California Residential Foreclosure Information
In California, when one obtains a loan on residential property, it is usual for that loan to be evidenced by a Note and secured by a Deed of Trust. It is this combination of Note and Deed of Trust that one commonly thinks of as their mortgage.
If one fails to pay the money due under the terms of the Note, then pursuant to, and in accordance with, the terms of the Deed of Trust, the Lender can enforce payment of the note.
In re Kang Jin Hwang 396 B.R. 757, 763 (Bkrtcy.C.D.Cal.,2008) In California there is only one form of action to enforce a promissory note secured by Real Estate that process is called foreclosure. It may be either judicial or non-judicial depending on the circumstances.
Almost universally, on residential property, the non-judicial form of foreclosure is chosen by the lender. It is faster than a judicial foreclosure (which requires the filing of a lawsuit). In exchange for the speed and ease, the foreclosing lender gives up the right to a deficiency judgment i.e. the property is all that the lender can get.
Typically, the process officially begins when the Trustee named or appointed as set forth in the Deed of Trust records, in the County where the property is located, a Notice of Default and Election to Sell.
Sometime more than 90 days thereafter, if the default in the terms of the Note has not been cured, the Trustee will record a Notice of Trustee's Sale Date. This Notice will set forth the date upon which the then Trustee under the terms of the Deed of Trust will sell the property pursuant to the Power of Sale contained in the Deed of Trust.
Civil Code Section 2924 states that the Trustee may not conduct a sale under the terms of the Deed of Trust until at least all of the above actions have been taken.
The homeowner has until five days prior to the sale date that is set in order to cure any defaults. If that is not done, then on the date set, the Trustee will sell the property to the highest bidder usually the bank.
It is important to note that nothing set forth above says who can actually order the trustee to commence the foreclosure process. That matter is governed by the terms of the Deed of Trust which almost universally states that only the LENDER can instruct the Trustee to commence the process. Thus, if the LENDER has not instructed the Trustee to commence the foreclosure process, it is quite possible that the process itself is wrongful.
More on this issue in the next installment.
If you need help to prevent foreclosure on your property, contact me:
Mark Brifman
Brifman Law Corporation
Mail: P.O. Box 950447
Mission Hills, Ca. 91395-0447
Office: 15545 Devonshire St., Ste. 311
Mission Hills, CA. 91345
Phone: (818) 920-2113 x 101
Fax: (877) 920-5464
Website: www.brifmanlawoffice.com
