Legal Question in Real Estate Law in California

I live in california, own a home have a job and a bank account as well as other assets such as mutual funds. I own an investment property in Boise Idaho. We paid $220,00 for it, owe approximately $200,00 and it is currently worth $160,000. Over and above what we collect in rent we pay $1000 toward the mortgage.I am about halfway into a 5 year interest only loan and I do not see the value of the property getting back to the purchase price prior to the end of the 5 years. I am considering allowing foreclosure on the property since I am unable to get any modification of the loan. I would like to know what the ramifications of that would be (other than bad credit). Can they go after my primary residence? can the lender sue me? what are the tax liabilities? Any assistance would be greatly appreciated.


Asked on 11/12/09, 4:08 pm

2 Answers from Attorneys

You need to ask an Idaho attorney about this. I am 95% sure that because the property is located in Idaho, their law would govern.

In California we have an anti-deficency statute for purchase money loans on real property. That means if you made the loan at the time and for the purpose of the borrower buying the property, you can't recover any shortfall from the borrower if you have to "foreclose," and selling the property doesn't bring in enough to cover the debt. We also have something called the "one form of action rule," which provides that if you sell the property at a Trustee's Sale (the proper name in California for what most people call "foreclosure") you can't then foreclose (which is the correct name for a full blown lawsuit to sell the property AND get a deficiency judgment against the borrower to go after their other assets). So even if you made a refinance loan or added a line of credit, etc., after the purchase, you can only go after the borrower's other assets if you give up the right to "foreclose" and file a true foreclosure lawsuit to enfoce the debt.

If you run those concepts past an Idaho lawyer they should be able to tell you pretty quickly whether their law has any similar protections.

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Answered on 11/17/09, 4:34 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The laws of Idaho would apply to the lender's foreclosure and post-foreclosure rights. You can re-ask the question on LawGuru specifying "Idaho" as jurisdiction and see if you get an answer.

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Answered on 11/17/09, 5:43 pm


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