Foreclosure Defense in California

Are you currently facing a threat of foreclosure in California or are already going through proceedings? Consult with an experienced foreclosure defense lawyer to find out what your options are to save your home.

What Is Foreclosure?

The process begins when a California homeowner does not make a mortgage payment. California law dictates that a grace period of 10 to 15 days is extended to you once you default on your mortgage payment. You will be charged a late penalty by the lender once you clear up this breach or missed payment. If you do not, you will have 120 days from the default before the lender begins foreclosure. If after this time, the homeowner has not resolved the payment issue, the lender can begin to foreclose on the house. The home is sold to recover the losses caused by the owner being unable to pay their mortgage as stipulated in the mortgage contract.

Foreclosure By Power of Sale

The power of sale is a clause in the mortgage or deed of trust. It states that the lender can foreclose without court oversight. 

The Judicial Branch of California states that a lender must serve you with a letter stating that you are in breach of the loan agreement. They must also attempt loss mitigation, a process by which both parties try to develop a strategy to keep you on your current payment schedule. If you receive a notice of default, you’ll have 3 months to cure the default. If you do not, the lender will post a notice of sale. This notice must be posted at the property and in public, mailed to you; the borrower, and published once a week for 3 consecutive weeks. It is also important to note that the first publication must come 20 days before the sale. If the lender can prove that you meet these criteria, they can sell the foreclosed home.

Foreclosure By Judicial Sale

Foreclosure by judicial sale involves the sale of a mortgaged property under the supervision of the court. The court proceedings work first to satisfy the mortgage, then to satisfy the lien holders, and then to the lender. Foreclosure by judicial sale requires the lender to navigate the legal process carefully to ensure anyone who buys the foreclosed property legally owns the title.

Types of Foreclosure Defenses

If you’re in the process of foreclosure, you’ll want to do everything in your power to stop the foreclosure. Here are common foreclosure defenses your California attorney might recommend.

The Bank Didn’t Follow State Procedures

The foreclosure process is complicated and time-consuming; oftentimes, that leads to errors. If the bank or other lender didn’t follow California foreclosure procedures, you might have a good case for stopping the foreclosure.

The Mortgage Servicer Made Mistakes

It is possible for mortgage services to make mistakes when handling homeowners’ accounts. Here are some of the most common mistakes to look out for:

  • Dual tracking, which means pursuing foreclosure at the same time a different loan modification is pending
  • Sending your mortgage payments to the wrong party
  • Overstating the amount of money you owe for your mortgage payments
  • Imposing excessive fees for late payments that weren’t stipulated in the mortgage contract

If you think the mortgage servicer made these or other mistakes, contact an attorney in California right away to help you stop the foreclosure process. This is one of the best options available to help you save your home.

You’re on Active Duty

The Servicemembers Civil Relief Act (SCRA) provides special protections to people who are on active duty. This prevents lenders in California from being able to foreclose your home without a proper court proceeding. It allows you to provide a defense with the help of an experienced foreclosure attorney.

The main protection is if you took out your mortgage prior to being on active duty, the foreclosure proceedings must occur in court even if that is not the norm unless you sign a waiver for the lender.

The Foreclosing Party Lacks “Standing”

The foreclosing party is the party that owns the loan. If the lender can’t prove that they own the loan, then that means they lack “standing”. They then can’t foreclose the home.

This actually happens a lot because banks often bundle your loan with other loans and sell them to other banks or investors. This can make it difficult to track who exactly owns the loan for your house.

The Statute of Limitations Has Passed

The statute of limitations protects homeowners from foreclosure if a significant amount of time has passed since they stopped making their mortgage payments. Believe it or not, some mortgages or missed payments do slip through the cracks.

The California Department of Real Estate says there is no strict statute of limitations in California. Time frames vary for homeowners depending on the mortgage and the deed of sale.  Some properties have a statute of limitations extending 10 years, while other properties have some as high as 60. If you feel the lender has breached the statute of limitations on foreclosure you may want to seek out an attorney to help you in this matter.

Additional Foreclosure Defenses

Here are some less common foreclosure defense options:

  • You’re already making payments on a loan modification, which means the foreclosure should not have been initiated.
  • You believe the lender violated federal regulations if you have a VA, USDA, or FHA loan.
  • You never received a breach of contract letter from the lender informing you of the violation of your mortgage contract or deed of trust.

Preparing for the Foreclosure Defense Process

When an attorney takes on your case in California, it’s important to remember that there are no guarantees that you’ll win, but your chances just climbed higher. Each foreclosure case is unique and requires a deep understanding of your state’s foreclosure laws. A good attorney knows how to navigate the court system and will help you find any and all loopholes that can work to your advantage.

If you live in a state where foreclosures always happen in civil court, your attorney will simply bring any issues with the foreclosure up to the judge. If you live in a state where foreclosures typically happen outside of the court system, you and an attorney may have to start the judicial process by filing a lawsuit against the at-fault party. Even if you cannot stop the case, the attorney can help you stall the process while you get your affairs in order.

Work with an Experienced Foreclosure Defense Lawyer in California

Even if you feel you don’t have a viable case, an attorney may find solid grounds for fighting the foreclosure. Consulting with a California attorney is an objective way to find out if your case is worth going to court. Most first-time consultations with a lawyer are free, which means there’s no risk involved.

Take the first big steps toward fighting to keep your home. You can also delay the process for as long as possible until you find a new one. We can even help you connect with an attorney across California state lines.

Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!

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