Legal Question in Real Estate Law in California

Two questions please:

In CA under a Trustee Sale could there be a deficiency judgment against borrowers when the real property has been refinanced and is rented? Same question for AZ.


Asked on 9/26/10, 10:50 am

2 Answers from Attorneys

In California the "one form of action rule" applies to all deeds of trust, to preclude any action on a deficiency after a foreclosure by trustee's sale. You must file a judicial foreclosure of the deed of trust if you want a deficency judgment. You will have to ask about AZ in a separate question posted to AZ attorneys.

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Answered on 10/01/10, 11:36 am
Anthony Roach Law Office of Anthony A. Roach

Mr. McCormick has the right result for the wrong reasons. The one action rule of Code of Civil Procedure section 726 actually provides for a deficiency, in some cases. The courts have repeatedly criticized attorneys making this error, because a trustee's sale is not considered an action.

In California, a foreclosing lender is prohibited from obtaining a deficiency judgment, after conducting a nonjudicial foreclosure sale, known as a "trustee's sale," by operation of Code of Civil Procedure section 580d. "No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage upon real property or an estate for years therein hereafter executed in any case in which the real property or estate for years therein has been sold by the mortgagee or trustee under power of sale contained in the mortgage or deed of trust."

Arizona's laws are different. You can start reading about Arizona's anti-deficiency law here: http://www.foreclosurecounseling.com/foreclosure_help/antideficiency.html

You may want to repost your question for Arizona attorneys to answer, for more details or clarification.

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Answered on 10/03/10, 6:52 pm


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