If I financed a small home for someone and they have not made a payment in almost a year, what do I need to foreclose?

Though I have a contract and hold the mortgage I was told I could not foreclose because I do not have a note for the property.

Asked on August 25, 2011 South Carolina

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you have a mortgage (or trust deed) recorded on the property where it is security for some loan, the recorded mortgage (or trust deed) as a matter of law is evidence of some loan in that it is a lien of record.

You mention that you have a "contract" for a small home that you financed for someone. Does this "contract" have specific terms concerning the finance that you did that essentially set forth the amount loaned, the term of the loan, interest rate and monthly payments? If so, whether or not your "contract" is not designated as a promissory note is not an issue if its terms essentially are those of one, it is a promissory note for all intents and purposes forming the basis for the recorded mortgage.

If you have not been paid on your loan for over a year, you need to go down to a title insurance/escrow company in the area where you live and see if it can assist you on foreclosing on your loan secured by the mortgage.

There is a good chance that your "contract" in reality is a promissory note.

Good luck.


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