It is a basic right of every American to be notified of legal proceedings against him or her. This is an essential element of our constitution’s “due process” clause. The principal must be extended to all individuals who have rights to the property being foreclosed if their rights to the property will be negatively effected. Due process provisions must be given to those persons in both judicial and non-judicial foreclosures. State law cannot excuse such notice from being provided because such notice is guaranteed to every American by the U.S. Constitution, therefore, State may abrogate that right.

What is adequate or sufficient notice? To answer this question, the purpose of notice must be examined. That purpose is to put knowledge into the notified person’s mind. The purpose is not to give every person effected by a foreclosure perfect knowledge of every nuance of foreclosure law. No, its purpose is much more minimal. Although individual States may add what it believes must be in the notices used in that state, the bare minimum is that a foreclosure sale is to occur on a certain date (non-judicial foreclosure) or that a lawsuit to foreclose (judicial foreclosure) has been filed. This is sufficient information to defend oneself in a judicial foreclosure or file a lawsuit to enjoin a non-judicial foreclosure, (Regardless of some State laws saying you cannot enjoin non-judicial foreclosures, this right is probably protected by the U.S. Constitution and cannot be abridged.)

Does this mean that persons who don’t understand English have not been given notice if they are handed a paper with these minimal matters but they do not understand them? Probably not. The U.S. Supreme Court will probably never declare that proper notice is notice in every interested person’s primary language- even when the notifier knows that. Quite simply, the Court will just not go that far. Implicitly, English is our official language and those who do not understand must ask others to help them or flat lose, (This is why those who refuse to read or accept written notice are also considered notified.) Similar problems arise with deceased persons, infants and incompetents. (their resolution is too lengthy a discussion for here).

The best notice is actual knowledge. If an interested party has actual knowledge from a reliable source of a foreclosure, even though he or she has not received any written notice, that individual has the proper notice. Nonetheless, few people interested in a foreclosure will admit “actual knowledge” if there is no proof that he or she was served with a written notice. Consequently, the most fundamental and crucial part of any foreclosure is PROOF of notice to every effected person-regardless of the type of foreclosure.

In a judicial foreclosure, a summons and complaint is served on all involved parties (the Defendants) by a process server or sheriff who files with the court an affidavit of that service. This proof of notice is virtually irrefutable. Many states permit “substituted” service (i.e., service on a regular resident of a defendant’s home) as young as 14 years old. Eventually the U.S. Supreme Court will rule on the adequacy of this notice. Outcome-unknown.

If these types of service are not possible, the U.S. Supreme Court has decreed that you may give notice in any manner that might reasonably and really notify any interested person. Although some States have taken this literally, most States the only alternative is publication, usually joined to a mailing requirement. Such service is acceptable to the U.S. Supreme Court if the interested party truly cannot be located.

In non-judicial foreclosures the typical method of notice is by only mail; usually, regular and certified. Such notice is probably sufficient for the U.S. Supreme Court. Nonetheless, if an interested party denies that he received notice by either certified (“Undeliverable”) or regular mail, this author lives in great trepidation of proving “notice”. The U.S. Mail Service makes it virtually impossible to subpoena mail carriers. The best proof of service in this context is the non-returned regular mail. Anyone can refuse such mail (as many will not sign for certified mail), but few know they can. Consequently, the non-return of regular mail carries the implication of receipt or legal notification.

In conclusion, it is apparent that you can never give too much notice. Pragmatically, be certain you tell your attorney of all places your debtors can be found. If you don’t, and the foreclosure is voided because you did not give him an address you had in file at which “notice” should have been given, the fault will be yours.