Foreclosure and
Receivership
Process
(Non-Residential/State Courts)
Arizona | California | Colorado | Delaware | Georgia | Maryland
Minnesota | Nevada | New Jersey | New York | Pennsylvania
South Dakota | Utah | Virginia | Washington, D.C. | Wisconsin
Note: e following information is general in nature and addresses some of the
most common issues and is not intended to be a substitute for consultation with an
attorney. Other considerations may be relevant based upon the facts of a particular
transaction and an attorney should be consulted. e distribution of this material is
not intended to create, and shall not create, an attorney-client relationship.
Information as of April 2020 | © Ballard Spahr LLP
Foreclosure and
Receivership Process
(Non-Residential/State Courts)
Arizona | California | Colorado | Delaware | Georgia | Maryland | Minnesota
Nevada | New Jersey | New York | Pennsylvania | South Dakota | Utah | Virginia
Washington, D.C. | Wisconsin
ARIZONA – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: 91 days
Trustee’s Sale Guarantee (TSG): Obtained from a title insurance company.
e TSG premium is based upon the unpaid principal balance of the loan.
Reinstatement Rights: e trustor and certain other parties may reinstate the
DOT by curing all defaults (monetary and non-monetary) by 5 p.m. on the last
business day before the sale.
Pre-Sale Notice Requirement: e Notice of Sale (NOS) identies the real
property by address, legal description, and tax parcel number, and sets the date,
time, and location of the sale. e NOS is recorded in each county where the
real property is located and gets mailed, along with a statement of breach, to
the trustor, beneciary, and other parties with an interest in the property or
who have requested notice. e NOS is also published in a newspaper of general
circulation and posted on the property and at the courthouse. e sale may be
postponed for successive periods of up to 90 days without need to record a new
NOS or repeat the pre-sale notice requirements.
Sale Procedure: e property is sold at public auction to the highest cash
bidder. e beneciary may credit bid up to the full amount due under the loan
documents, but a lower opening bid is strongly advisable. Payment in full is due
from the winning bidder by 5 p.m. Mountain Time on the rst business day
following the sale.
Acquisition of Title: After the sale and payment of bid, the trustee will deliver
a trustee’s deed to the winning bidder within seven business days. If the trustee’s
deed is properly recorded within 15 days after the date of the sale, the trustee’s sale
is deemed perfected at the appointed date and time of the sale. Arizona does not
have a real property transfer tax.
Redemption: Not available (except for IRS).
Deciency Judgment: Any action for a permitted deciency judgment must be
brought within 90 days of the sale.
CONTACT
Dean C. Waldt
602.798.5480
waldtd@ballardspahr.com
Craig Solomon Ganz
602.798.5427
ganzc@ballardspahr.com
Brian Schulman
602.798.5407
schulmanb@ballardspahr.com
ARIZONA – RECEIVERSHIP PROCESS
Time Frame: Approximately two to four weeks (ordinary course and uncontested).
In extreme situations, a receiver may be appointed without notice to the borrower.
Common Grounds: e lender has statutory rights to appoint a receiver. e
loan documents may augment authorization and scope of permitted powers and
duties of the receiver.
Qualications: ere are no express statutory qualication requirements.
e receiver may be an individual or an entity.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-
judicial foreclosure in order to seek the appointment of a receiver.
Appointment Order: ere is no standard court form; generally the form of the
order is proposed by lender’s counsel. e order should be broad enough to address
common issues, but balanced with lender approval rights for major actions. e
order may permit the sale of the property with court approval.
Reporting Requirements: e order typically requires the receiver to le
an initial inventory with the court and deliver monthly reports to the borrower
and lender.
Finances: e receiver will be paid through the income generated by the
property and by the lender to the extent that income from the property is
insucient. Most orders require that leases, contracts, and larger expenditures be
approved by the lender, and direct the receiver to remit excess cash ow to service
the debt. e receiver may accept lender advances, which may be added to the
secured indebtedness.
Ability of Receiver to Sell the Property: If the order permits, and upon
lender consent, the receiver may market and sell the property. Court approval
is required upon motion served upon the borrower and other interested parties.
Borrower consent is preferable but not always required by the court or title
insurance underwriter. ere are no express statutes or case law permitting
or prohibiting receivership sales. Title insurance has generally been available,
though some title companies may require expiration of the borrower’s right to
appeal in order to issue coverage.
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must request discharge and may be
required to le a nal report and accounting.
CONTACT
Dean C. Waldt
602.798.5480
waldtd@ballardspahr.com
Craig Solomon Ganz
602.798.5427
ganzc@ballardspahr.com
Brian Schulman
602.798.5407
schulmanb@ballardspahr.com
CALIFORNIA – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: Approximately 120 days for nonresidential properties; however, recent
Executive Orders from the Governor and emergency rules enacted by the California
Judicial Council in response to the COVID-19 pandemic may cause delays.
Initial Notice Requirement: Notice of Default and Election to Sell (NOD) is
recorded in the county where the property is located. e NOD may also contain
a notice of acceleration of the debt secured by the DOT. e NOD is recorded
and mailed to the borrower, any guarantor, and other parties with an interest in
the property or who have requested notice. Parties entitled to notice are set forth
in a trustee’s sale guarantee (TSG) obtained from a title insurance company. e
TSG premium is based on the unpaid principal balance of the loan. For residential
properties, the lender must rst contact the borrower and undertake a foreclosure
avoidance assessment. At least 30 days must elapse after the initial contact for the
foreclosure avoidance assessment before the NOD may be recorded.
Reinstatement Rights: e borrower, any guarantor, and certain other parties
may cure the default (except a maturity default) up to ve business days before the
sale date (or any postponed sale date).
Pre-Sale Notice Requirement: Notice of Sale (NOS) may be recorded three
months after the recording of the NOD. e NOS sets the sale date, time, and
location, and the legal description of the property to be sold by the trustee. e
NOS is recorded and mailed to the borrower, any guarantor, and other parties
with an interest in the property or who have requested notice, and is published in a
newspaper of general circulation and posted in three public locations. e sale may
not occur any earlier than twenty-one days after the NOS is recorded, and may be
postponed three times before a new NOS must be recorded.
Sale Procedure: e property is sold at public auction to the highest cash bidder.
e beneciary may credit bid up to full amount due under the loan documents.
Payment is due at the time of sale.
Acquisition of Title: After the sale and payment of bid, the trustee will deliver a
trustee’s deed to the winning bidder. Normally, there is no real property transfer
tax due. e deed is to be recorded within 30 days of the trustee’s sale.
Redemption: Not available (except for IRS).
Deciency Judgment: No deciency judgment in non-judicial foreclosure or
foreclosure on purchase money obligation.
CONTACTS
Siobhan M. O’Donnell
424.204.4341
odonnells@ballardspahr.com
Craig Solomon Ganz
424.204.4352
ganzc@ballardspahr.com
Brian D. Huben
424.204.4353
hubenb@ballardspahr.com
CALIFORNIA – RECEIVERSHIP PROCESS
Time Frame: Approximately six to 10 weeks (ordinary course); however, recent
Executive Orders from the Governor and emergency rules enacted by the
California Judicial Council in response to the COVID-19 pandemic may cause
delays. If applicable circumstances exist, an expedited hearing may be requested
and, in extreme situations, without notice to the borrower.
Common Grounds: Default in performance of obligations under the loan
documents. California courts will enforce an appointment clause set forth in the
loan documents and under statute (e.g., environmental contamination of property).
Qualications: ere are no express statutory qualication requirements.
e receiver may be an individual or an entity, but may not be a party or an
attorney of a party interested in the action, or related to any judge of the court.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-
judicial foreclosure in order to seek the appointment of a receiver, although it is
common to do so.
Appointment Order: Court orders should be tailored to be broad enough to
address common issues, but balanced with lender approval rights for major
actions (may be achieved by stipulation). Order may permit the sale of the
property with court approval.
Reporting Requirements: Appointment order will require the receiver to le an
initial inventory of all property within the receivership estate (generally within
30 days of appointment) and a report with the court, with periodic (generally
monthly) updates.
Finances: e receiver will be paid through the income generated by the property.
Most orders require larger expenditures, leases, and other contracts to be approved by
the lender, and require the receiver to remit excess cash ow to service the debt. e
receiver may accept lender advances and should consider obtaining separate counsel.
Ability of Receiver to Sell the Property: If the appointment order permits
and upon lender consent, the receiver may market and sell the property. Court
approval is required upon motion served on the borrower and other interested
parties. Borrower consent is preferable, but not always required by the court or
title insurance underwriter. ere are no express statutes permitting or prohibiting
receivership sales; however, at least one California court invalidated the receiver’s
sale authority per an order issued by a prior judge in the same court. Title
insurance is generally available, but some title companies may require expiration of
borrower’s right to appeal in order to issue coverage.
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must le a nal report and
accounting and request discharge.
CONTACTS
Siobhan M. O’Donnell
424.204.4341
odonnells@ballardspahr.com
Craig Solomon Ganz
424.204.4352
ganzc@ballardspahr.com
Brian D. Huben
424.204.4353
hubenb@ballardspahr.com
COLORADO – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: 145-160 days
Public Trustee’s Sale Guarantee (TSG): Obtained from a title insurance
company. e TSG premium is based on the unpaid principal balance of the loan.
Reinstatement Rights: e grantor of the DOT and certain other parties may
reinstate the DOT by curing all defaults (monetary and non-monetary) no later
than two business days prior to the sale, provided required notice of intent to cure
has been delivered at least 16 days prior to the scheduled sale date.
Pre-Sale Notice Requirement: Foreclosures are commenced by providing the
public trustee with a Notice of Election and Demand, which the public trustee
uses to create a Combined Notice. e Combined Notice sets the sale date, time,
and location, and includes the legal description of the property. e Notice of
Election and Demand is recorded and the Combined Notice is mailed to parties
with an interest in the property. e Combined Notice is also published in a
newspaper of general circulation.
Sale Procedure: e property is sold at public auction to the highest cash
bidder. e beneciary may credit bid up to the full amount due under the loan
documents, but any bid from the beneciary should be for at the lesser of the
amount due or the estimated fair market value of the property. Payment in full
is due from the winning bidder on the sale date and if not paid, the next highest
bidder is awarded the property (subject to the same payment requirement).
Acquisition of Title: After the sale and payment of bid, the public trustee will
deliver a certicate of purchase to the high bidder, which is recorded and holds
the same lien priority in the property as the deed of trust that has been foreclosed.
After the redemption period, title to the property vests automatically in the holder
of the certicate and a conrmation deed will be issued.
Redemption: Only junior lienholders have a post-sale right to redeem the
property, which may be exercised if a notice of intent to redeem is led. Filing a
notice of intent to redeem does not impose an obligation on the lienholder to in
fact redeem. A junior lienholder must le a notice of intent to redeem in order to
share in any excess proceeds of the sale.
Deciency Judgment: A deciency action may be brought at any time within the
standard statute of limitations period. In the deciency action, the lender’s failure
to bid at least the fair market value of the property may be raised as a defense to
liability (but not to the validity of the underlying foreclosure).
CONTACTS
Alicia B. Clark
303.299.7341
clarka@ballardspahr.com
Patrick G. Compton
303.454.0521
comptonp@ballardspahr.com
COLORADO – RECEIVERSHIP PROCESS
Time Frame: If ex parte (without notice to borrower), one to two weeks.
Otherwise, four to ve weeks depending on the court’s calendar.
Common Grounds: e lender has a statutory right to appointment of a receiver
if a foreclosure has been commenced and the lender can demonstrate a threat
of waste. In addition, courts typically enforce a lender’s contractual right to
appointment under the terms of the deed of trust.
Qualications: ere are no express statutory qualication requirements.
e receiver may be an individual or an entity; however the receiver should be an
independent third party (as the receiver is an ocer of the court rather than an
agent of the lender).
Foreclosure Not Necessary: Typically, it is not necessary to commence a judicial
or non-judicial foreclosure in order to seek the appointment of a receiver (unless
the lender’s sole basis is statutory).
Appointment Order: ere is no standard court form; order proposed by lender’s
counsel. e order should be broad enough to address common issues, but
balanced with lender approval rights for major actions. Whether the order may
permit the sale of the property is unresolved and hotly contested by borrowers.
Reporting Requirements: Appointment order typically requires the receiver to
le monthly or quarterly reports with the court, with copies to the lender and
borrower (if the borrower has appeared), and with a nal report being a condition
to discharge of the receiver.
Finances: e receiver will be paid through the income generated by the property
and by the lender to the extent that income from the property is insucient.
Most orders require larger expenditures, leases, and other contracts to be
approved by the lender and/or the court, and require the receiver to remit excess
cash ow to service the debt. e receiver may accept lender advances (known as
receivership certicates).
Ability of Receiver to Sell the Property: ere is no statutory or judicial
prohibition on a receiver selling property. Whether such power will be granted
or recognized is up to the individual judge; however, the exercise of such power
has been the basis of several successful borrower challenges. It is more likely that
the receiver will be empowered to market and sell interests in the property to the
extent the collateral is comprised of real property “inventory” (e.g., individual
condominium units or subdivided lots within development projects).
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must le a nal report and
accounting and request discharge. A successful foreclosure sale will not
automatically discharge the receiver.
CONTACTS
Alicia B. Clark
303.299.7341
clarka@ballardspahr.com
Patrick G. Compton
303.454.0521
comptonp@ballardspahr.com
DELAWARE – FORECLOSURE PROCESS
Security Interest: Mortgage
Time Frame: Timing varies depending on the forum and circumstances. An
uncontested foreclosure generally takes six months to complete. A contested
foreclosure can take 12-18 months (or longer in New Castle County) to complete.
Reinstatement Rights: Following acceleration, there is no right to reinstatement.
Initiation of Foreclosure Case: An action to foreclose is commenced by ling a
complaint with the Superior Court in the county in which the property is located.
e complaint must be served on the borrower, who has 20 days to respond.
Pre-Sale Notice Requirement: In addition to serving the complaint on the
borrower, within 10 days of ling the complaint, a notice of the foreclosure action
must be posted at the property and served by certied mail upon all tenants and
junior lien holders. Further, after judgment is entered, a notice of the scheduled
foreclosure auction, including the date, time, and location, must be posted at the
property and served upon all tenants and junior lien holders.
Sale Procedure: e property is sold by the sheri at a public auction to the
highest cash bidder. e mortgage lender/judgment holder may credit bid up to
the full amount of its judgment.
Post-Sale Procedure: e sheri will execute and record a deed transferring title
to the successful bidder within two to four months after the sale.
Acquisition of Title: Legal title to the property is transferred to the successful
bidder via the sheri’s deed, subject to payment of the sheri’s fees. Transfers
by the sheri to a bona de mortgage lender in connection with a mortgage
foreclosure are exempt from state and county transfer taxes.
Redemption: Not available.
Deciency Judgment: A deciency action may be brought at any time within the
statute of limitations period applicable to suits on promissory notes. Suits may be
commenced on the note before, during, or after foreclosure.
CONTACT
Matthew G. Summers
302.252.4428
summersm@ballardspahr.com
DELAWARE – RECEIVERSHIP PROCESS
Time Frame: Ordinary course is 60-90 days; in cases involving actual waste or
emergent health and safety issues, within a month.
Common Grounds: ere is Chancery Court authority holding that a default by
a borrower and consent in the loan documents to appointment of a receiver upon
default is sucient. However, the Chancery Court may consider equitable defenses
even where the mortgage contains express consent to appointment of a receiver.
Qualications: ere are no express statutory qualications or requirements.
e receiver may be an individual or an entity. e receiver is proposed by the
petitioning lender.
Foreclosure Not Necessary: It is not necessary to commence a foreclosure in
order to seek appointment of a receiver.
Appointment Order: ere is no standard court form, and the order is proposed
by lender’s counsel. e order should be broad enough to address common issues
but balanced with lender approval rights for major actions.
Reporting Requirements: e order typically requires the receiver to le monthly
reports and serve those reports on the borrower and lender.
Finances: e receiver will be paid through income generated by the property
and by the lender to the extent that income from the property is not sucient.
Most orders require that leases, contracts, and larger expenditures be approved
by the lender.
Ability of Receiver to Sell Property: e ability of the receiver to sell the
property is uncertain in Delaware, even with consent of the borrower. At
a minimum, court approval is required after ling of a motion and serving
the borrower and other interested parties. Title insurers may be reluctant to
underwrite a receivership sale.
Discharge: Upon foreclosure or disposition of the property, the receiver must
request discharge and usually will be required to le a nal report and accounting.
CONTACT
Matthew G. Summers
302.252.4428
summersm@ballardspahr.com
GEORGIA – FORECLOSURE PROCESS
Security Instrument: Deed to Secure Debt (Security Deed)
Time Frame: Approximately 45-60 days for non-judicial foreclosures. Foreclosure
sales held on the rst Tuesday of each month.
Reinstatement Rights: No statutory right of reinstatement if the balance has been
accelerated by maturity or default.
Initiation of a Foreclosure Case: If recorded loan documents include a power
of sale and a power of attorney to act on behalf of the borrower in the event of
foreclosure, the lender may initiate a non-judicial foreclosure by providing written
notice to the borrower followed by publishing an advertisement of the sale. If the
loan documents do not give the lender the power of sale, the lender must initiate a
judicial foreclosure.
Pre-Sale Notice Requirement: Notice of the initiation of foreclosure
proceedings—which includes the name, address, and telephone number of the
individual or entity having authority to negotiate, amend, and modify the terms
of the security deed—shall be given to the borrower by the secured creditor at
least 30 days prior to the proposed foreclosure sale. In addition, an advertisement
containing a full and complete description of the property to be sold, the name
of the grantor, the current holder of the security deed, the time and place of the
proposed sale, and reference to the power of sale according to the terms of the
security deed shall be published in the legal organ (ocial media outlet) of the
county in which the property is located once a week for four consecutive weeks
preceding the sale date. e fourth and nal advertisement cannot appear during
the same week as the foreclosure sale.
Sale Procedure: e property is sold at public auction to the highest cash bidder
on the steps of the county courthouse.
Post-Sale Procedure: Within 90 days of a foreclosure sale, all deeds under power
must be recorded by the holder of a deed to secure debt with the clerk of the
Superior Court of the county in which the foreclosed property is located. Also,
if the lender is seeking a deciency, there are additional steps (see Deciency
Judgment below).
Acquisition of Title: e parties involved execute a deed under power, which is
recorded as set forth immediately above.
Redemption: Not available.
Deciency Judgment: e lender can pursue a deciency judgment if the
property sells at the foreclosure sale for at least its fair market value as determined
by a current appraisal. To obtain a deciency judgment, the lender must, within 30
days after the sale, report the sale to the judge of the Superior Court of the county
in which the property is located, and seek a conrmation order and approval.
CONTACTS
Stefanie H. Jackman
678.420.9490
jackmans@ballardspahr.com
Laura L. Seidel
678.420.9312
seidell@ballardspahr.com
GEORGIA – RECEIVERSHIP PROCESS
Time Frame: Approximately 45-60 days, depending on when the judge
schedules a hearing.
Common Grounds: When property is in litigation and the rights of either or both
parties cannot otherwise be fully protected, or when there is no one to properly
and eciently manage the property.
Qualications: e receiver is an individual appointed as an ocer of the court
and must be disinterested and impartial. A receiver may be required to post a bond
conditioned on the faithful discharge of his or her duties. If a bond is required, the
judge will x the amount and determine the suciency of the security.
Foreclosure Not Necessary: It is not necessary to commence a judicial or
non-judicial foreclosure in order to seek the appointment of a receiver.
Appointment Order: ere is no standard court form. e order should be
broad enough to address common issues, but balanced with lender approval
rights for major actions.
Reporting Requirements: None specied by statute; appointment orders may
include some reporting requirements.
Finances: e receiver is usually paid through income generated by the property.
If the income is insucient, the court has discretion to determine upon whom
costs should fall, and generally those costs are shared among parties that initiate or
voluntarily join in the receivership proceedings.
Ability of Receiver to Sell the Property: e receiver may market and sell the
property only if authorized to do so in the appointment order. Otherwise, the
receiver has no authority to dispose of property in its possession. Moreover, the
court may not confer upon the receiver the power to sell property before a trial on
the merits. Any sale of the property is not nal until conrmed by the court.
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must le a nal report and
accounting and request discharge.
CONTACTS
Stefanie H. Jackman
678.420.9490
jackmans@ballardspahr.com
Laura L. Seidel
678.420.9312
seidell@ballardspahr.com
MARYLAND – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT) or Indemnity Deed of Trust (IDOT)
Time Frame: Approximately 150 days
Reinstatement Rights: Following acceleration of the balance (by maturity or upon default),
there is no right to reinstatement.
Initiation of a Foreclosure Case: A commercial foreclosure case is initiated in the name
of the substitute trustees for the beneciary in the circuit court for the county in which
the property is located by the ling of an Order to Docket Foreclosure, accompanied by
a certied copy of the DOT or IDOT, a sworn statement of debt, and adavits of the
substitute trustees identifying the holder of the loan and conrming that the property is non-
residential. e Order to Docket Foreclosure and other papers are not served on the borrower.
Pre-Sale Notice Requirement: e date and terms of sale must be advertised in a newspaper
of general circulation in the county in which the property is located in each of three successive
weeks preceding the sale. e foreclosure advertisement becomes the contract of sale following
the auction. Notice of the sale, together with the text of the foreclosure advertisement, must
be sent by regular and certied mail, return receipt requested, to local taxing authorities
between 30 and 15 days before the sale, and to the property owner and any person holding a
subordinate interest in the property between 30 and 10 days prior to the sale.
Sale Procedure: e property is sold at public auction to the highest bidder. e beneciary
may credit bid up to the full amount due under the loan documents. e foreclosure sale
transfers equitable title, risk of loss, and a right to prots to the successful bidder.
Post-Sale Procedure: After the sale, the substitute trustees must le a report of sale disclosing
the purchaser and the amount of the successful bid; certication of the publication of the
foreclosure advertisement; adavits of the purchaser and auctioneer; and a proposed notice of
sale. e court approves and issues the notice of sale, xing the dates by which the notice of
sale must be published and objections to ratication of the sale may be led. e notice of sale
must also be published in three successive weeks. e grounds for objection to ratication are
generally limited to procedural failings on the part of the substitute trustees. If objections are
brought, they are decided by the court in due course. If no objections are brought, following
certication of publication of the notice, the case is forwarded to a judge for review for
compliance with the procedural requirements and entry of an Order of Ratication.
Acquisition of Title: e foreclosure advertisement typically provides that settlement on
the foreclosure sale will occur within 10 days after the entry of an order of ratication.
e substitute trustees deliver a deed to the successful bidder. Maryland and most local
jurisdictions impose recordation and transfer taxes on the deed, determined by the amount
of the successful bid.
Redemption: Not available (except IRS).
Deciency Judgment: An action for a deciency judgment is independent of the
foreclosure proceeding and subject to Maryland’s general statutes of limitations, three years
from default on a contract not under seal, 12 years from default on a contract under seal.
CONTACTS
Glenn J. Figurski
202.661.2236
gurskig@ballardspahr.com
Timothy F. McCormack
410.528.5680
mccormackt@ballardspahr.com
MARYLAND – RECEIVERSHIP PROCESS
Time Frame: Ordinary course is 45-60 days. In cases of actual waste, health and safety
emergencies, or fraudulent conveyance, it is three to four days.
Common Grounds: Default by the borrower and an appointment of receiver is necessary
to protect the property from waste, loss, transfer, dissipation, or impairment or the owner
of the property has agreed to the appointment of a receiver before or after default.
Qualications: e receiver may be an individual or an entity. e receiver is selected
by the petitioning lender. e receiver must verify under oath that the proposed receiver
is not an aliate of a party, does not have nancial interest in the outcome of the action,
does not have debtor-creditor relationship with any party, has not been a director, ocer
or employee of the owner in the past two years, is not a convicted felon, and has not been
found liable for fraud, breach of duciary duty or similar misconduct.
Foreclosure Not Necessary: It is not necessary to commence a foreclosure proceeding in
order to seek the appointment of a receiver.
Appointment Order: ere is no standard court form, but certain powers and
responsibilities are enumerated in the Mayland Commercial Receivership Act. e order
is proposed by lender’s counsel. e order should incorporate the powers and duties set
forth in the act and set forth other powers to address common issues, balanced with lender
approval rights for major actions.
Reporting Requirements: Appointment order typically requires that the receiver le
monthly reports with the court and deliver copies to the borrower and the lender.
Finances: e receiver will be paid through the income generated by the property and
by the lender to the extent that the income from the property is insucient. Most orders
require that expenditures above a relatively low threshold (typically $5,000), leases, and
other contracts be approved by the lender and that the receiver remit excess cash ow to
service the debt. e order typically provides that the receiver may accept lender advances,
which may be added to the secured indebtedness.
Ability of Receiver to Sell the Property: If the appointment order permits, and upon
lender consent, the receiver may market and sell the property. Court approval is required
upon motion served on the borrower and other interested parties. e remedy is rarely
exercised because the Maryland foreclosure process is relatively simple, there are no
express statutes or case law permitting or prohibiting receivership sales, and title insurance
underwriters are often reluctant to insure title, absent borrower consent to the private sale.
Discharge: Upon the foreclosure sale or other disposition of the property or satisfaction of
the underlying loan, the receiver must request discharge and may be required to le a nal
report and accounting.
CONTACTS
Glenn J. Figurski
202.661.2236
gurskig@ballardspahr.com
Timothy F. McCormack
410.528.5680
mccormackt@ballardspahr.com
MINNESOTA – FORECLOSURE PROCESS
Security Instrument: Mortgage
Time Frame: Varies by foreclosure method chosen. Voluntary foreclosure, two
months to sale. Foreclosure by advertisement, three months to sale. Uncontested
foreclosure by action, four months to sale. Contested foreclosure by action, 12 to 16
months to sale.
Reinstatement Rights: Reinstatement by mortgagor available any time before the
sale upon payment of default amounts due plus costs, disbursements and attorney’s
fees as provided by statute.
Foreclosure Options: Voluntary foreclosure: short timeline to sale; non-homestead
and non-agricultural property only; no deciency judgment; short redemption
period. Foreclosure by advertisement: short timeline to sale; all types of real estate;
mortgage must contain a power of sale; no formal court proceedings required; no
deciency judgment; six or 12 month redemption period. Foreclosure by action:
best option where there are title issues or priority disputes; all types of real estate;
deciency judgment available; six or 12 month redemption period.
Farm Foreclosure: Minnesota has adopted the Farm-Lender Mediation Act. If the
land constitutes agricultural property, it is in agricultural production within the
meaning of the Act, the farmer must be oered the opportunity for mediation prior
to commencement of foreclosure proceedings.
Pre-Sale Notice Requirement: Statutory notice requirements vary with foreclosure
procedure chosen. Publication required when proceeding with a voluntary
foreclosure or a foreclosure by advertisement.
Sale Procedure: e property is sold by the sheri at public auction to the highest
cash bidder. Mortgagee may credit bid. Foreclosure by advertisement: sheri
executes a Certicate of Sale to be recorded within 20 days of sale. Foreclosure by
action: sheri report of sale must be approved by the court; if the sale is approved,
sheri executes Certicate of Sale to be recorded within 20 days.
Redemption: Redemption periods start running from the date of sheri’s sale for
voluntary foreclosure and foreclosure by advertisement, and from date of order
conrming sale for foreclosure by action. Five weeks if judicial action completed for
certain abandoned properties. Two months under voluntary foreclosure procedure.
Six months is standard and applies to most foreclosure procedures. 12 months if
balance due was less than 2/3 of original purchase price; property greater than 40
acres; or agricultural property greater than 10 acres.
Deciency Judgment: Available only when proceeding by judicial action.
CONTACTS
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
MINNESOTA – RECEIVERSHIP PROCESS
Time Frame: Approximately 30-60 days depending on the availability of the court. In
emergency situations, a receiver can be appointed ex parte (without notice to the borrower).
Common Grounds: Minnesota has two types of receivership. A limited receivership
and a general receivership. A receivership based upon the enforcement of rents or
leases, or the foreclosure of a mortgage lien, judgment lien, mechanic’s lien, or other
lien is a limited receivership and is primarily designed for the purpose of safekeeping
property in foreclosure. A limited receiver may be appointed before entry of
judgment if there is demonstrated risk of loss or material impairment. A general
receivership places all of the assets of the debtor into receivership to be liquidated
and the proceeds distributed to creditors.
Qualications: e receiver may be an individual, limited liability company,
limited liability partnership, or other entities recognized by state law, and such
receiver is appointed as an ocer of the court and must be independent to the
parties and the underlying dispute. To be qualied, the person must have knowledge
and experience sucient to perform the duties of a receiver and have the nancial
resources to post any required bond.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-
judicial foreclosure in order to seek the appointment of a receiver.
Appointment Order: ere is no standard court form; but the order must contain
a description of the receivership property with particularity appropriate to the
circumstances. e order is proposed by lender’s counsel and should be broad
enough to address common issues, but balanced with lender approval rights for
major actions and the payment of receivership fees and expenses.
Reporting Requirements: Appointment orders typically require that the receiver
le an initial inventory or schedule with the court, including a description of all
liens encumbering the receivership property and estimated value of the receivership
property and may instruct the receiver to deliver periodic reports to the court, the
respondent, the lender, and other interested parties.
Finances: Receivers are paid from the income generated by the receivership property
in the same manner as other administration expenses, and can be paid without
separate order. However, any interim payments are subject to approval by the court
in connection with the receiver’s nal report, and interested parties may object to
such report. In certain cases, lenders may pay receivership fees and expenses.
Ability of Receiver to Sell the Property: e receiver may market and sell
receivership property if permitted by court order following notice to interested
parties and a hearing. A receiver in a general receivership can seek and gain court
approval to sell receivership property free and clear of all liens, similar to a § 363 sale
in federal bankruptcy proceedings.
Discharge: Upon the foreclosure sale or other disposition of the property or
satisfaction of the underlying debt, the receiver typically les a nal report and
accounting and requests a termination of the receivership and a discharge of the
receiver of its duties to the court and under the receivership order.
CONTACTS
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
NEVADA – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: Approximately 120 days
Initial Notice Requirement: Notice of Default and Election to Sell (NOD).
e NOD may also contain a notice of acceleration of the debt secured by the
DOT. e NOD is recorded and mailed to the borrower, any guarantor, and
other parties with an interest in the property or who have requested notice. Parties
entitled to notice are set forth in a trustee’s sale guarantee (TSG) obtained from
a title insurance company. e TSG premium is based on the unpaid principal
balance of the loan.
Reinstatement Rights: e borrower, any guarantor, and certain other parties
may cure the default within 35 days of recording and mailing the NOD.
Pre-Sale Notice Requirement: Notice of Sale (NOS) may be recorded three
months after the recording of the NOD. e NOS sets the sale date, time, and
location, and the legal description of the property to be sold by the trustee. e
NOS is recorded and mailed to the borrower, any guarantor, and other parties
with an interest in the property or who have requested notice, and is published in
a newspaper of general circulation and posted in a public location. e sale may be
postponed three times before a new NOS must be recorded.
Sale Procedure: e property is sold at public auction to the highest cash bidder.
e beneciary may credit bid up to full amount due under the loan documents.
Payment is due at the time of sale.
Acquisition of Title: After the sale and payment of bid, the trustee will deliver a
trustee’s deed upon sale to the winning bidder. Real property transfer tax is due at
the time of recording the deed, even where the property reverts to the beneciary.
e deed is to be recorded within 30 days of the sale.
Redemption: Not available (except for IRS).
Deciency Judgment: Any action for a deciency judgment must be brought
within six months of the foreclosure sale.
CONTACTS
Bruce F. Johnson
702.868.7546
johnsonbf@ballardspahr.com
Abran Vigil
702.868.7523
vigila@ballardspahr.com
NEVADA – RECEIVERSHIP PROCESS
Time Frame: Approximately 30 days (ordinary course). An expedited hearing may
be requested if warranted by circumstances. In extreme situations, a receiver may
be appointed without notice to the borrower.
Common Grounds: Default in performance of obligations under the loan
documents or commencement of foreclosure. Nevada law will enforce an
appointment clause set forth in the loan documents. Other statutory rights
exist as well and Nevada is one of a few states that has enacted the Uniform
Commercial Real Estate Receivership Act (the “Act”).
Qualications: Under the Act, ere are no express statutory qualication
requirements but rules on the same are to be promulgated at a later date.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-
judicial foreclosure to seek the appointment of a receiver. Doing so does invoke a
statutory right, however.
Appointment Order: ere is no standard court form. e order proposed by
the lender should be broad enough to address common issues, but balanced with
lender approval rights for major actions, and will have to comply with certain
requirements under the Act.
Reporting Requirements: e court will require the receiver to le an initial
inventory and report, with periodic updates, usually every 30 days or as otherwise
required by the court consistent with the Act.
Finances: e receiver is paid through income generated by the property, and
by the lender if the income from the property is insucient. Orders can require
lender approval for large expenditures, leases, and other contracts, and require
the receiver to remit excess cash ow to service the debt. e receiver may accept
lender advances.
Ability of Receiver to Sell the Property: As provided by the Act, and if the
appointment order permits, the receiver may market and sell the property. Court
approval is required upon motion served on the borrower and other interested
parties. Borrower consent is preferable, but not always required by the court or title
insurance underwriter.
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must le a nal report and
accounting and request discharge. Discharge alone does not terminate receivership,
and a separate request should be made to dismiss the receivership case.
CONTACTS
Bruce F. Johnson
702.868.7546
johnsonbf@ballardspahr.com
Abran Vigil
702.868.7523
vigila@ballardspahr.com
NEW JERSEY – FORECLOSURE PROCESS
Security Instrument: Mortgage
Time Frame: Approximately eight to 12 months if uncontested; longer if contested.
Reinstatement Rights: Following acceleration of the balance, there is no right to
reinstatement but mortgage may be redeemed as noted below under Redemption.
Initiation of a Foreclosure Case: e lender must send the notice of intention to foreclose
at least 30 days, but not more than 180 days, before ling the foreclosure complaint. All
foreclosure complaints are led in the foreclosure unit in Trenton and must be served on all
defendants. Uncontested matters remain before the foreclosure unit. If contested, the case
is transferred to a judge in the county where the property is located.
Pre-Sale Notice Requirement: Notice of the sale must be posted at the sheri’s
oce in the county where the property is located and at the property and advertised
by the sheri in at least two newspapers selected by the sheri once a week for four
consecutive weeks preceding the sale. e last publication must be not more than eight
days before the sale. Notice of the sale must be sent to all parties who have appeared in
the action (including junior lien holders) and the record owner of the property at the
commencement of the action at least 10 days before the sale.
Sale Procedure: e property is sold at public auction to the highest bidder. Any person
may bid at the sale, including the borrower and the foreclosing mortgagee with a credit
bid. ere is a deposit requirement for the successful bidder. Each vicinage will adopt sale
conditions, which include the successful bidder’s obligation to remit the balance of the
bid, and those become the contractual terms that bind the successful bidder.
Post-Sale Procedure: After the sale, the sheri or selling ocer must le a report of
the details of the sale. No conrmation of the sale is required if it was conducted by
the sheri. If the sale was conducted by an ocer other than the sheri, the ocer
must apply to the court for conrmation of the sale. If objections are brought, they are
scheduled for hearing by the court in due course.
Acquisition of Title: e person conducting the sale must deliver a deed to the
successful bidder not later than two weeks after the sale (but not earlier than 10 days
after the sale because of the statutory redemption period), provided that the successful
bidder has paid the balance of the purchase price. e deed relates back to the date of the
sale. e successful bidder must record the deed. Transfer taxes are required to be paid
on the sheri’s deed and are typically based on the amount of the accepted bid.
Redemption: e borrower may redeem the mortgage at any time within 10 days after
the sale or when a deed is delivered, whichever is later.
Deciency Judgment: An action for a deciency judgment is independent of the
foreclosure proceeding, led in the Law Division, and subject to New Jersey’s general
statutes of limitations, six years from the date the cause of action arises. However, an
otherwise untimely deciency action will be deemed timely so long as the underlying
foreclosure action was timely and the deciency complaint is led within three months
after the foreclosure sale or conrmation of foreclosure sale.
CONTACTS
Jerey S. Beenstock
856.761.3417
beenstock@ballardspahr.com
William P. Reiley
856.761.3465
reileyw@ballardspahr.com
NEW JERSEY – RECEIVERSHIP PROCESS
Time Frame: A receivership application is led as a motion in a foreclosure action.
e motion must be led at least 16 days in advance of the return date and motions
are typically heard by the Chancery judge in the vicinage where the property is located
either every Friday or every other Friday. Because all foreclosure actions originate in the
foreclosure unit in Trenton, if the motion to appoint a receiver is the rst application
after the ling of the complaint, it may take additional time to transfer the case to the
local vicinage and the motion may be delayed.
Common Grounds: Discretionary with the trial judge. Courts consider the following:
default by the borrower and an agreement in the loan documents that the lender may
seek or is entitled to a receiver upon default; constructive waste in the form of the proper
use of rents by the property owner following a default; whether the borrower has paid
real estate taxes and/or insurance premiums; the ability of the property to generate
sucient revenue to pay the debt; and actual waste or other emergency circumstances.
Qualications: No statutory requirements. e receiver may be an individual or an
entity. e receiver is recommended by the petitioning lender and selected by the trial
judge hearing the motion. e receiver must post a bond prior to appointment.
Foreclosure Necessary: A foreclosure complaint must be led before seeking the
appointment of a receiver. e application for a receiver is led as a motion in the
foreclosure action.
Appointment Order: No standard court form. e order is proposed by lender’s counsel.
e order will typically allow the receiver to collect all rents accruing after appointment,
commence actions to protect and preserve the property, enter into leases for the property,
pay real estate taxes and other charges accruing against the property, and make repairs
necessary to preserve the property. It should be broad enough to address common issues,
balanced with lender approval rights for major actions.
Reporting Requirements: Appointment orders typically require the receiver to le and
serve reports.
Finances: e receiver is paid through the income generated by the property and by
the lender to the extent that the income from the property is insucient. e order
typically provides that the receiver may accept lender advances, which may be added to
the secured indebtedness.
Ability of Receiver to Sell the Property: Most appointment orders do not permit the
sale of the property. When they do, court approval is required upon motion served on the
borrower and other interested parties. e remedy is rarely exercised. Because there are
no expressed statutes or case law permitting or prohibiting receivership sales, New Jersey
judges are generally not inclined to allow a receiver to sell the property, and title insurance
underwriters are often reluctant to insure title, absent borrower consent to the private sale.
Discharge: Upon the foreclosure sale or other disposition of the property or satisfaction
of the underlying loan, a judicial receivership does not automatically terminate. A receiver
must le a motion seeking an order requesting a discharge and canceling the surety bond.
CONTACTS
Jerey S. Beenstock
856.761.3417
beenstock@ballardspahr.com
William P. Reiley
856.761.3465
reileyw@ballardspahr.com
NEW YORK – FORECLOSURE PROCESS
Security Instrument: Mortgage
Time Frame: Timing can vary greatly. A contested foreclosure can take approximately 12-18 months
and an uncontested foreclosure can take approximately four to six months.
Reinstatement Rights: Following acceleration of indebtedness, there is no right to reinstatement.
Initiation of a Foreclosure Case: An action in mortgage foreclosure is commenced by ling a
summons and complaint together with a Notice of Pendency in the clerk’s oce of the county
where the property is located and the action will be heard at the Supreme Court level in such
county. e complaint should name the mortgagor and any other party that has a lien interest on
the property junior to the foreclosing mortgagee. Depending on how process is served, defendants
typically have 20-45 days to answer the complaint.
Pre-Sale Notice Requirement: e judge will sign a Judgment of Foreclosure and Sale, which sets
forth the amount due and owing on the loan and will specify where the sale will take place and
the newspaper in which the Notice of Sale (NOS) will be advertised. e NOS must be published
in the newspaper at least once per week for four consecutive weeks or twice a week for three
consecutive weeks before the sale, although the location of the property may aect the number of
times per week the notice must be published and the number of weeks. Typically the sale will be
required to take place somewhere between 21 and 35 days after the rst publication. A copy of the
NOS must also be served on all defendants who requested it or are entitled by law to notice.
Sale Procedure: e foreclosing mortgagee will ask the court to appoint a referee who will
determine the amount of monies due and owing to the foreclosing mortgagee (the “Upset Price”).
e referee will prepare a report of the amount due, which is then submitted to the court and is
part of the Judgment of Foreclosure and Sale. A referee will be appointed by the court to conduct
the sale. Typically the referee who prepared the report will also conduct the sale. e property is
sold by the referee at a public auction. If the highest bid is less than the Upset Price, the foreclosing
mortgagee will take possession of the property.
Post-Sale Procedure: After the sale, the referee will deliver the deed to the successful bidder,
distribute the proceeds of the sale and le the Report of Sale with the county clerk within 30 days
after conveyance of the referee’s deed.
Acquisition of Title: Legal title to the property is transferred to the successful bidder by a referee’s
deed, subject to payment of sale fees and the bid price. Transfer taxes are due and payable upon
recordation of the referee’s deed.
Redemption: A mortgagor has the right to redeem at any time before the bidding commences at the
foreclosure sale. e right of redemption cannot be waived and all holders of junior liens may also
redeem at any point prior to the sale. ere is no right of redemption following the foreclosure sale.
Deciency Judgment: A foreclosing mortgagee may recover any deciency judgment from the maker
of a mortgage note or any guarantor by joining such parties as defendants in the foreclosure action
and moving for a deciency judgment within 90 days after the referee’s deed is conveyed. Failure
to comply with the foregoing bars any further action for deciency, but the court is to direct that
any monies remaining with a receiver, after payment of fees and expenses, be paid to the foreclosing
mortgagee to the extent of the deciency.
CONTACTS
Jerey S. Page
646.346.8016
pagej@ballardspahr.com
Raymond A. Quaglia
215.864.8530
quagliaballardspahr.com
Michael Pollack
646.346.8030
pollackmv@ballardspahr.com
NEW YORK – RECEIVERSHIP PROCESS
Time Frame: A receivership application is led as a motion in a foreclosure action. e motion may
be led any time before the nal judgment; however, the recommended time to le is immediately
following the ling of the summons and complaint and Notice of Pendency. Timing depends on the
approach taken. If the foreclosing mortgagee moves by notice of motion or on an ex parte basis (as
described below), the appointment process may take in excess of 30 days. If the foreclosing mortgagee
proceeds by order to show cause, a receiver may be appointed in approximately ve to 10 days.
Common Grounds: Under New York law, a receiver can be appointed in one of two ways. e rst way,
the “Receiver Clause” is the preferred method. is approach may only be used if the mortgage contains
language to the eect of: “e holder of this mortgage, in an action to foreclose, shall be entitled to the
appointment of a receiver.” Such language allows for a mortgage holder to make an ex parte motion to
appoint a receiver. Although inclusion of this language does not provide complete assurance that a court will
grant the mortgage holder’s motion, it provides strong support. In addition, courts will also consider factors
such as whether protection by more benign means is possible or whether the appointment of a receiver
would help to clarify and monitor the use of the subject premises during the pendency of the action.
In the event “Receiver Clause” language is not included in the mortgage, a party with an interest in the
property may move for the appointment of a receiver on notice and by providing clear and convincing
evidence that the property is in danger of being materially injured or destroyed and that a receiver is
necessary to protect parties’ interests in the property.
Qualications: A receiver must be an individual. Subject to certain statutory restrictions as to who
may serve as a receiver, the Chief Administrator of Courts sets the qualications for receivers and those
individuals who wish to serve and satisfy such qualications are placed on a list which judges use to
select a receiver. Judges select the receiver in their discretion, although they may allow proposals from
the party making the motion for appointment. Receivers must le a certicate of compliance and an
oath and must also post a bond.
Foreclosure Necessary: A foreclosure complaint must be led before seeking the appointment of a
receiver. e application for a receiver is led as a motion in the foreclosure action.
Appointment Order: No standard court form, although some courts have a sample form that may be
used. e order must include information about the date and nature of the appointment and must direct
the owner or lessee to turn over all security deposits to the receiver. e order will also require that the
receiver deposit all such deposits into an account set up for that purpose and will limit the ability of the
receiver to withdraw funds from the account. Typically the order will allow the receiver to collect rents
accruing after appointment and to commence actions to protect and preserve the property. e order
may also provide guidelines for when the receiver may enter into leases or set rents.
Reporting Requirements: Receivers must le an accounting with the court at least once per year.
Appointment orders typically require the receiver to le and serve reports, and receivers are subject to
certain statutory reporting requirements in connection with compensation.
Finances: e court will set the commission of a receiver which need not be paid from the income from
the property. Typically the receiver will receive commissions not exceeding 5 percent of the greater of
the sums received by the receiver, or the sums disbursed by the receiver, as the court allows.
Ability of Receiver to Sell the Property: A receiver may not sell the property in New York.
Discharge: After a nal judgment is rendered in the foreclosure action, unless otherwise directed by
the court, the receiver shall request a discharge. e order entered by the court authorizing the receiver’s
discharge will include approval of the receiver’s accounting and proposed distributions and will also
authorize the cancellation of the receiver’s bond.
CONTACTS
Jerey S. Page
646.346.8016
pagej@ballardspahr.com
Raymond A. Quaglia
215.864.8530
quagliaballardspahr.com
Michael Pollack
646.346.8030
pollackmv@ballardspahr.com
PENNSYLVANIA – FORECLOSURE PROCESS
Security Instrument: Mortgage
Time Frame: Timing varies substantially depending on the forum and
circumstances. An uncontested foreclosure generally takes four to eight months to
complete. A contested foreclosure can take 12-15 months to complete.
Reinstatement Rights: Following acceleration of the balance (by maturity or
upon default) there is no right to reinstatement.
Initiation of a Foreclosure Case: An action in mortgage foreclosure is started by
ling a complaint with the prothonotary (Court Clerk) in the Court of Common
Pleas in the appropriate county. e complaint must be served on the borrower,
who has 20 days from service to respond.
Pre-Sale Notice Requirement: A judgment in mortgage foreclosure is enforced by
writ of execution. Each sheri has various requirements to satisfy as a prerequisite
to sale. e notice of the sheri’s sale must be posted at the sheri’s department
and on the property at least 30 days before the sale date and must be published in
a local newspaper and a designated legal publication for three consecutive weeks
in advance of the sale. Statute requires the judgment holder to identify and notify
everyone with a judgment, mortgage, lien, or other interest in the property if such
interest is to be discharged by the sale.
Sale Procedure: e property is sold by the sheri at public auction to the highest
cash bidder. e judgment holder may credit bid up to the full amount of its
judgment. Bidding strategy usually depends in part upon considerations involving
the sheri’s fee structure and realty transfer taxes.
Post-Sale Procedure: e sheri will record and deliver a deed to the successful
bidder four to eight weeks after the sale.
Acquisition of Title: Legal title to the property is transferred to the successful
bidder via the sheri’s deed, subject to payment of the sheri’s fees and
Pennsylvania realty transfer taxes.
Redemption: Not available.
Deciency Judgment: Pennsylvania has a Deciency Judgment Act (DJA) that
applies if the judgment holder acquires the property at the sheri’s sale for an
amount less than the amount of the judgment and the judgment holder wishes
to pursue the borrower or any other responsible party (including a guarantor) for
the deciency. e DJA requires, among other things, that the judgment holder
petition the court to x the fair market value of the subject property within six
months of the delivery of the sheri’s deed. Absent the timely ling of such a
petition under the DJA, the sheri’s sale will be deemed to have satised the
judgment in full. e amount of the deciency recoverable by the judgment
creditor is equal to the judgment amount less the fair market value at the time of
the sheri’s sale.
CONTACTS
Dominic J. De Simone
215.864.8704
desimone@ballardspahr.com
Raymond A. Quaglia
215.864.8530
quaglia@ballardspahr.com
PENNSY LVA NI A – RECEIVERSHIP PROCESS
Time Frame: In the ordinary course, a petition for appointment of receiver will be
heard in four to eight weeks (depending on the county). In cases of actual waste or
other health and safety emergencies, a receivership petition can be heard in three
to four days.
Common Grounds: Courts can enforce a contractual provision for the
appointment of a receiver upon default but tend to require that the lender establish
independent equitable grounds, usually a showing of waste or mismanagement.
Borrower’s retention or diversion of cash ow alone is generally deemed insucient.
Qualications: No express statutory qualication requirements. e receiver may
be an individual or an entity. e receiver is proposed by the petitioning lender.
Foreclosure Necessary: A petition for appointment of receiver must be led as
part of a foreclosure proceeding.
Appointment Order: ere is no standard court form. e order is proposed by
lender’s counsel. e order should be broad enough to address common issues,
balanced with lender approval rights for major actions. e order usually does not
permit the sale of the property by the receiver absent borrower consent.
Reporting Requirements: e order usually requires the receiver to le monthly
reports with the court and deliver copies to the borrower and the lender.
Finances: e receiver will be paid by the lender and/or from the income
generated by the property. Most orders require that the receiver remit excess cash
ow to the lender to service the debt. e order usually allows the receiver to
accept lender advances, which may be added to the secured indebtedness.
Ability of Receiver to Sell the Property: Yes, if the borrower consents. e
appointment order may permit the receiver to market and sell the property. Court
approval for any sale is required upon motion. e remedy is virtually never
exercised absent borrower consent because (1) the courts are reluctant to authorize
the disposal of the subject property when the borrower is contesting the foreclosure
and/or the receivership, and (2) title insurance underwriters are reluctant to insure
title absent contemporaneous borrower consent to the private sale.
Discharge: Upon the foreclosure sale or other disposition of the property or
satisfaction of the underlying loan, the receiver can be discharged and may be
required to le a nal report and accounting.
CONTACTS
Dominic J. De Simone
215.864.8704
desimone@ballardspahr.com
Raymond A. Quaglia
215.864.8530
quaglia@ballardspahr.com
SOUTH DAKOTA – FORECLOSURE PROCESS
Security Instrument: Mortgage
Time Frame: Six to 16 months. Depends on length of redemption period and
whether foreclosure is contested.
Foreclosure Options: Foreclosure by action: best option where there are title
issues or priority disputes; if uncontested, judgment is entered with costs and
decree of sale. Foreclosure by advertisement: quickest way to a foreclosure sale;
mortgage must contain a power of sale on default provision and be properly
recorded; four weeks published notice of sale; 21 day written notice of sale;
mortgagor or other lien holder may demand foreclosure by action.
Nonjudicial Voluntary Foreclosure: Mortgagor and mortgagee may agree
in writing to statutory voluntary foreclosure. Mortgagor conveys property to
mortgagee and delivers immediate possession. Mortgagee waives any deciency.
Junior lienholders provided notice by certied mail and have 60 days to redeem. If
redeemed, mortgagee provides quit claim deed to junior lienholder.
Sale Procedure: By public auction at sheri’s sale to highest bidder. If
foreclosure by action, fair and reasonable bid required and mortgagee must seek
permission of the court to bid less than full amount of judgment debt. Sheri
provides certicate of sale to purchaser. Certicate of sale must be recorded
within 10 days after date of sale.
Sale in Parcels: Property must be sold in parcels if possible without injury to the
interests of the parties. Sale of only as many farms, tracts, or lots as necessary to
satisfy the amount due, with interest, costs, and expenses.
Deciency Judgment: Available upon application to the court when proceeding
by action or advertisement. Mortgagor credited for the fair and reasonable value of
the property sold.
Redemption: One year from date of sale. 180 days in case of statutory “short-term
redemption mortgage.” 60 days if property is determined to be abandoned.
Deed and Vesting of Interest: Upon the expiration of the time for redemption,
sheri provides a deed for the property to the purchaser. Title vests in purchaser
with the deed.
Crops: Mortgagor is entitled to the crops growing on the property as of the
expiration of the redemption period and has the right to enter the premises to
remove the crops after the issuance of the deed.
CONTACTS
Daniel R. Fritz
605.978.5205
fritzd@ballardspahr.com
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
SOUTH DAKOTA – RECEIVERSHIP PROCESS
Time Frame: Approximately 30-60 days depending on the availability of the
court. In emergency situations, a receiver can be appointed ex parte (without
notice to the borrower).
Common Grounds: A receiver may be appointed in a foreclosure action by the
lender if it appears that the property is in danger of being lost, removed, materially
injured, or that the conditions of the mortgage have not been performed and the
property is probably insucient to satisfy the mortgage debt.
Qualications: e receiver must be disinterested to the action/underlying debt
unless written consent of the parties is provided. Before appointment, a receiver
will be sworn in by the court to faithfully perform the receiver duties and required
to obtain one or more sureties by the court.
Foreclosure Not Necessary: It is not necessary to commence a foreclosure in
order to seek the appointment of a receiver, although it is common to do so.
Appointment Order: No standard court form. e order is proposed by lender’s
counsel and should be broad enough to address common issues, balanced with
lender approval rights for major actions and payment of receiver fees and expenses.
Reporting Requirements: Appointment orders typically require that the receiver
le an initial inventory or schedule with the court, including a description
of all liens encumbering the receivership property and estimated value of the
receivership property and may instruct the receiver to deliver periodic reports to
the court, the respondent, the lender, and other interested parties.
Finances: Receivers are paid from the income generated by the receivership
property in the same manner as other administration expenses, and can be
paid without separate order. However, any interim payments are subject
to approval by the court in connection with the receiver’s nal report, and
interested parties may object to such report. In certain cases, lenders may pay
receivership fees and expenses.
Ability of Receiver to Sell the Property: e receiver may only market and sell
the property if authorized to do so by Court order. Otherwise, the receiver has no
authority to dispose of receivership property.
Discharge: Upon the foreclosure or other disposition of the property, or
satisfaction of the underlying loan, the receiver must le a nal report and
accounting and request a discharge.
CONTACTS
Daniel R. Fritz
605.978.5205
fritzd@ballardspahr.com
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
UTAH – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: Approximately 120 days
Initial Notice Requirement: Notice of Default (NOD). e NOD is recorded and
mailed to those parties who have requested such notice, although it is advised to
notify all lienholders of record. If the borrower did not request notice, the NOD
must be mailed to the address of the subject property or posted on the subject
property. A trustee’s sale guarantee (TSG) can be obtained from a title insurance
company to obtain the names and addresses of parties entitled to notice and/or those
who have recorded liens against the property. e TSG premium is based on the
unpaid principal balance of the loan.
Reinstatement Rights: e borrower, any guarantor, and certain other parties may
cure the default within three months following recording of the NOD by paying the
amounts then due and owing.
Eligible Trustees: Active members of the Utah State Bar with an oce in Utah, a
depository institution as dened in Utah Code § 7-1-13, an insurance or title company
licensed and doing business in Utah, or a corporation authorized to conduct a trust
business under the laws of the State of Utah can act as a trustee to foreclose the lien of
a deed of trust.
Pre-Sale Notice Requirement: Notice of Sale (NOS) may be published and posted
three months after the recording of the NOD. e NOS sets the sale date, time, and
location, and includes the legal description of the property to be sold by the trustee.
e NOS is published at least once a week for three consecutive weeks in a newspaper
of general circulation, with the last publication at least 10 days but not more than 30
days before the scheduled sale date. Publication of the NOS is also required on a public
legal notice website for 30 days before the scheduled sale date. e NOS must also be
mailed to those parties who have requested such notice and posted at least 20 days before
the scheduled sale date in a conspicuous place on the subject property and at the oce
of the county recorder. ere is a form of NOS prescribed by statute. e sale may be
postponed by the trustee successively for up to 45 days without re-noticing the sale.
Sale Procedure: e trustor and/or assigner has the right to direct the order of sale if the
property/collateral consists of more than a single parcel. At the sale, the property is sold at
public auction to the highest bidder. e beneciary may credit bid, up to the full amount
due under the loan documents. Payment is due as directed by the trustee.
Acquisition of Title: After the sale and within the three business days following
payment of the bid amount, the trustee will deliver a trustee’s deed to the purchaser.
Utah does not have a real property transfer tax.
Redemption: Not available (except for IRS).
Deciency Judgment: Any action for a deciency judgment must be brought within
three months following the trustee’s sale.
CONTACT
Mark R. Gaylord
801.531.3070
gaylord@ballardspahr.com
Tyler M. Hawkins
801.531.3030
hawkinst@ballardspahr.com
UTAH – RECEIVERSHIP PROCESS
Time Frame: Approximately 30 days, if uncontested; up to 120 days if contested.
In extreme situations a receiver may be appointed quicker and without notice to the
borrower pursuant to a motion for temporary restraining order.
Common Grounds: A lender has a statutory right to seek the appointment of a
receiver to enforce an assignment of rents against a defaulting borrower. Otherwise,
Utah law permits the appointment of a receiver when property is at risk or may be
insucient to satisfy a judgment. Utah courts will enforce an appointment clause set
forth in the loan documents.
Qualications: e receiver is an individual appointed as an ocer of the court
and must be disinterested, impartial, and neutral. A receiver or the lender may also
be required to post a delity/surety bond approximating the value of the property
transferred into the receiver’s possession.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-judicial
foreclosure in order to seek appointment of a receiver.
Appointment Order: ere is no standard court form; the order is proposed by
lender’s counsel. e order should be broad enough to address common issues, but
balanced with lender approval rights for major actions. Utah law requires that after
entry of an appointment order, a receiver must take an oath to perform his or her
duties faithfully.
Reporting Requirements: Appointment orders typically require that the receiver
le an initial inventory with the court and deliver monthly reports to the borrower
and the lender.
Finances: Appointment orders generally provide that the receiver will be paid
through income generated by the property and by the lender to the extent that
income from the property is insucient. Most orders require larger expenditures,
leases, and other contracts to be approved by the lender. e receiver may accept
lender advances.
Ability of Receiver to Sell the Property: e receiver may market and
sell the property if so provided in the appointment order. Court approval is typically
required, following service of the motion on the borrower and other interested parties.
Discharge: Upon the foreclosure or other disposition of the property, or satisfaction
of the underlying loan, the receiver typically les a nal report and accounting and
requests discharge in accordance with the terms of the appointment order.
CONTACT
Mark R. Gaylord
801.531.3070
gaylord@ballardspahr.com
Melanie J. Vartabedian
801.517.6842
vartabedianm@ballardspahr.com
VIRGINIA – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: 30-45 days
Reinstatement Rights: ere is no right to reinstate the loan unless specically
provided for in the loan documents. Prior to the foreclosure sale, the borrower
has the right, after default and acceleration by the beneciary under the DOT, to
redeem the property by paying the full amount of the indebtedness.
Pre-Sale Notice Requirements: Written notice of the foreclosure sale must be
sent to the owners of the property and any subordinate lienholder who holds
a note secured by the DOT (recorded at least 30 days prior to the foreclosure
sale) encumbering the property at least 14 days prior to the sale. In addition, the
trustee must advertise the foreclosure sale in a newspaper of general circulation
in the city or county where the property is located. e trustee should follow
the advertisement requirements described in the DOT or, if the DOT is silent,
the trustee must advertise the foreclosure sale once a week for four weeks if
the property is located in a county. If the property is located in a city, the
advertisement must appear on ve dierent days, which may be consecutive days,
provided that in each instance the sale shall not be sooner than eight days after the
date of the rst advertisement or later than 30 days after the last advertisement.
Sale Procedure: e property is sold at a public auction to the highest cash
bidder. e beneciary under the DOT may credit bid up to the full amount
due under the loan documents, but due to transfer and recording taxes a lower
starting bid is generally advisable. Qualied bidders, other than such beneciary,
must post a deposit in an amount required by the trustee that cannot exceed
10 percent of the nal sales price.
Acquisition of Title: e winning bidder at the foreclosure sale typically has 30
days to close on the purchase of the property. e failure to close within 30 days
will lead to a forfeiture of the bidder’s deposit. e trustee will deliver a trustee’s
deed upon the closing of the sale. Virginia law requires the payment of both
transfer and recording taxes upon the recordation of the trustee’s deed.
Redemption: Not available (except for IRS).
Deciency Judgment: A deciency action may be brought at any time within the
applicable statute of limitations period.
CONTACTS
Constantinos G. Panagopoulos
202.661.2202
cgp@ballardspahr.com
Kelly M. Wrenn
202.661.2204
wrenn@ballardspahr.com
VIRGINIA – RECEIVERSHIP PROCESS
Time Frame: In the ordinary course, 21-90 days. In the case of fraud or waste, a
temporary receiver may be appointed immediately on an ex parte basis, similar to
a TRO.
Common Grounds: Receiver may be appointed where there is fraud, waste, or
mismanagement of a property, or if the loan documents have been violated and the
lender has suered and is continuing to suer damage as a result. Virginia courts
like to see more than a simple default on the loan documents, but some courts will
appoint a receiver based solely on a violation of the loan documents.
Qualications: No statutory qualications. e receiver usually must post a
bond. e selection of a receiver is within the court’s discretion, but courts will
generally appoint the receiver nominated by the lender.
Foreclosure Not Necessary: No foreclosure is necessary in conjunction with a
receiver.
Appointment Order: ere is no standard court form; order proposed by lender’s
counsel. e order should be broad enough to address common issues, but
balanced with lender approval rights for major actions. Order may permit sale of
the property by the receiver.
Reporting Requirements: Appointment orders typically require the receiver to
le an initial inventory and serve monthly reports. e receiver must prepare a list
of all creditors, which is used to notify them that a receiver has been appointed.
Finances: Appointment orders typically require the receiver to le an initial
inventory and serve monthly reports. e receiver must prepare a list of all
creditors, which is used to notify them that a receiver has been appointed. e
receiver must also le a nal accounting with the commissioner of accounts.
Ability of Receiver to Sell the Property: If the appointment order permits
and upon lender consent, the receiver may market and sell the property. Court
approval is required upon motion served on the borrower and other interested
parties. Borrower consent is preferable but not always required by the court or
title insurance underwriter. ere are no express statutes or case law permitting or
prohibiting receivership sales, but title insurance has generally been available.
Discharge: Upon foreclosure or other disposition of the property, or satisfaction
of the underlying loan, the receiver typically les a nal report and accounting
and requests discharge in accordance with the term of the appointment order.
Generally, either a consent order terminating the receivership is submitted or,
absent consent, a motion is presented to the court to terminate the receivership.
CONTACTS
Constantinos G. Panagopoulos
202.661.2202
cgp@ballardspahr.com
Kelly M. Wrenn
202.661.2204
wrenn@ballardspahr.com
WASHINGTON, D.C. – FORECLOSURE PROCESS
Security Instrument: Deed of Trust (DOT)
Time Frame: 30-45 days
Reinstatement Rights: ere is no right to reinstate the loan unless specically
provided for in the loan documents. Prior to the foreclosure sale, the borrower
has the right after default and acceleration by the beneciary under the DOT to
redeem the property by paying the full amount of the indebtedness.
Pre-Sale Notice Requirements: A notice of foreclosure sale is led with the
D.C. Recorder of Deeds at least 30 days prior to the scheduled sale date on a
form proscribed by the recorder’s oce. In addition, the notice of foreclosure
must be mailed to the borrower via certied mail at least 30 days prior to the
sale, and the practice is to also send a copy of the notice to any guarantors and
junior lienholders of record. In addition, it is customary to advertise the sale in
a newspaper of general circulation in D.C. a minimum of ve times on alternate
business days immediately prior to the sale.
Sale Procedure: e property is sold by an auctioneer at a public auction to the
highest cash bidder. e beneciary under the DOT may credit bid up to the full
amount due under the loan documents, but due to transfer and recording taxes
a lower starting bid is generally advisable. Qualied bidders, other than such
beneciary, must post a deposit in an amount required by the trustee that cannot
exceed 10 percent of the nal sale price.
Acquisition of Title: e winning bidder at the foreclosure sale typically has 30
days to close on the purchase of the property. e failure to close within 30 days
will lead to a forfeiture of the bidder’s deposit. e trustee will deliver a trustee’s
deed upon the closing of the sale. D.C. law requires the payment of both transfer
and recording taxes upon the recordation of the trustee’s deed.
Redemption: Not available (except for IRS).
Deciency Judgment: A deciency action may be brought at any time within the
applicable statute of limitations period.
CONTACTS
Glenn J. Figurski
202.661.2236
gurskig@ballardspahr.com
Kelly M. Wrenn
202.661.2204
wrenn@ballardspahr.com
WASHINGTON, D.C. – RECEIVERSHIP PROCESS
Time Frame: In the case of a genuine emergency, a receiver can be appointed
almost immediately, although a follow-up hearing will be scheduled to conrm the
appointment, similar to the procedure for obtaining a temporary restraining order
and preliminary injunction. Absent an emergency, the receiver can be appointed
one to four weeks from the ling of the petition to appoint.
Common Grounds: e appointment of a receiver is an equitable remedy that can
be granted “for good cause.” Generally, good cause consists of the default on a loan
where the loan documents provide for the appointment of receiver, or for fraud,
waste, and/or mismanagement of the property.
Qualications: e receiver may be an individual or an entity. Generally, the
lender proposes a receiver in the petition to appoint a receiver. ere are no
statutory qualications for a receiver, but the lender should generally move to
appoint someone who has experience managing the type of property at issue.
Foreclosure Not Necessary: It is not necessary to commence a judicial or non-
judicial foreclosure in order to seek the appointment of a receiver.
Reporting Requirements: Appointment orders typically require that the receiver
le an initial inventory with the court and deliver monthly reports to the borrower
and the lender.
Finances: e receiver will be paid through the income generated by the property
and by the lender to the extent that income from the property is insucient. e
measure of a reasonable fee is, by analogy, the amount the law allows others for the
performance of similar duties. Most orders require larger expenditures, leases, and
other contracts to be approved by the lender, and the receiver to remit cash ow to
service the debt. e receiver may accept lender advances, which may be added to
the secured indebtedness.
Ability of Receiver to Sell the Property: e process is to seek the court’s
permission, which can be sought in connection with the petition to appoint the
receiver by a separate motion. Courts will consider applications to sell property on
a case-by-case basis. Applications and orders to sell property should be modeled
on those typically submitted pursuant to sales of property under the Bankruptcy
Code. A determination should be made as to whether an exercise of a power of
sale or other foreclosure would be a better strategic option than a sale out of the
receivership estate, particularly for commercial property.
Discharge: e receiver shall not be dismissed except by order of the court.
Accordingly, a consent order or a motion is led when it is appropriate to
terminate a receivership.
CONTACTS
Glenn J. Figurski
202.661.2236
gurskig@ballardspahr.com
Kelly M. Wrenn
202.661.2204
wrenn@ballardspahr.com
WISCONSIN – FORECLOSURE PROCESS
Security Instrument: Mortgage
Foreclosure Procedure: All mortgage foreclosures proceed by judicial action.
Time Frame: Six to 18 months. Depends on length of redemption period and whether
action is contested.
Reinstatement Rights: Foreclosure action dismissed if principal, interest due and costs are
paid before judgment is entered.
Sale in Parcels: If the property can be sold in parcels without injury to the interests of the
parties, the judgment shall direct a sale in parcels, specifying them.
Redemption: In Wisconsin, the applicable redemption period runs before the property
can be sold by public auction at sheri’s sale. Redemption period commences on entry
of judgment. Shorter redemption periods for mortgages entered after April 27, 2016,
instances where deciency judgments are waived, and where property has been abandoned.
Owner-occupied residences and farms: 12 month redemption period before sheri’s sale;
six months if waiving deciency judgment; if mortgage entered after 4/27/2016, then six
month redemption period before sale; three months if waiving deciency. Commercial
and multi-family residential properties: six month redemption period before sheri’s sale;
three months if waiving deciency judgment. Abandoned properties: ve week redemption
period before sheri’s sale.
Redemption in Part: e mortgagor may redeem distinct lots or parcels of the property
which could be sold separately under the judgment.
Deciency Judgment: Available if demanded in the Complaint. If provided for in the
mortgage, mortgagee may waive judgment for any deciency with redemption period being
reduced accordingly.
Notice: Foreclosure action commenced with personal service of Summons and Complaint.
Posted and published notice of sheri’s sale as required by statute with length of minimum
notice dependent upon length of redemption period.
Sale procedure: e property is sold by the sheri at public auction to the highest cash
bidder. Mortgagee may credit bid. Sale must be conrmed by the court. Sheri prepares
and provides the clerk of court with a deed for the property. Upon conrmation of the
sale, the court transfers the deed to the register of deeds for recording. Title vests in the
purchaser upon conrmation of the sale.
CONTACTS
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
WISCONSIN – RECEIVERSHIP PROCESS
Time Frame: Approximately 30 to 90 days depending on the court’s availability.
Common Grounds: If the receivership relates to the preservation of real property pending
foreclosure, a receiver may be appointed when: the lender establishes an apparent right or
interest in the property, that the property is in the possession of the borrower, and that the
property or its rents and/or prots are in danger of being lost or materially impaired; on
any grounds agreed to by the lender and borrower in the mortgage; or by case law if waste
is being committed by the borrower. In a general insolvency receivership, the court may
appoint a receiver when an execution against a judgment debtor is returned unsatised or
when the borrower corporation has been dissolved or is insolvent or is in imminent danger
of insolvency or has forfeited its corporate rights.
Qualications: If the receivership relates to preservation of real property pending
foreclosure and the lender is supervised by the division of banking or the home loan
bank board, federal oce of thrift supervision, federal deposit insurance corporation,
or resolution trust corporation, the court shall appoint an ocer of such corporation as
receiver to act without compensation and to give such bond as the court requires. However,
lenders typically seek authority in the motion to retain a third-party property manager
to maintain the real property. If the receivership is a general insolvency receivership, then
there are no express statutory qualications or requirements. e receiver may be proposed
by the petitioning creditor.
Foreclosure Not Necessary: It is not necessary to commence a judicial foreclosure in order
to seek the appointment of a general insolvency receiver.
Appointment Order: If the receivership relates to preservation of real property pending
foreclosure, there is no standard court form. e order is typically proposed by lender’s
counsel and must clearly identify all receivership property, and should be broad enough
to address common issues, balanced with lender approval rights for major actions and
payment of receiver fees and expenses. In a general insolvency receivership, the order should
incorporate the specic powers and duties of the receiver set forth in the statute.
Reporting Requirements: ere are statutory reporting requirements for a general
insolvency receivership. In all other circumstances, the order typically requires the receiver
to le periodic reports and serve those reports on the borrower and lender.
Finances: If the receivership relates to preservation of real property pending foreclosure,
the receiver is not entitled to be paid if the receiver is an ocer of the lender. However, if
the receiver hires a property manager, the motion to hire the manager should include the
procedure for the property manager to be paid from the income generated by the property.
In a general insolvency receivership, the receiver is paid pursuant to statute.
Ability of the Receiver to Sell the Property: Under a general insolvency receivership, the
receiver may liquidate receivership property for the benet of creditors and distribute the
proceeds pursuant statute.
Discharge: If the receivership relates to preservation of real property pending foreclosure,
when the receiver seeks conrmation of the sheri’s sale of the property, a request to discharge
the receiver should be included, along with a nal report and accounting and the total amount
of funds to be delivered to the lender. In a general insolvency receivership, the receiver is
discharged per statute upon application to the court for a nal settlement of the account.
CONTACTS
Christopher R. Grote
612.371.3226
grotec@ballardspahr.com
William P. Wassweiler
612.371.3289
wassweilerw@ballardspahr.com
OUR OFFICE LOCATIONS
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Real Estate Finance and Capital Markets Group
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