If you have received a Notice of Default or Notice of Trustee’s Sale, you are invited to come by our office and pick up a FREE information packet. Our information packet will help you understand the banks actions and the rules the law requires them to follow. Our most popular handouts explain the rules governing the foreclosure process: Notice of Default, Notice of Trustee’s Sale, Sale Procedure, and how the Home Owner’s Bill of Rights allows a homeowner to sue the Banks for not playing fair.
The Federal Consumer Financial Protection Bureau rules that went into effect January 10, 2014 force the banks to wait until you are 120 days delinquent on your payments before any official notice or filing under California’s Nonjudicial Foreclosure process. The intent of this rule is to force the banks to explore options to foreclosure, also known as loss mitigation options. Our HAMP handouts help you successfully complete any modification requests you submit. We encourage everyone who receives a call from any bank to request a second meeting to discuss the specific facts of their case, and to use our handouts to assist you in making our needs clearly known to the bank. This lets the banks know that you know the rules they must follow. Sadly, huge numbers of foreclosures occur that could be prevented.
Our mission is to make sure you enforce your rights. Governor Jerry Brown signed into law the “Homeowners Bill of Rights, SB900, making California the first state to adopt laws requiring banks to:
1) Explore with the every homeowner all available alternatives to foreclosure;
2) Contact the homeowner 30 days before recording a Notice of Default and state in a declaration that the bank has complied with this requirement, signed by a bank official, Under Penalty of Perjury, stating what the result was of offering foreclosure options (namely a lower payment and a reduction of arrears by a deferment or outright principal reduction);
3) Stop any “Dual Tracking,” which is proceeding with foreclosure while pretending to review the homeowner for a lower payment; and
4) Assign one person known as a “single point of contact” to limit the confusion and contradictory information banks are known for.
We look forward to seeing you at our office soon. We have relationships with attorneys in every specialty if you need, and we provide efficient document preparation. Join us and remember, if you know the players and the rules of the game, you can always win.
What happens in a foreclosure case?
- You get a Notice of Default. The company managing the loan must send you the 35 day default notice discussed above. No action can be taken until after the 35 days is gone.
- You are served with Court papers. The mortgage company must have a copy of a summons and complaint "served" on you, normally by a Deputy Sheriff. The company files the same papers with the court. This begins the court foreclosure process. You have 20 days from the date you were served to file an Answer with the court if you wish to contest the foreclosure.
- File an Answer and Request Mediation. To avoid an immediate “default judgment,” you must file an Answer (or a letter requesting more time to file an Answer) within 20 days of getting the court complaint. If you do not file an Answer, you will almost certainly lose your case.
- Mediation. If you live in the home and have requested mediation, you will have a chance to participate in mediation. You will get a notice from the court telling you when to go to mediation. Mediations are only held in certain courts. If your case is not in one of those courts, you will get a notice that your case is temporarily being transferred to another court for the mediation process.
- Motion for Summary Judgment. After you file your Answer, (and go through Mediation, if you asked for it), the company's lawyer may file a Motion for Summary Judgment. You will have 21 days to file an opposition to this Motion.
- Trial. If the mortgage company does not file a Motion for Summary Judgment - or you raised enough valid unresolved questions in your response to their Motion - then the Court will hold a trial. Usually, a “Pre-Trial Conference" is scheduled before the actual trial is scheduled. You will probably get a "Scheduling Order" telling you where and when the conference will be held.
- Judgment by the Court. If you fail to:
- answer the complaint,
- raise successful counterclaims or affirmative defenses,
- resolve your case through mediation,
- win the motion for summary judgment, or
- win your case in the trial phase
then the court will likely enter a judgment of foreclosure.
- Redemption Period. If a judgment is entered against you, you will still have a right to the property called a "right of redemption". This means that you can keep your home by paying back the full amount of the mortgage loan, plus legal costs and fees (not just the payment arrears). The right of redemption exists for 90 days immediately following the entry of the judgment.
- Public Sale/Eviction. If you do not "redeem" the property within the 90 day redemption period, you will not own the property any more. When the redemption period ends, you can be evicted in a very short time frame (48 hours), and most likely there will be no further court hearings before this happens. The mortgage company is entitled to possession of the property regardless of how much, or how little, you still owe; the time of the year; or any other reason.
- Report Of Sale. After the sale, the mortgage company must file with the court a "Report of Sale," explaining how the money from the sale of the property was received and how the company proposes to spend it. The company must send a copy of the "Report of Sale" to you, at your last known address. To be sure you get this report, leave a new forwarding address with the post office, the court clerk, the company's lawyer, or all three. When you receive the notice, you can object to how the money from the sale is to be distributed but not to the sale itself.