Legal Question in Real Estate Law in California

Can They forclose

1rst is 330k 2nd is 90k. Current market value 230k-270k. Will the bank forclose on me If I dont make the payment on the 2nd? I was advised to just file for bankrupcy but really dont want to.


Asked on 5/23/08, 4:07 pm

4 Answers from Attorneys

Mitchell Roth MW Roth, Professional Law Corporation

Re: Can They forclose

You have other options. You can call me at my new number on Tuesday, and I'll give you the short run down. You'll find it in my public bio info.

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Answered on 5/24/08, 12:01 pm


Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Can They forclose

Whoever isn't being paid can foreclose. If you pay the 1st but not the 2nd, the holder of the 2nd may foreclose.

Further, the terms of the 1st may require you to keep taxes and all subsidiary loans paid current, and failure to do so could be a default, giving the holder of the 1st a right to initiate foreclosure.

Under the conditions you describe, the holder of the 2nd would not have a strong incentive to foreclose.

I'd hold off on the BK and see what happens. Foreclosures don't move that quickly, and if you haven't even been served with a Notice of Default, you have months before a foreclosure sale to see what develops in the marketplace and examine alternatives without making a snap decision.

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Answered on 5/23/08, 4:36 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Can They forclose

Whoever isn't being paid can foreclose. If you pay the 1st but not the 2nd, the holder of the 2nd may foreclose.

Further, the terms of the 1st may require you to keep taxes and all subsidiary loans paid current, and failure to do so could be a default, giving the holder of the 1st a right to initiate foreclosure.

Under the conditions you describe, the holder of the 2nd would not have a strong incentive to foreclose.

I'd hold off on the BK and see what happens. Foreclosures don't move that quickly, and if you haven't even been served with a Notice of Default, you have months before a foreclosure sale to see what develops in the marketplace and examine alternatives without making a snap decision.

Read more
Answered on 5/23/08, 4:36 pm
Carl Starrett Law Offices of Carl H. Starrett II

Re: Can They forclose

The second can foreclose, but that doesn't mean they will spend the money to do so if they are fully unsecured. In a Chapter 13 bankruptcy, there are ways to actually strip the second mortgage from the property based on the circumstances you described and keep your home. You should consult a local bankruptcy attorney for more information about this procedure.

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Answered on 5/23/08, 6:21 pm

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