Legal Question in Real Estate Law in California

Foreclosures

My mortgage was one month behind. I knew that i would not be able to catch up the month until Jan. It became late in August. Thus every month I have made a payment since Aug. with the late fees. The mortgage company accepted this at first. The have kept the first payment that I sent in Sept. They kept the second payment that I sent in Oct. for about two weeks. They put in through the bank (as they did the Sept. both have cleared the bank) but then decided not to accept it and started foreclosure the first os Nov. They sent me one of there checks for one of mine they had already accepted but now do not want to accept but they still kept one of them. Can they agree to accept then without notice foreclose and reimburse you payments you already made?


Asked on 11/30/00, 2:38 am

1 Answer from Attorneys

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

Re: Foreclosures

In California most residential loans are notes secured by deeds of trust rather than "mortgages" in the strictest sense. I assume you have note and deed of trust financing.

Also, there are two types of foreclosure; the more common is under the trustee's power of sale under the deed of trust; less commonly, there is judicial foreclosure (goes through court).

A foreclosure of a note and deed of trust by use of the trustee's power of sale is quite formal, almost ritualistic, and the duties of the foreclosing trust-deed beneficiary (the lender) and the trustee (usually a title company) are spelled out in the statutes, as are the many rights of the trustor (borrower) to receive notice and to take steps to prevent the trustee's sale.

I cannot tell for sure from your message whether this particular lender has followed the legally-necessary steps. Have you received a notice of default at any time? If so, you need to take immediate steps to protect your equity in your home.

It may be that your lender and/or the trustee are not particularly experienced at doing foreclosures and they may have muddled some of the steps. However, they'll get it right sooner or later.

The stakes are too high to take chances or try to get through your current difficulties without professional assistance. My advice is to buy an hour's time from a local real-estate attorney in your community and find out where the foreclosure process stands. Take all correspondence from the lender and/or the trustee to the first meeting. Also take your original loan documents. The peace of mind or, if warranted, the discovery of how much difficulty you're in, will make the one-hour (or half hour?) conference well worth the fee.

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Answered on 12/03/00, 11:39 pm


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