Statute of Limitations for Foreclosure on a Deed of Trust
A statute of limitations establishes the time frame within which a legal claim can be brought, including foreclosure actions. The duration of the statute of limitations for foreclosure on a deed of trust varies depending on the jurisdiction.
Duration
In most states, the statute of limitations for foreclosure on a deed of trust typically ranges from three to six years (Nolo, 2024). However, some states may have a longer time period (Upsolve, 2021).
Commencement of the Limitations Period
The statute of limitations for foreclosure generally begins running when the homeowner ceases making mortgage payments (Nolo, 2024). In some cases, it may also start when the loan becomes due or when the lender accelerates the loan due to the borrower’s default (Nolo, 2024).
State-Specific Variations
Some states have specific statutes of limitations for foreclosure, while others may apply the statute of limitations for enforcing a security interest in land (Justia, n.d.). The length of the limitations period can vary significantly among states, ranging from six years to ten or twenty years, or even shorter or longer (Nolo, 2024).
Affirmative Defense
The statute of limitations is an affirmative defense to foreclosure, meaning that the borrower must raise this defense before a judge (Nolo, 2024). It is generally easier to raise this defense in a judicial foreclosure than in a nonjudicial one (Nolo, 2024).
Restarting the Limitations Period
Certain actions, such as making a payment or entering into a repayment plan, may reset the statute of limitations (Nolo, 2024). Additionally, if the lender stops the foreclosure and then restarts the case, it must do so within the statute-of-limitations period (Nolo, 2024).
References
- Justia. (n.d.). The Statute of Limitations Defense Under Foreclosure Law. Retrieved from https://www.justia.com/foreclosure/defenses-to-foreclosure/statute-of-limitations/
- Nolo. (2024). The Statute of Limitations in Foreclosure Actions. Retrieved from https://www.nolo.com/legal-encyclopedia/the-statute-limitations-foreclosure-actions.html
- Upsolve. (2021). Understanding Foreclosure Statutes of Limitations. Retrieved from https://upsolve.org/learn/foreclosure-statute-limitations/
FAQs
What is the statute of limitations for foreclosure on a deed of trust?
**Answer:** The statute of limitations for foreclosure on a deed of trust varies by state, but typically ranges from three to six years.
When does the statute of limitations start running?
**Answer:** The statute of limitations generally starts running when the homeowner stops making mortgage payments.
What are some actions that can restart the statute of limitations?
**Answer:** Making a payment, entering into a repayment plan, or the lender stopping and then restarting the foreclosure process can restart the statute of limitations.
Is the statute of limitations an affirmative defense?
**Answer:** Yes, the statute of limitations is an affirmative defense, meaning that the borrower must raise it before a judge.
What is the difference between a judicial and nonjudicial foreclosure?
**Answer:** A judicial foreclosure requires a court order, while a nonjudicial foreclosure does not. It is generally easier to raise the statute of limitations defense in a judicial foreclosure.
What should I do if I believe the statute of limitations has expired on my foreclosure?
**Answer:** You should contact an attorney to discuss your options.
Can I still be foreclosed on if the statute of limitations has expired?
**Answer:** No, if the statute of limitations has expired, the lender cannot foreclose on your home.
What are some other defenses to foreclosure?
**Answer:** Other defenses to foreclosure may include:
* The lender violated the terms of the mortgage
* The foreclosure is being pursued in bad faith
* The homeowner is in bankruptcy