Legal Question in Real Estate Law in California

I had a home equity loan on a rental property located in Southern CA. This was a rental property, I have another rental property and a primary residence that are in good standing but still underwater. This particular rental property has gone into forclosure and the home equity loan has defaulted. The home equity loan shows as "charged off as bad debt" on my credit report. I assume that I will be liable for some tax consequences.

I was surprised to get a phone call and a letter from an attorney claiming to be a collection agency. They claim that the lender on the home equity, WFC, has turned to loan over to them for collection. The attorney states that they don't report to any credit agency. What is their purpose? I'm I now being sued for the loan that was written off?

Thank you!


Asked on 1/11/11, 12:22 pm

2 Answers from Attorneys

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

You need to understand what "writing off" a loan really means. Essentially, it is nothing more than an internal bookkeeping decision by the creditor. It decides to treat the loan as more appropriately not shown on its books as an asset any longer, reflecting the relatively low chances of collecting. Writing off a loan is sometimes accompanied by selling the loan for cents on the dollar to a bill collector or speculator. Nevertheless, the lender's internal decision to "write off" the loan does not affect the borrower's liability. The borrower is not forgiven by the mere act of writing off the loan. Borrower forgiveness can result from other acts, such as a short sale or a decision to foreclose by trustee sale (and accept a shortfall without recourse to the borrower), but there is no foregiveness caused or implied by the mere act of writing off a loan.

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Answered on 1/16/11, 1:35 pm
Anthony Roach Law Office of Anthony A. Roach

My big question to you would be whether the security for the loan is being foreclosed, or some senior deed of trust? You may have defenses depending on the facts of the underlying transaction and the status of the foreclosure. I suggest you speak to a competent real estate attorney.

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Answered on 1/19/11, 4:35 pm


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