Nolo was born in 1971 as a publisher of self-help legal books. Guided by the motto “law for all,” our attorney authors and editors have been explaining the law to everyday people ever since. Learn more about our history and our editorial standards.
Each article that we publish has been written or reviewed by one of our editors, who together have over 100 years of experience practicing law. We strive to keep our information current as laws change. Learn more about our editorial standards.
If you take out a mortgage loan in a state that allows nonjudicial foreclosures, you'll likely sign a deed of trust or a mortgage. This document probably has a power of sale clause. A "power of sale" clause gives the trustee or another party, like an attorney, the right to sell the home through an out-of-court process if you stop making payments. Most states require that the foreclosing party (called "the lender" in this article) serve one or more notices to the borrower before holding a foreclosure sale. In a nonjudicial foreclosure, borrowers sometimes receive a Notice of Default and a Notice of Sale, depending on state law. If the lender fails to comply with the procedural notice requirements under state law, you might have a foreclosure defense.
Depending on state law, a nonjudicial foreclosure process sometimes begins when a Notice of Default (NOD) is recorded at the county recorder's office. The NOD serves as public notice that the borrower is in default.
The NOD often contains:
If the borrower doesn't "cure" the default by bringing the payments up to date, including late charges and foreclosure fees, by the deadline given in the notice, the trustee might (again, depending on state law) then prepare and file a Notice of Sale for the property.
Is a Notice of Default the Same Thing as a Breach Letter?Sometimes, a mortgage or deed of trust will refer to a breach letter requirement as a "notice of default." People in the foreclosure business also sometimes call a breach letter a "notice of default." However, some state foreclosure laws require a separate "notice of default" (a legal notice), which must be recorded in the land records. So, this terminology can be confusing. This article discusses the type of notice of default that must be recorded in the county records, not the letter borrowers get before a foreclosure begins, telling them they're behind in payments (in default).
Most state foreclosure laws, judicial and nonjudicial, require that the lender serve a notice of the foreclosure sale date on the borrower. State laws also usually require the lender to publish the sale date, typically in a local newspaper.
The Notice of Sale (NOS) generally states:
The NOS might be recorded in the county land records, mailed to the borrower, published in a newspaper of general circulation in the county where the home is located, and posted on the property and in a public place.
While you might get both a Notice of Default and a Notice of Sale as part of the nonjudicial foreclosure process, foreclosure procedures and the documents you'll receive vary depending on what state you live in.
For an overview of the foreclosure laws in your state, click on the link to your state in our Summary of State Foreclosure Laws article.
Often, state law requires the lender to send the borrower the required foreclosure notices by mail. State law might require the servicer (on behalf of the lender) to send the notice in a particular way, such as by certified mail and first-class mail. Generally, in most states, it is presumed that you received the notice if the lender can prove that it mailed a properly addressed notice, such as with postal records or a certified mail receipt.
But if the lender can only produce a copy of a notice—but not proof of mailing—that failure might lead a court to believe that the lender didn't actually mail the notice. If the lender fails to mail a required notice, this failure could provide a strong defense against foreclosure.
Whether sending an electronic notice, such as by email, is legal depends on applicable federal laws, such as the federal E-Sign Act (applicable when a lender seeks to satisfy a requirement for a written notice with an electronic record) and on state laws. For example, suppose a state statute requires the lender to send a particular foreclosure notice by a specific mail-delivery method, like certified mail. In that case, the servicer must send the notice through the postal service, not electronically.
As of January 1, 2023, the standard Fannie Mae and Freddie Mac security instruments (mortgages and deeds of trust) say that unless another delivery method is required by applicable law, the lender may provide notices to the borrower by email or other electronic communication. But the federal E-Sign Act requires foreclosure notices to be in writing (mailed). So, if you sign a mortgage or deed of trust with this language, a foreclosure notice served electronically wouldn't be valid, assuming your state's laws require the notice to be delivered in writing. (Even if you consent to receiving electronic notices, the E-Sign Act doesn't allow electronic records to replace written foreclosure notices.)
However, the E-Sign Act doesn't prohibit states from enacting laws authorizing the use of electronic notices in foreclosures. This area of law is complicated. Talk to a lawyer to find out what communications (if any) may be sent to you electronically during a foreclosure.
Should I Get Notices By Email If My Mortgage or Deed of Trust Allows It?Again, the standard Fannie Mae and Freddie Mac mortgage and deed of trust forms say that, if agreed to, the lender may give notices to you electronically, such as by email (unless the law requires another delivery method). Getting notices from your lender electronically has upsides and downsides. While it's convenient to get notices by email, if an important message goes to your junk folder, you might miss learning critical information, such as you're delinquent on the loan. This method of delivery can also be an issue if you don't regularly check your email.
If you don't agree to receive notices electronically, the servicer must send them through the mail. Should you choose this delivery method, you'll need to open and review any communications or notices you receive in the mail from your servicer. Don't just toss letters from the servicer in the garbage without reading them.
The most common grounds for challenging a foreclosure because of a defective notice are claiming that the lender failed to:
The lender's failure to send a required foreclosure notice typically prevents the continuation of the foreclosure process. But you'll have to raise this issue in court.
Even if your lender served you a particular foreclosure notice, a court might find the notice invalid for some reason. Most courts require lenders to strictly comply with foreclosure statutes and contractual requirements for foreclosure notices, especially in nonjudicial foreclosures, because of the absence of court oversight.
Courts have found notices of default and notices of sale invalid when they failed to correctly identify the information that state law requires (such as the lender or another party that the law requires to be designated in the notice.) Notices sent that violate state timing requirements have also been declared invalid.
The terms of your mortgage loan documents might set additional requirements for a notice of default or notice of sale beyond those in your state's statutes. The lender's failure to comply with these contractual terms might provide you with a defense against a foreclosure.
In most cases, you must raise a defense of noncompliance with notice requirements in court before the foreclosure is complete. If the foreclosure sale has already happened, you might be limited to monetary damages.
Still, whether you can have a foreclosure sale set aside depends on the facts and the laws in your state. You might have to show significant irregularities in the foreclosure, other flaws in the process, or that you suffered some harm because of the defective notice.
If you're facing a foreclosure and want to learn the specific procedures and what notices are required in your state, as well as about your rights during the process and whether you have any potential defenses to the foreclosure, talk to a local foreclosure attorney as early in the process as possible.