California Foreclosures Legal Questions

If you walk away, the lender will eventually foreclose and it will hurt your credit. Additionally, the lender might sue you for a deficiency (the difference between what you owe and the value of the house at the foreclosure sale). You would be better off trying a short sale for less than the amount you owe and getting the lender to forgive any deficiency. I know some good realtors who can help you.... Read Answer

I don't understand what you mean by whether anything can be done. What do you want to do? Unless the note and deed of trust state otherwise, loans can be freely assigned. But I don't understand why you care whether the loan was assigned or to whom it was assigned. I don't know anything about SBA loans, but you have to determine whether yours is a recourse or nonrecourse loan. Recourse means the lender can sue you for the difference ("deficiency") between what the house sells for at auction and the amount of the principal balance of the loan. Nonrecourse means the lender's remedy is confined to taking possession of the property through foreclosure and you can't be sued for the balance. It is also unclear to me whether any deficiency that did exist was discharged in the bankruptcy. Where did you get the 10-year statute of limitations? Does the promissory note say that? Whatever the limitations period is, it would have started to run on the date you defaulted, not on the date you signed the note.... Read Answer

If the bank has not begun foreclosure proceedings, and you are still the record owners, you could move back in the home or rent it out. That is, of course, unless there is something to the contrary in the bankruptcy orders. You could also approach the bank about either a new loan on the home, or a short sale.... Read Answer

Your question does not provide enough information for a meaningful answer. The only thing I can say is that recent loan modification laws prohibit "dual tracking," which means one representative of the lender telling the home owner he is being considered for a modification while a second department pursues foreclosure.... Read Answer

"Equity of redemption" means the amount of the sale price over and above the amount needed to satisfy all liens, costs, attorney's fees and any other costs the lender can think of to pad the bill. In theory, you are entitled to the remaining equity. You can try talking to the lender yourself, but I fear you will probably need an attorney. An attorney can also advise you about the statute of limitations. But you should act immediately because the limitations period may expire soon.... Read Answer

The security instrument usually used to secure a home loan is a Deed of Trust. From your description, it sounds like what you and the seller have is a Land Contract. Under this arrangement, the seller holds the Grant Deed until the loan is paid. Did you and the seller sign a written contract? If so, you need to read it carefully to see if it includes a forfeiture clause. This is the part of the contract that states the procedure the seller must follow to retake possession of the property in the event of default. If your agreement was oral (not in writing), then it is probably invalid and unenforceable because of the Statute of Frauds, which requires all contracts concerning interests in real property to be in writing. But even if the contract is unenforceable, the seller can probably file a lawsuit to get the property back. In that event, the court could require him to refund all of the payments you have made. You really need to speak to a lawyer right away.... Read Answer

It is not clear what stage of probate and foreclosure you are in. How long ago did your mom die? Was there a proceeding filed in the Probate Court? If so, has the court already ordered the transfer of title to you? If the title has not yet been transferred, you have to determine whether the home loan is "underwater," that is, the remaining loan principal exceeds the price the house could be sold for. If it is, you should probably refuse the inheritance. If the loan has equity (value exceeds principal) and you want to keep the property, then you will have to make a deal with the lender to pay off the loan balance or, if the lender will agree, pay just the amount necessary to bring the monthly payments current and continue to make payments yourself.... Read Answer

A notice of motion tells you that a lawyer has filed a motion in a court. You might be referring to a Notice of Default, which is the beginning of a foreclosure proceeding. You have many chances to save your home if the foreclosure sale has not yet occurred. It takes at least 4 months from the Notice of Default until the sale can occur. If you are in Nevada, fill out the paperwork for a mediation which is available in all non-judicial foreclosures. Send in the $200 for the fee. Then get a good real estate lawyer to help you. You need to act fact, and I can help you find a good lawyer.... Read Answer

You don't describe your relationship with your sister. Is she okay with you living there as long as her loan is paid? Or does she want you out of the house? If you pay off the loan in full, your sister can't take the house by foreclosure. But if she is the sole owner and she wants the house, she can just file an unlawful detainer action to have you evicted.... Read Answer

It will be very difficult to accomplish without getting a senior supervisor with the lender involved. It will take persistence by you in getting to someone high enough who is authorized to make this kind of change to the loan-essentially taking him off it. The lender will likely require you to qualify for the loan on your own, without consideration of his income. If you won't be able to, you will be wasting your time.... Read Answer

You are correct, but you will likely need to get the lender to issue a re conveyance of the mortgage to get it off title (at least if your property is in CA), and if they refuse, you will need to file a quiet title lawsuit (for which you will need a lawyer). Also, check with a tax accountant familiar with debt forgiveness tax issues, as you may be able to avoid the tax liability on the phantom gain.... Read Answer

As far as I know, the bank took title to the property "subject to" the HOA bylaws so responsibility for payment goes with the title. The assignment of title to the bank should be a good defense to a lawsuit by the HOA. But it is best to avoid being sued in the first place. Have you spoken to the HOA about this? Have you sent them a copy of the assignment of title? It seems the association might be more interested in suing the bank for the unpaid dues rather than you because if they win, there would be no issue of being able to collect the judgment.... Read Answer