A Guide to Foreclosures In California

If you are facing foreclosure on a property in the State of California, the folks at  JT Legal group offered us this nice breakdown of the process and steps you need to know specifically for California.

  1. What is Foreclosure?

When a homeowner cannot make a payment on a mortgage, the lender or the mortgage company initiates foreclosure against the property. A homeowner can fail to make mortgage payments for a variety of reasons: unemployment, inability to work due to a medical condition or injury, excessive debt or billing obligation, job transfer, or a divorce.

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A foreclosure is the legal process that occurs when a buyer defaults on a loan and the lender “forecloses” (forces the sale of) the home to pay the outstanding loan. Typically, when a person buys a home, they borrow part of the purchase price from a bank or a mortgage company. The lender puts a lien on the property to secure payment for the loan. If the borrower or homeowner defaults on the loan or the mortgage payments (doesn’t pay), the lender can foreclose.

For more information about foreclosure laws:

Foreclosure process – Civil Code section 2924

Foreclosure consultants – Civil Code section 2945

  1. Types of Foreclosures in California

There are two types of foreclosures that lenders can utilize to foreclose on deeds of trust or mortgages in the State of California: judicial foreclosures and non-judicial foreclosures.

Non-Judicial Foreclosure

A nonjudicial foreclosure is the most common type of foreclosure in California. A lender utilizes a nonjudicial foreclosure when there is a power-of-sale clause. A power-of-sale clause is a clause written into a mortgage or the deed of trust authorizing the lender to sell the property in the event of default in order to repay the mortgage debt.

If a lender chooses to pursue the borrower via the nonjudicial foreclosure process, the lender gives up its right to collect a deficiency judgement against a borrower. A deficiency judgment is an unsecured money judgment against a borrower whose mortgage foreclosure sale did not produce sufficient funds to pay the underlying loan in full. However, most lenders prefer the non-judicial process because it cost less and is more time efficient. In California, deficiency judgements are exceedingly rare, and only possible after a judicial foreclosure.

Judicial Foreclosure

A judicial foreclosure is when a lender files a lawsuit to get a court order to foreclose on the home. It is used when there is no power of sale clause. After the lender obtains a court order, the home will be auctioned off in a public auction. However, it is rare for a lender to utilize the judicial foreclosure option in California.

A lender can get a deficiency judgment against the homeowner but the homeowner retains the right of redemption. The right of redemption allows the homeowner to buy the home back from the successful bidder at the auction for up to one year after the sale. This process is longer and more costly than non-judicial foreclosure.

  1. Understanding The Foreclosure Process

The following is the foreclosure process for a nonjudicial foreclosure.

  1. The lender MUST contact the homeowner and anyone else on the mortgage loan to assess the homeowner’s financial situation and explore the different options to avoid foreclosure. It is important to note that the lender:
  • Cannot start the foreclosure process for at least 30 days after contacting the homeowner to make an assessment;
  • The lender must advise the homeowner that he or she may request another meeting to avoid foreclosure and it must be scheduled within fourteen days; and,
  • The homeowner can allow a lawyer, a HUD-certified housing counseling agency, or another other advisor to speak on homeowner’s behalf. Additionally, the homeowner is not forced to accept the plan that the representative and the lender came up with during their discussions.
  1. If no plan could be worked out to avoid foreclosure, the lender records a Notice of Default in the county where the property is located. The lender will send the homeowner a copy of the Notice by certified mail within ten business days of recording the Notice of Default. At that point, the homeowner has 90 days to “cure” or pay the amount owed.
  1. If the homeowner fails to cure the default, a Notice of Sale is recorded at least ninety days after the Notice of Default is recorded. This Notice basically states that the lender will sell the home at an auction in twenty-one days.
  1. The Notice of Sale must meet the following requirements:
  • Sent by certified mail;
  • Be published weekly in a newspaper of general circulation in the county where the home is situated for 3 consecutive weeks before the sale date; and,
  • State the date, time, and location of the foreclosure sale; the address of the property; the trustee’s name, address, and phone number and an accompanying statement that the property will be sold at a public auction.
  1. At the public auction, the successful bidder must pay the full amount of the bid immediately with cash or a cashier’s check. The successful bidder will receive the deed of trust. The lender typically bids at the auction for the amount of the balance plus the cost of the foreclosure. If no one else bids, the lender keeps the property.
  1. Stopping Foreclosure Sale in California

If the homeowner gets the money to pay the defaulted amount, he or she has five days before the foreclosure sale to cure the default payment and stop the process. This is referred to as the “reinstatement” of the loan. Additionally, during the twenty-one day period, any person, entity or institution, with an interest in the home has a right to redeem the home up until the nonjudicial foreclosure sale. However, they must pay the loan in full.

Finding a foreclosure defense law firm can help you keep your property from being sold in a public auction. Most law firms will provide a free consultation with an experienced foreclosure attorney who will review your case, discuss your options, and hopefully find the best solution for your unique situation.

  1. What Happens After Foreclosure?

After the property has been sold, the new owner must serve the homeowner with a three day written notice to “quit” or move out. If the homeowner refuses to move out or fails to move out within three days, the new owners can put the old homeowners through a formal eviction process. This is called “Unlawful Detainer,” and typically takes several weeks. The new homeowners will have to get a court order to get possession of the home.

  1. Rights of Tenants During Foreclosure

If the old homeowners were renting the home to tenants, the new homeowners must honor the existing lease; however, if the tenants have a month-to-month lease or if the owner/landlord also lives in the home that was foreclosed on, the new owner may evict the tenants and/or the former landlord or renew the existing lease. If the new owner elects to evict the tenants, he or she must give them ninety days notice before being the eviction process.

About Law Firm JT Legal Group is one of California’s most experienced and prolific law firms in the areas of Foreclosure Defense and Probate. Our attorneys take pride in our extremely high success rate, meticulous work ethic, and passionate defense of our clients’ rights.

Note: Attorney advertising. Nothing posted on this blog is intended, nor should be construed, as legal advice. Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation. Nor does any comment on a blog post create an attorney-client relationship. The presence of hyperlinks to other third-party websites does not imply that the firm endorses those websites, their contents, or the activities or views of their owners.

The material provided in this article is for informational purposes only and should not be relied on to make any legal decisions without first consulting a licensed California attorney. The authors of this website are not licensed to practice law in California but the information was prepared and submitted by a licensed California law firm.

Short Sale Tax Break Set To Expire

Short Sale Tax Break Set To Expire

For homeowners looking to complete a Short Sale Loan Modification or Deed in Lieu of Foreclosure an important tax deadline is looming which may change your thinking about which foreclosure option is right for you.  In fact, if Congress fails to act by the end of the year one of the most effective government sponsored tools to help struggling homeowners will end and the financial crisis will worsen yet again.

Generally, few people realize that the total dollar amount forgiven by banks in short sales and loan modifications is considered taxable income by the IRS and could have a huge impact on your tax liability.  Fortunately, the Mortgage Forgiveness Debt Relief Act was passed in 2007 to eliminate tax liability for 5 years when borrowers utilize one of the Ten Foreclosure Options available to stop foreclosure sales.

Brief History

Under the U.S. tax code, all types of forgiven debt are treated as ordinary income and subject to regular tax rates.  As a result, if your home is underwater and you owe $250,000 on your loan but complete a short sale or loan modification for $150,000, the $100,000 forgiven or reduced debt would normally be taxable.  Depending on your tax rate, the tax liability in this example could exceed $20,000.

By passing the Mortgage Forgiveness Debt Relief Act in 2007, Congress wisely eliminated the need to pay taxes on income that never actually existed and allowed homeowners to truly move on once the Foreclosure Process was complete. 

Current Status

This critical exemption from taxable income is set to expire on December 31, 2012 and could have dire consequences for both homeowners and the real estate market overall.  Should Congress fail to extend the Act, millions of stressed out American homeowners who’ve survived the foreclosure process will be hit with the double whammy of unexpected taxable income AND likely being forced into a higher tax bracket as a result of the extra income.

The obvious solution is not only extending the Act but making its provisions permanent so borrowers aren’t facing an annual guessing game about important financial issues.  The good news is that the Senate Finance Committee approved a bi-partisan bill on August 2nd that would at least extend the tax relief through 2013.

The bad news is that despite Senate Committee approval, the bill must still pass the full Senate (likely) and the House of Representatives (who knows) before becoming law so the best advice is to act now if at all possible. Complete your loan modification or short sale before the end of the year or risk becoming a political pawn subject to the vagaries of an increasingly unreliable political system.

If you can’t get approval for your Foreclosure Option by the end of the year, make sure to vote for the people you think are most likely to help you and the rest of the people in our country.  Sometimes collectivism makes a lot more sense than individualism and making sure that children and families have a safe and secure place to sleep at night is or should be a no-brainer.

Related Content:

Sample Foreclosure Letters

Tips For Short Sale Approval

Foreclosure Lawsuits

Legal Defenses to Foreclosure

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Control Foreclosure Stress and Enjoy Life Again

 Foreclosure Process and worrying about financial problems in general is a normal reaction and a concern shared by millions of other people just like you.  Homeowners who never worried about job loss or the prospect of losing their homes are now amongst the three million current foreclosure cases with many more families behind in payments and soon to be in foreclosure as well.

Read more about the magnitude of the foreclosure crisis and why the recent Nationwide Foreclosure Settlement won’t help many homeowners.

Regardless of the problem and no matter how dark things look, never forget to enjoy life.  We all have different religious and spiritual beliefs but what they all have in common is the recognition that life is short and precious and it’s up to you  to make the most of your life in the brief time we’re privileged to be alive.

What that means is to find the things that matter most to you and focus on them rather than your problems, at least for awhile!  Never forget to make the people closest to you happy and tell them how much they mean to you, make sure to spend quality time with your family and never neglect your cats and dogs and the remarkably unconditional love they provide.  Most importantly, make sure to do the things that make you feel good whatever are.  Crank up your favorite music, reread your favorite book or find a new one, call a friend you haven’t spoken to for awhile or dust off your baseball glove or tennis racquet and remember what it feels like to be a kid again.  Anything that makes you happy, just don’t hurt anybody!  And don’t just nod your head in agreement, do something about it!

If you don’t have anything that sparks your passions, find something that does.  It’s never too late to learn new computer skills or sign up for an online class,  take up dancing, jogging or try different activities like painting or yoga to meet new people who like to do the same things.

For others you have plenty of interests but not enough time, money or motivation.  Make time and choose the things that are realistic and easy to get started and pull out your fishing rod, shine your bowling ball, shoot pool, head to the local beach or mountains or any one of the thousands of options you have to make each day unique and interesting.  We all have a certain number of days known only to God, but there’s always one less than the day before so make each day count for you and the people you care about and don’t let foreclosure stress control your life.

More on the Dangers of Foreclosure Stress

Related Content:

Defending Foreclosure Lawsuits

Avoiding Deficiency Judgments

Tips To Get Your Short Sale Approved

Sample Foreclosure Documents

 How Strategic Default Works

 

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Florida Foreclosure Crisis

Love the weather but hate the housing market – a familiar refrain for many Floridians as the Florida Foreclosure Crisis has dominated the lives of  homeowners for the past several years.

Florida leads the nation in just about every negative foreclosure category and currently has more than 350,000 active foreclosure cases swamping the courts with a lot more to follow.  Unfortunately the number of foreclosure lawsuits is likely to double and the Florida Foreclosure Crisis worsen by 2014 due to 500,000 seriously delinquent mortgages that are not yet in foreclosure proceedings. Defending Florida Foreclosure Lawsuits.   Incredibly the current number of Florida loans in some stage of the foreclosure process – about 460,000 loans – is more than the total number of mortgages in 22 other states!  Florida Foreclosure Process

Finally, at least one in every four Florida home sale involves a property in foreclosure which means dramatically lower home values exceeding 50% in many counties with no signs of stabilizing anytime soon.  In fact well known housing analyst Jack McCabe, one of the few to predict the housing bust years before it happened, warns that it may take a decade or more for home prices to return to previous highs.

Broward County Foreclosure Help

Palm Beach County Foreclosure Help

Despite the negative outlook overall there’s a few reasons for short term optimism.  One positive sign is that many lenders are increasingly dealing with defaults through Short Sales rather than foreclosure lawsuits in a trend that will hopefully expand.  Recently major lenders Wells Fargo and Chase have actually been offering homeowners thousands of dollars to encourage short sales as banks are finally figuring out that its in their best interests to stabilize the housing market and work with rather than against homeowners to do so.

A second positive development that may help Florida homeowners is an influx of roughly $8 billion dollars in cash for Loan Modifications and other benefits from the Nationwide Foreclosure Settlement.  Although $8 billion dollars barely puts a dent in the $110 billion dollars in underwater Florida mortgages, something is better than nothing and will ultimately lead to more deals with banks and a few less foreclosures.  Is Your Mortgage Underwater?

The combination of funding from the multi-state Settlement and the increased willingness of lenders to push short sales over foreclosures are good signs but won’t fix the long term problem with largely unregulated predatory banks continuing to exploit the financial system.  Blame the Banks – Foreclosure is Not Your Fault

You can read more about the Foreclosure Settlement and why it won’t help in our recent blog and as a result its more important than ever to learn about the Foreclosure Process to take advantage of favorable conditions when and if they happen to give your foreclosure plans the best chance to work for.

Ten Foreclosure Options to Beat the Bank

You can use our Sample Foreclosure Documents to assist in getting your Florida short sale or loan modification approved and we’ve also included Sample Florida Legal Documents to help you defend your own foreclosure lawsuit.  Tips to Get Your Short Sale Approved

Related Content:

Difference Between the Promissory Note and Mortgage

Defending Foreclosure Lawsuits

Don’t Just Walk Away, Deed Away

Stop Foreclosure Stress and Enjoy Life

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Use SavetheCave.com To Stop Foreclosures

How to use SavetheCave.com to stop foreclosures starts with learning everything you can about the Foreclosure Process.  Once you know what’s actually going on it’s much easier to pick a foreclosure option that works best for you and your family.  Detailed Information on Foreclosure Options

At SavetheCave.com we understand the power of knowledge and as a result have provided extensive materials on a wide range of foreclosure topics to help you survive the foreclosure process.  You’ll learn everything from what to expect and when to tips for living with foreclosure stress and understanding the risks to your physical health and mental well being. The Dangers of Foreclosure Stress

Using the navigation bar at the top of our site you can select a general topic and any of the sub-topics that interest you from the drop-down menu which directs you to a detailed discussion of that topic as well as related links and materials.

Once you’re comfortable with the foreclosure process the next step is deciding which foreclosure option works best for you and then learning how to actually do it.  SavetheCave.com is here to help with this critical stage as well and provides all the information and tools you’ll need to to learn about the Ten Ways to Stop Foreclosure in addition to Unlimited Free Access to all of our Sample Foreclosure Documents and Legal Forms.

  Sample Foreclosure Documents

Our Sample Foreclosure Documents include cover letters to the bank, examples of what to include in your financial hardship letter and sample legal forms to help you get started if you decide to defend your own foreclosure lawsuit. They’re all part of our free membership and commitment to provide you with everything needed to stop foreclosure if at all possible.  Unlike other foreclosure sites there are no costly subscription fees so you can return as often as you like.

Because life goes on during and after foreclosure as well as the importance of maintaining a positive outlook in life, we’ve dedicated a significant portion of our site to topics related to the Dangers of Foreclosure Stress and will continue to provide valuable medical and lifestyle updates to Prevent Foreclosure Stress From Controlling Your Life.

Finally, with our weekly interactive blog we’ll keep you updated on the latest foreclosure trends and news, important legal developments and more ways to Save Your Cave and protect you from foreclosure.  Feel free to comment on any of our posts and share your story with our readers as well as your own tips for surviving the foreclosure crisis.

If you like what you read, tell your friends and relatives about us and let us know what we can do better. Even if you don’t like something, let us know your thoughts and what we can do to improve our site.

Related Content:

Florida Ground Zero in Foreclosure Crisis

Florida Foreclosure Process

Nationwide Foreclosure Settlement

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Nationwide Foreclosure Settlement Insults Homeowners and American Values

All your problems are over as a result of the recent Nationwide Foreclosure Settlement.  Not.  Anticipated for months and widely heralded by banks, government officials and many media outlets as a landmark settlement agreement that will help end the foreclosure crisis, the sad reality is that once again the large financial institutions win and homeowners get screwed.  As discussed below, the amount of money involved barely moves the needle past empty and the complete lack of operating rules, enforcement measures or deadlines makes the agreement nothing more than false hopes and empty promises.  Once again the good old middle class American family is at the losing end of a battle with multinational banking interests who have lost touch with people and local communities.

Let’s discuss the specific provisions of the settlement itself.  Initially, the total value of the deal is $25 billion dollars which pales in comparison to the overall size and scope of current underwater mortgages and basically ignores the damage done by banks and servicing companies in causing the mortgage meltdown.  Knowing with complete certainty that they’d be held accountable for their illegal actions at some point, banks simply put the money in reserve long ago and then decided to raise nearly every imaginable banking fee to cover any losses while continuing to increase profits and year end bonuses.

The majority of the money – $17 billion of the $25 billion dollar total – is supposed to fund principal reductions and loan modifications to make monthly payments more affordable.  Right concept but no planning and nowhere near enough funding to make it work.  With roughly 11 million underwater mortgages totaling $700 billion dollars, $17 billion in reduced principal would be just 2.4% of the total percentage of upside down loans and leaves more than 97% of the problem untouched!  Learn More About Underwater Mortgages

What this means for individual homeowners is unclear but can’t be good.  In the best case scenario, one million loans will be reduced by $17,000 (or less) and the remaining ten million homeowners will get nothing.  Given that the average underwater mortgage is $50-60,000 in the hole, even the few homeowners who actually qualify won’t get much help with payments that will only be lower by $200-300/month.  Anything helps but let’s get real.  As gas and food prices continue to go up, any savings in that range are quickly swallowed by increased costs for everything else.  More on Foreclosure Loan Modification

As pathetic as the numbers look, it doesn’t get any better.  Incredibly, there are no rules or operating procedures  to figure out who actually gets help and who gets nothing at all.  Although one million homeowners may get a little relief, ten million others get nothing and guess who decides who gets what?  That’s right, the same bankers who caused the foreclosure crisis and have no interest in helping anyone but themselves will be working together with government bureaucracy to make it all work! Could be worse, we could live in Russia! Blame the Bankers for the Foreclosure Crisis

By the way, who decides if your home is actually underwater and what if the bank disagrees with your online research or a professional appraiser’s findings? Who pays for the appraisal and if there’s a dispute, who pays for a third appraisal and what assurance do you have that the bank will actually accept and agree with your appraiser? None is the only conclusion and you may actually spend a lot of money at the bank’s direction to end up worse off. Ten Ways to Beat the Bank and Stop Foreclosure

In addition to all this good stuff,  there will also be numerous court challenges by  banks and mortgage servicers once the efficient federal government actually writes the rules on how the process is supposed to work.  You didn’t think the banks would agree to part with their money that easily did you?  Factor in the mountain of paperwork that accompanies 11 million new applications for relief and the pathetic history of banks not complying with previous settlement agreements and the whole process seems destined to fall far short of the needs of America at a critical time in our history.

The refusal of the government, wealthy individuals and corporations to help homeowners is despicable and unacceptable but also misses the basic point.  Homeowners are America and Americans, not corporations and banks owned by multinational interests and the rich one-percent. Like any other retail business they’re here to serve us and the weak effort to help the struggling core of America is just another example of how far our country has strayed from its essential values of life, liberty and the pursuit of happiness.  I don’t see the words foreclosure or greed anywhere in the Constitution but pursuing life, liberty and happiness sure seems to be at odds with these concepts.  Don’t Let Foreclosure Stress Control Your Life

The second portion of the settlement funds are somehow supposed to compensate homeowners who were subject to wrongful and often illegal foreclosures by giving these poor folks a whopping $2000 check for their troubles.  Physical and emotional stress, the shame and embarrassment of  losing their homes and the significant costs of moving and establishing a new place to live apparently means nothing more to the banks and politicians than a token payment that’s less than one month’s typical mortgage or rental payment.  Renting Your Home To Avoid Foreclosure

Even more insulting,  to qualify for this measly reward homeowners were literally forced to waive their constitutional right to sue banks for damages and agree to a complete release of civil liability without any input in the process.  Are you kidding me?  Intentional fraud documented in every state in America and a blanket waiver for every one of the perpetrators? Where the heck did they find a “Get Out Of Jail Free” card? Advance to Go for sure, but a remarkable perversion of the justice system and a mockery of the political system that allowed this agreement to pass.

Not only is a $2000 payment insulting and insufficient for everyone involved except the banks, but like the rest of the agreement there are no guidelines to decide who qualifies.  In essence, we have the bankers themselves in charge of deciding if their own illegal actions warrant a $2000 payment but no enforcement measures if they’re wrong or simply ignore you.  Given that 8 million homes have already been subject to foreclosure, helping just 750,000 of those homeowners with barely enough to survive one month is further proof of how worthless the agreement is and how little chance it has in succeeding to end the foreclosure crisis.

Not surprisingly, banks can barely contain their enthusiasm for this part of the deal and you’d be pretty happy too if the total risk for repeatedly lying to courts, willfully  ignoring laws and creating reams of phony and fraudulent documents was just $2000 per loan particularly when closing costs were often 3-5 times that amount.  Don’t think the banks will do this again do ya?

The third prong of the fatally flawed  mortgage settlement and the one that seems to get the most media attention involves banks finally agreeing to a single contact person to work with homeowners.  Thus rather than dealing with a different person for each phone call and letter, banks have agreed to a process already used by nearly every successful company worldwide-namely having someone familiar with you and your account actually handle your account! Who Owns Your Mortgage and Why Care

What’s mind boggling is why this common sense process was not in place from the start and why it took so long and so much pressure to change.  We’re talking about people’s homes and the single most important asset in nearly everyone’s life.  With dollar amounts in the hundreds of thousands and long and often complicated loan documents, we’re not dealing with refunds from Amazon for $24.99.  Unfortunately, now that banks have joined the 21st century even more questions remain than answers.

Are banks planning on hiring thousands of individuals trained in the financial and legal complexities of loan transactions or are they more likely transferring existing staff from one call center to another?  How many of the 11 million files will each individual contact person be assigned to handle and will the decisions be reviewed by supervisors or more fully trained professional lawyers and accountants? With no deadlines or enforcement measures what protections are in place to be sure your file is fully and fairly evaluated?  If you have one point of contact, what do you if the person refuses to return letters or calls in a timely and professional manner?  What to do With Your Second Mortgage in Foreclosure

Its hard to fathom that banks have once again escaped unscathed despite blatant and obvious violations of law that were clearly planned and part of a long term pattern where greed trumps morality, ethics and the law.  How is it that banks repeatedly get away with this when the average citizen and homeowner would be locked up for committing similar acts?

Quite simply, they know they can get away with it and have for as long as our country has existed.  Despite the unmitigated pursuit of profits at all costs, the banks know that the worst case scenario would be yet another government bailout so there’s no risk for them.  Pillage and plunder, make enough money to run small countries then get rewarded when their dirty paws are discovered in the cookie jar.  If you were rewarded for stealing food from your local grocer, what stops you from stealing again and taking more each time?  If you understand why that’s the wrong way to live, you’re way ahead of the bankers and their single minded pursuit of wealth at the expense of the rest of us.

We’ll have much more on the Nationwide Foreclosure Settlement as matters continue to unfold so stay tuned. Meanwhile, spend time reviewing your foreclosure options and the rest of SavetheCave.com  so you’ll be prepared to protect your foreclosure rights and move forward regardless of what happens with the success or failure of the worthless settlement.

How SavetheCave.com Can Help Stop Foreclosure

Related Content:

Foreclosure Options

Florida Foreclosures

Foreclosure Process

Dangers of Foreclosure Stress

Photo by Beit Weizmann

 

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