Foreclosure is a general term that describes the legal process that a mortgage company uses to obtain ownership of a piece of real estate where it holds a security interest in that real estate. In Arizona, the legislature has enacted statutes that make this a non-judicial process in most cases, meaning the lender does not need to file anything with the court to complete the foreclosure. This streamlines the process when compared to other states like Florida where each foreclosure requires a separate lawsuit and involves the procedural complexities that invariably accompany lawsuits. Provided the mortgage company complies with the procedural requirements as set forth in the Arizona Revised Statutes, the completion of the foreclosure process, wherein a Trustee’s Sale is held and title transferred to the successful bidder, will terminate the homeowner’s ownership interest and entitle the purchaser to evict the previous homeowner if he or she has not vacated the property.

Although the lender can usually start the foreclosure process as soon as a homeowner is late with a single mortgage payment, most lenders will make numerous demands and try to work out some other solution before initiating the formal foreclosure process. While its impossible to predict how long a lender might take before taking this step, it is not unusual – particularly during these trying economic times – to see homeowners 3-6 months past due before a lender begins foreclosure proceedings. Significantly, as long as the homeowner is past due it is up to the lender to decide when it is going to proceed, and in some instances the lender may decide to wait many months or even years before foreclosing.

Most homeowners in Arizona have a deed of trust as opposed to a traditional mortgage, which allows the lender to foreclose without going to court. Arizona does, however, still have a mechanism whereby a foreclosure may be pursued judicially in the rare instance there is not a deed of trust or if the lender simply chooses to proceed judicially in lieu of foreclosing on the deed of trust. In some cases the lender may realize a financial advantage by going to court, so homeowners who are served with a lawsuit instead of a Notice of Trustee’s Sale should consult with an attorney as soon as possible.

To effect a non-judicial foreclosure in Arizona, the lender must appoint a Trustee, who is the person or entity that is legally entitled to sell the property in a Trustee’s Sale. The Trustee’s first action is to record a Notice of Trustee’s Sale in the county recorder’s office, which is a legal notice identifying the precise time and date, as well as the location, when the home will be sold. Arizona law requires that the Notice of Trustee’s Sale must be recorded at least 90 days before the sale date. The Notice of Trustee’s Sale must also be published in an appropriate newspaper and copies must be delivered to the homeowner and other interested parties.

General principles of Arizona contract law simply require the existence of an offer, acceptance, consideration, and sufficient specificity of the terms in order to have an enforceable contract. This is true whether or not the parties write out the terms and/or sign a written document. This is not the case when the contract concerns the sale of real property. There, the Statute of Frauds as codified in Arizona (ARS 44-101(6)) demands that contracts for the sale of real property be written and signed in order to be enforceable.

It is important to note, however, that the Arizona courts have consistently held that only the signature of the “party to be charged” is required. In other words, the contract must be signed by the party against whom enforcement is sought but does not necessarily have to be signed by the charging party. For example, a seller of real estate who never signed the sales contract may successfully maintain an action against a buyer who did sign the contract.

The parties to an Arizona real estate contract should also remember that any amendments to the contract must also be written and signed to be enforceable. Because of the requirements of the Statute of Frauds, parties buying or selling real estate in Arizona are advised to demand written confirmation of all the terms and conditions of the real estate transaction. Frequently, agents and brokers may make representations and assurances to buyers and sellers and suggest that a written modification is unnecessary. Buyers and sellers should avoid the temptation to rely upon such assurances and ensure that all important matters are reduced to writing and signed by the other party.

Unfortunately, many Arizona real estate contracts are not written and/or signed and one or more parties find themselves with a need to seek relief from another party. If you find yourself facing such a situation you should consult with an experienced Arizona real estate lawyer as soon as possible to determine whether an exception to the Statute of Frauds might apply, or if some other legal recourse is available.