California  |  Real Estate Law

Legal Question

Asked on: 4/28/13, 3:01 pm

I foreclosed on a property 2 years ago, however my 2nd mortgage appears on my credit report as an unpaid loan...Also, the issuing bank, BoA was charged with mortgage fraud...How to I scrub this from my report?

2 Answers

Answered on: 4/28/13, 3:21 pm by Timothy McCormick

OK, first off, YOU didn't foreclose on anything. The lender forecloses, not the borrower. Second, did you pay the debt as agreed, or was it discharged in bankruptcy or by a foreclosure? Did YOU sue for mortgage fraud and prevail? If not, why in the world would you think you have any way, much less a right, to have that unpaid debt "scrubbed" from your report? It's an unpaid debt reported as an unpaid debt.

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Answered on: 4/28/13, 3:24 pm by Bryan Whipple

When you say "I foreclosed" I think you mean "My lender foreclosed." Borrowers don't foreclose.

You need to go back to or around the date, two years ago, when the foreclosure occurred. The foreclosure of a first deed of trust does not automatically result in paying off (or otherwise eliminating) a second deed of trust. For example, if your 1st is $150,000 and your 2nd is $75,000, and the foreclosure sale by the 1st lender nets $200,000 after costs, that'll pay off all of the 1st and $50,000 of the 2nd, leaving $25,000 due from you, the borrower. In addition, the $25,000 is probably all due right now, because the default on the 1st would have triggered an acceleration clause, and the lender on the 2nd, being now unsecured and unable to resort to the collateral, is allowed to sue for the $25,000 balance. It has become a so-called "sold-out junior lender."

So, review the papers that were (presumably) served on you before and after the foreclosure, to see whether and to what extent the 2nd was paid down or paid off from the proceeds of the foreclosure sale.

I don't know whether any of the various lawsuits against your lending institution would affect your liability, especially if your 2nd was with a different lender. Probably not, if you weren't a party or member of a plaintiff class if it were a class-action suit. You might ask a lawyer near you.

As far as removing a negative from your credit report, the credit-reporting agencies' Web sites should have contact information. However, you'll need fairly convincing evidence that the 2nd was paid in full out of the proceeds of the 1st's foreclosure sale, or otherwise.

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Bryan R. R. Whipple, Attorney at Law P O Box 318 Tomales, CA 94971-0318

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