Insolveny Exclusion is that a specific CA law / statue?: Some real estate people say that even on junior mortgage liens ina foreclosure type of situation if your liabilities exceeded your assets--this makes you insolvent and the junior lien holders cannot go against you personnally since this is protected by "Insolveny Exclusion" Ever hear of such CA law?
Andrew’s answer:
This is not true. The insolvency exclusion is a tax exclusion used to avoid paying income taxes on the foregiven or canceled debt after a foreclosure or short sale. You can find out more on irs.gov.
A second lender cannot seek a deficiency against you after a foreclosure in the state of California unless the second lender can characterize themselves as a "sold-out junior lienor", which means that the first foreclosed, and left little or nothing left for the second lender. In order for the second lender to qualify, it must be a different bank than the first lender, and have done no act or omission to cause it to lose their security interest. (CCP 580d)
Additionally, if the second loan was used to purchase the property, then the second lender is also barred from seeking a deficiency against you after foreclosure. (CCP 580b)
After July 15, 2011, second lenders are completely barred from seeking a deficiency against you after a short sale. (CCP 580e)
These are complicated legal issues, and require a lawyers help, especially when going up against the banks who are loaded with lawyers themselves. Do not try this at home.
http://www.stilwellassociates.net/pages/service...
How to file for two Judicial Reviews - WRITs OF MANDATE on form CM-010?: It is a complex case. Appeal is impossible.
Andrew’s answer:
As stated above, do not try this at home. However, simply put, a writ of mandate requires three things (1) a petition for writ review; (2) a memorandum of points and authorities in support of your argument (this is the legal reasons why you should win); and (3) exhibits in support of your petition.
Beware, the Court of Appeals is a very formal place, and you need to know the rules, and follow their directions very precisely. Most pro per appeals are not successful simply because of failure to know the mountainous amount of rules and procedures. Best advice I can give is to get a lawyer you can trust, and knows what they are doing.
The bank refuses to recognize my prior first mortgage on the property. What can I do?: I have a first priority recorded security interest on some land in the amount of $500,000 that is prior to all other mortgages. The second mortgage bank claimed they have foreclosed and refuse to recognize my security interest and did not provide me notice of their non-judicial sale and have placed title on record in their name. Is there any other tort they are guilty of besides quite title? That is, can I sue them for anything else besides quite title?
Andrew’s answer:
In addition to quiet title, you would have damages for conversion, wrongful foreclosure, intentional misrepresentation, negligent misrepresentation, interference with a contract (deed of trust), as well as actions against the trustee in charge of the foreclosure. You will probably want to also seek declaratory relief, and constructive trust over the proceeds in addition to the monetary damages.
These causes of action are solely based off of the limited facts you have given, and may disappear with more facts or after discovery.