Legal Question in Bankruptcy in California

Below is a question I asked earlier today and have rec'd 2 responses and really do appreciate the answers but I left out some vital information because of the answers I rec'd and I do apologize for that. My parents never rec'd a default notice before they filed chapter 7 so since there has never been one, my question should of been will they get one now? I realize if they wanted to keep the house they should of filed chapter 13 but they got into a bad loan and they are elderly and both retired this was the only way out for them.....thanks again....concerned daughter!!

Here is original question:

My parents are in chapter 7 and were behind on their house payments before they filed. Now mortgage company has lifted the stay so they can proceed with foreclosure. My question is since their in California does the lender still have to file notice of default or does it go directly to court sale. I am hoping for their sakes the NOD still has to be filed to give them the extra 90 days.


Asked on 5/09/11, 9:44 am

3 Answers from Attorneys
Tony Carballo Carballo Law Offices

I believe that I already answered your question. If no notice of default previously served then one has to be served before the notice of trustee's sale. The bankruptcy court merely gives the lender permission to foreclose under California law so the lender must follow standard procedure to foreclose by giving the required notices. Check the index of the County Recorder's Office to see if a Notice of Default was filed just to make sure because maybe your parents did not see it when it was mailed to them.

Read more
Answered on 5/09/11, 10:45 am
JAMES POWELL 909-890-0105 LAW OFFICE OF JAMES M. POWELL

It is unusual for a lender not to file an NOD and file a Motion for Relief with the Bankruptcy court. Check the County Recorder's office to find out if one was filed. If so, Lender can sell the property almost immediatley. However, for some strange reason, if the lender has not filed an NOD, then the process takes a minimum of 3 months and 21 days before the house can go to trustee's sale.

Read more
Answered on 5/09/11, 4:08 pm


Related Questions & Answers

More Bankruptcy Law questions and answers in California