remain in the property.
Upon the expiration of the redemption period, the holder of the certificate of purchase may submit the certificate of purchase to the Sheriff and request a deed. The Sheriff will issue the deed and that deed should be recorded with the Register of Deeds. If the borrower is still living in or using the property the owner as stated in the deed may obtain a writ of assistance wherein the court will command the Sheriff to remove them from the property.
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