Despite their best efforts and intentions, a homeowner may fall behind in making their mortgage payments in California–maybe they lost their job or are facing a major illness. When this happens, their mortgage lender may take steps to foreclose on the property and sell it to regain the money they are owed.
At DiMarco Warshaw, APLC, our real estate lawyer in California understands the worries and frustrations many homeowners face when there is a foreclosure looming. We will work with your interests in mind and use our resources strategically. Contact us today at 888-890-5474 to schedule a free initial consultation.
What Happens During a Foreclosure in California?
Foreclosure is an action a lender goes through to gain title to a home on which they currently have a mortgage. This action is taken when the mortgagor has failed for a few months to make their payments. In some states, the process is a judicial one and the lender must go through the court system to foreclose. In other states, the process is administrative, and a lender may be able to foreclose without involving the courts. In most cases, you must be a minimum of 120 days delinquent in order for a lender to initiate foreclosure proceedings. This is why it is imperative you contact a real estate attorney in California to understand your rights and to gain insight into what you may encounter throughout the foreclosure process.
In a judicial foreclosure, the lender (mortgagee) will file a suit against the homeowner (mortgagor) in the appropriate civil court. The mortgagee typically has a specified amount of time to respond, and a hearing may be held regarding the foreclosure action. The parties may be able to come to some sort of agreement at this point. If an agreement is not made and the court finds that the foreclosure is appropriate, a judgment for foreclosure will be entered. The property will then be sold at a public auction. If the sale does not bring enough money to repay the loan amount that was borrowed, the lender may seek a deficiency judgment against the mortgagor. The process, from start to finish, can take months.
In a non-judicial foreclosure, the process is very different from state to state. Generally, a foreclosure trustee assists with the foreclosure. The foreclosure trustee is a neutral third party, and this process is much more expedient than a judicial foreclosure.
Common Defenses to Foreclosure in California
There are some defenses to foreclosure that are specific to certain areas and regions, but there are others that are more universally applicable. Some of the more universal defenses are listed below.
- Fraud: When fraud or undue influence is used to induce a party to sign a mortgage, it can usually be used as a defense in the foreclosure action.
- Violations of Law: Most jurisdictions, especially those that have a judicial foreclosure process, have requirements on the type and amount of notice that must be given to mortgagors in the foreclosure process. If they fail to abide by those laws, it can be a defense to foreclosure.
- Scams: When the mortgagor is the victim of a scam, such as predatory lending, they may be able to use the scam as a defense to the foreclosure action.
If you are facing a foreclosure, it is in your best interest to seek a foreclosure defense attorney in your area. They may know other defenses that are available to you, as well as other options to avoid foreclosure. For example, your jurisdiction and lender may allow you to execute a deed-in-lieu (DIL) of foreclosure. A DIL allows you to deed your property back to the lender in order to avoid the foreclosure process. DILs typically have less of an impact on your credit score, which is why many people choose to go this route.
What Are Your Rights in a Foreclosure Proceeding in California?
Before initiating foreclosure, your lender should send you a letter listing the amount you need to pay, by a certain date, to avoid foreclosure. Your lender, or the company that services the loan for your lender, should also try to contact you to explain your options for loss mitigation, which is a process where you work out an agreement with your lender to avoid foreclosure.
In judicial foreclosure proceedings, you will receive a summons and complaint which initiates the actual foreclosure. In non-judicial foreclosures, you will most likely receive a Notice of Default (NOD). A NOD is filed at the county level and serves as the public notice that you are in default of your loan. After that, you may receive a Notice of Sale (NOS) which states that the property will be sold at auction, along with details regarding the auction.
Some states also provide mortgagors with a Right to Foreclosure Mediation, which allows you to discuss different options with the lender to avoid foreclosure.
Do You Need a Foreclosure Lawyer in California?
Because foreclosures vary so much from state to state, and because you are facing the possible loss of your home, it is a good idea to seek counsel from a foreclosure attorney that understands the process. They can help you navigate the foreclosure while minimizing your losses.
Other instances where a foreclosure defense lawyer is most beneficial include situations where:
- You have a loan backed by the Federal Housing Administration (FHA), which may qualify you for additional aid to help you keep your home
- You are an active or former military service member, which may qualify you for protection under the Servicemembers Civil Relief Act (SCRA)
- You want to keep your home but your legal options are limited, in which case a lawyer may be able to negotiate with the lender a positive outcome for you
- You think you have a valid defense, in which case a lawyer may be able to identify, support, and successfully argue on your behalf
Navigating the foreclosure process can be overwhelming in an already stressful situation. A foreclosure defense attorney can alleviate some of that stress and help find options you may not have thought you had.
Contact a Foreclosure Defense Attorney in California Today
At DiMarco Warshaw, APLC, we understand that sometimes bad things happen to good people, and we know that facing a foreclosure can be extremely stressful and frustrating. Contact us at 888-890-5474 or by filling out our online contact form to schedule a free initial consultation to learn how we can help you navigate a foreclosure.