California Foreclosures Legal Questions

This is a very unfortunate situation to be in and sadly, very common among several Lenders for the past couple years. It is in fact true that it is proving much harder than touted to get approved for the magic loan modification and also true that unless and until one is actually approved (and even if you are in the process of being reviewed), if you are in default and it's going on a long time, the Lender is well within it's rights to still proceed under the promissory note to foreclose. Legal, but not logical or fair. But here are 3 important things to know: 1) the foreclosure process is very long and can often take over 4-6 months before it truly got to the stage of selling your house at the court house steps; 2) there are different stages of foreclosure so if you only got a letter as opposed to a civil summons and complaint, then it is even earlier in the stages - you should have an attorney review the letter to confirm what it actually is, and 3) Go to http://www.ncforeclosureprevention.gov/ which may help you out of your situation.... Read More

Even though the original lender is no longer the holder of the promissory note, it may still be the loan servicing agent who has authority to conduct the foreclosure. Or the current holder may have appointed the original lender as its trustee to conduct the foreclosure. Otherwise, if the foreclosing bank does not have legal authority to foreclose, you can raise that fact in opposition to the motion. You would have to file a legal brief and declaration in the court. You will need assistance from an attorney, or at least a paralegal, to help you do this.... Read More

From your description, I suspect that the bank never completed the foreclosure process or the deed-in-lieu process. As a result the property is likely still in your parents name. I would recommend that when your parents answer the complaint against them by the township, that they third party in the bank that is presently holding the keys to the property. Even if the title is still in your parents name, they only hold legal title. Equitable title rests with the entity in control of the property and that entity is the bank. So, tell you parents to get an attorney and tell the attorney to go after the bank to get these things straightened out.... Read More

I just today read a case holding that a lender waives its right to nonjudicial foreclosure by setting off funds taken from a deposit account against the loan balance. However, that would not apply where there is an express cross-collateralization agreement that permits the set off. But as long as the account is at a different bank, your bank cannot take money from it without first getting a money judgment against you and a writ of execution. Whether the bank can repossess your wife's vehicle depends on the terms of your cross-collateralization agreement. Was the loan on your wife's car taken out after the mortgage? If so, does the cross-collateralization agreement specify that security for the home loan will include after-acquired property?... Read More

If you refuse to move out after the sale, the lender has to file an unlawful detainer suit to have you removed. Unlawful detainer is a summary proceeding, so it may take only 30 days or so. However, the smarter thing is to negotiate a move-out date with the lender in exchange for the lender paying your moving expenses or other sum of money. Lenders are often willing to do this in order to save the time and expense of suing to get you out of the property.... Read More

California courts have consistently held that a foreclosing party need not have possession of the original note or deed of trust. I am unable to find a case where the lender could not produce even a copy of the documents. If this is a judicial foreclosure, the lender has to produce some evidence at trial to prove a security interest by a preponderance of the evidence. Under the "statute of frauds," promissory notes, deeds of trust, and all other contracts involving real property must be in writing.... Read More

Unless this was your third bankruptcy filing within the period of one year, the filing of the bankruptcy before the sale should make the sale void. Please check the timing of the sale and the timing of the bankruptcy and contact another attorney ASAP. If the bankruptcy filing was AFTER the sale, you should still consult with another attorney ASAP in case the sale had not yet been confirmed or in case your attorney was negligent in not filing the case.... Read More