Last reviewed: 3 October 2026
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Judicial vs. nonjudicial foreclosure
Foreclosure is mostly a matter of state law, and states generally use one of two procedures. This page explains the two in general terms; it does not say which procedure your state uses.
What this term means: foreclosure is when the lender takes action to satisfy the homeowner’s debt out of the sale of collateral (the homeowner’s property) when the homeowner fails to make payments on a mortgage.[1]
The two procedures
| Judicial foreclosure | Non-judicial foreclosure | |
|---|---|---|
| How the CFPB describes it | Done by filing a lawsuit. The process goes through a court where the borrower can raise defenses.[1] | Done without filing a court action. It is carried out by a series of steps, including required written notices under a “power of sale” clause in the mortgage or deed of trust.[1] |
| Both procedures (the CFPB does not separate them) | The CFPB says state foreclosure processes require that the borrower be notified, and that the laws generally provide that certain notices and procedures will be followed.[1] A public auction of the property generally will be held; prospective buyers, including the lender, appear at the sale and the property is sold to the highest bidder.[1] Additional state laws generally set out the process for consummating and conveying the property to the bidder (the lender if it was the highest bidder) and the further steps that must be followed.[1] | |
| “First notice or filing” under the federal rule | Where state procedure requires a court action, the first notice or filing is the earliest document required to be filed with a court or other judicial body to commence the action (for example, a complaint, petition, order to docket, or notice of hearing).[2] | Where state procedure does not require a court action, such as under a power of sale, it is the earliest document required to be recorded or published to initiate the process. If nothing must be filed, recorded or published, it is the earliest document that establishes, sets or schedules a date for the sale.[2] |
The CFPB adds that some states may provide a right to mediation before foreclosure.[1] Typically, it says, if you fall a few months behind on your mortgage payments the foreclosure process may begin, although it can begin earlier or later.[1]
Why this page lists no states
Which procedure applies, and what each step looks like, is set by state law. The CFPB page says only that processes “differ by state” and that they “generally” proceed in one of the two ways.[1] This page does not classify states, so it gives no state-by-state list. The CFPB points to a HUD-approved housing counselor and, if you have been served with legal papers, an attorney. Our suggestion: your state’s court rules or attorney general may also say which procedure applies where you live.
What federal servicing rules add, in either procedure
Regulation X, § 1024.41(f)(1), says a servicer shall not make the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process unless the borrower’s mortgage loan obligation is more than 120 days delinquent, the foreclosure is based on a violation of a due-on-sale clause, or the servicer is joining the foreclosure action of a lienholder with a senior or junior lien.[2] Paragraph (g) separately says that if a borrower submits a complete loss mitigation application after the servicer has made that first notice or filing but more than 37 days before a foreclosure sale, the servicer shall not move for foreclosure judgment or order of sale, or conduct a sale, unless listed conditions are met.[2] Our guide to the federal loss mitigation and foreclosure referral timelines goes through those rules.
Where the CFPB says to get help
The CFPB says to reach out for help as soon as you think you might have trouble paying, to read your mail and any legal notices carefully and act promptly, and that if you are facing foreclosure or have been served with legal papers you may also need to consult an attorney. It points to HUD-approved counseling agencies through its “Find a Counselor” tool, the HOPE Hotline at (888) 995-HOPE (4673), and, for military members and veterans, the Department of Veterans Affairs and JAG legal assistance offices.[1]
How to verify this yourself
Read the CFPB page and the regulation text in the reference list; they are the source for each statement above. The notices you receive will say which procedure is being used; keep them and the dates they arrive. A HUD-approved housing counselor can explain your options (how to find one), and an attorney can tell you what your state’s procedure requires. If you think a servicer has not followed a federal servicing rule, our guides on notices of error and filing a complaint describe the routes.
What this page does not cover
This page is general information, not legal advice, and is not a substitute for an attorney or a housing counselor. It does not say which procedure applies in any state, does not describe timelines, redemption or reinstatement rights, deficiency liability or other state-law consequences, and does not describe deadlines in your own case. The CFPB page was last reviewed 3 April 2024; this page was last reviewed 3 October 2026.