California Foreclosures Legal Questions

You should never stop paying your first mortgage in order to pay your second, your first mortgage is always your highest priority. Most likely your second mortgage will not move to foreclose, as the first mortgage would need to be paid off in the foreclosure sale and usually a house that has less value than the first mortgage, most houses in the United States are in the situation, because there will not be enough money in the foreclosure sale to satisfy the first mortgage and the second. Although if there's enough equity in your house, the second mortgage company does have the right to foreclose on your home to collect the debt. In this situation the use of a chapter 7 or chapter 13 bankruptcy is advisable. In either form of bankruptcy you may file a motion to remove the lien, if the first mortgage is approximately the value of what the home is worth now and the second mortgage interferes with your Homestead rights. If the motion is allowed, the second mortgage may be stripped and you will not have to pay it back.   I have responded to your inquiry according to the laws of Massachusetts, where my firm is located. Laws can vary significantly from state to state and cases tend to be rather fact-specific, so you are best served by consulting with a knowledgeable attorney in weighing your options. Email messages/Online Correspondence are akin to conversations and do not reflect the level of analysis applied to formal legal opinions. Email/Online responses do not form an attorney-client relationship.    Joseph F. Botelho, Esq. BOTELHO LAW GROUP Attorneys At Law http://fallriverbankruptcyattorney.com/ 901 Eastern Ave.  Unit 2 Fall River, MA 02723  Office:  888-269-0688 FAX:    877-475-8147... Read More

The description or ownership of property is not included in your credit agency reports. But if you are making mortgage payments, your loan and payment history should be there. The history shows how many months late your payments are. If a foreclosure is completed, that fact will also be reported. You might have to look carefully at the reports. The loan should be listed under the name of the lender. It is possible that the loan has been sold to a bank or other institution that you don't recognize. Also, the lender may be reporting to only one or two of the three credit reporting agencies, Experian, TransUnion, and Equifax, so you have to get copies of all three reports.... Read More

Here is a link to the State Bar's index of certified specialists. http://members.calbar.ca.gov/fal/MemberSearch/QuickSearch#legallink There is no certified specialty in real estate law, but you can choose Civil Trial Advocacy. Fill in your location and the search will find attorneys in your area. Second, your local county Bar Association may have a Lawyer Referral Program that will arrange a half-hour consultation with a real estate specialist for a nominal fee. Ask for someone with experience in foreclosure law. You should interview several lawyers before you choose.... Read More

Absent a written agreement, the broker has no remedy at law. Even if he could prove that you orally agreed to put him back on title or to partition the property with him, oral agreements concerning real property are unenforceable under the so called Statute of Frauds. And even if the broker could prove an enforceable contract, his remedy would be limited to money damages in the amount of the fair market value of his claimed share of the property. I suppose the broker could file some sort of proceeding in equity (e.g., reformation). But if he cannot prove that he contributed money to the acquisition of the property, then he cannot prevail. However, you should not rely entirely on the opinion of a LawQA attorney who has not heard all the facts and has not reviewed relevant documents. I urge you to seek an in person consultation an attorney specializing in real estate law. Your county bar association may have a lawyer referral program that will arrange a consultation with an attorney in whatever specialty you need for a nominal fee.... Read More

It is unclear why you are using the word "landlord." If you purchased a property, the person you bought it from has nothing to foreclose unless you financed your purchase totally or partially with a loan from the seller ("seller financed" purchase). So, did you sign a promissory note to the seller that is secured by a deed of trust (mortgage) on the property? If so, then the seller could foreclose if you failed to make your payment, just like a bank or other secured creditor. But if the seller signed off on the Settlement Statement and received the full amount designated to him in the Statement, then he probably has no claim against you. However, I cannot give you a definite answer since I cannot see the purchase/sale/escrow documents. You would be wise to obtain a consultation from a real estate attorney, even if you have to pay for it. Your local County Bar Association may have a Lawyer Referral Service that will set up a 30 minute appointment with a specialist in your matter for a nominal fee. It would be money well spent.... Read More

The HAMP program doesn't have anything to do with what the lender can use your payments for. That is entirely controlled by the terms of the promissory note and deed of trust. Generally, these contracts provide that payments will first be applied to outstanding late fees and then to regular payments. Don't ever believe what an employee of your lender tells you unless they put it in writing.... Read More

I don't see any legal reason for not being allowed to sell the loan. The original lender is going to have to answer for any fraud that is discovered regardless of who owns the loan. You should not rely on the bank's internal investigation. You should report the matter to the authorities. Here is a link to a web site with information: http://www.occ.gov/topics/consumer-protection/fraud-resources/index-fraud-resources.html In any case, if the original lender is engaging in this type of fraud, you are probably better off with your loan being held by a different lender. The terms of your loan do not change. Banks frequently resell their customers loans and there is generally no downside to the customer.... Read More

There are any number of questions that need to be answered before giving any advice. What are the types of liens? Is the property homesteaded? Will there be sufficient funding from the sale to retire the liens. how old are the liens? Are they potentially time barred? If you are really interested in the property, you might consider contacting the lienors and purchasing their position. Just a couple of thoughts.... Read More

You are experiencing an all too typical problem. Many lenders do not seem to be acting in good faith to process loan modification applications. New York state has enacted legislation directed at this and a court in New Jersey has upheld a cause of action against a lender for bad faith negotiation. Not much on this in California yet.... Read More

The law requires the lender to refund to the trustor the net surplus from the trustee's sale, that is the net difference between the sale price and the loan balance. (Civil Code section 2924k, subdivision (a).) The tricky word, though, is "net." Lenders typically suck up most or all of the remaining equity with a battery of appraisal fees, maintenance fees, escrow fees, transfer fees, trustee's fees. attorney fees, taxes, insurance premiums, and so on. You are entitled to a written accounting showing the sale price, itemized deductions, and the net balance, if any.... Read More