CA Court Site Info on Foreclosure

Saturday, February 16, 2013

Legal Research- Case Law-- Changes Frequently in California Cases

While the general process below may not change drastically (for non judicial foreclosure), case law is emerging over time, which indicates how courts view these foreclosure cases.

In CA, most courts are not amenable to issues involving "securitized" loans involving "MERS" and often will ignore MERS issues because the Federal Courts, with small exceptions, have basically found that MERS is not illegal.  However, sometimes upon very good proof where "robo-signing" is involved, and where perhaps other errors have come into the picture (such as the house was never listed for sale, or the process was completely ignored and the property taken illegally, etc.) it is possible that an actual lawsuit might result in the owner's favor.

•1.   Notice of Default: Foreclosure proceedings start with a Notice of Default (NOD). The lender (or trustee for the lender) files a Notice of Default with the county, after the propert owner (trustor) fails to make loan payment(s).  This is done to give constructive notice to the public which is required by law.  The owner may be delinquent anywhere from 15 days to 12 months or more.  After the recording of the Notice of Default the borrower and junior lien holders (2nd mortgage, etc.) are given proper notification and the borrower has at least 90 days to bring their account current with lender.  This time period is also referred to as the Reinstatement Period.
•2.   Notice of Trustee Sale: If the borrower does not reinstate their account (or obtain some other form of loan workout such as a loan modification) the lender can authorize and instruct the Trustee to record the Notice of Trustee Sale (NOS). A notice of trustee sale must be mailed by certified mail to the borrower, return receipt requested, 20 days before the foreclosure sale.  The Notice of Trustee Sale is recorded at the County Recorder's office in the County where the property is located at least 14 days before the sale.  It contains the date, time, and place where the auction (trustee sale) will take place.  This notice has to be published in a adjudicated newspaper in the city where the property is located.  The NOS is posted on the property as a requirement of law.  If access to the property is restricted by means of a central guard gate then the notice must be posted on the guard gate.  Additionally the NOS must be posted at on public place in the city where the property is to be sold at least 20 days prior to the sale.  The borrower may reinstate the loan (bring it current) up to 5 days prior to the trustee sale.

Day 1:  Notice of Default recorded with County Recorder.
Within 10 Business Days: Trustee mails Notice of Default to borrower(s) with the recording date.
After 3 Months: Set sales date, time and location unless a bankruptcy has been filed, or other event (loan modification) occurs that holds the timeline.
20 Days Prior to Sale Date: Public Notice of Sale.
14 Days Prior to Sale Date: Notice of Sale must be submitted to recorder's office.
5 Days Prior to Sale Date: Borrower's right to reinstate expires.
Sale Date: The property is sold to the highest bidder or reverts back to the lender (beneficiary).

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