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How do I collect the surplus funds from the foreclosure auction of my home?

Fairfield, CA |
Filed under: Foreclosure

The firm representing the foreclosure trustee has gone 2 weeks past the 30 time frame given to make a claim or to challenge the distribution, as proposed. What is my next step?

Attorney Answers 2

Posted

You might need to hire an attorney to get the foreclosure trustee's attention.

In California, following a non-judicial foreclosure sale of real property, if there are surplus funds after the amount owed on the note secured by the deed of trust is paid, the foreclosing trustee should petition the court to request that it be permitted to deposit the funds with the clerk of the court pursuant to California Civil Code sections 2924j so that the Court can make a determination regarding the disposition of the funds.

Once the Court grants the petition and orders that the funds be deposited with the court, the petitioner will be discharged from further responsibility for the disbursement of the sale proceeds. The Court will then set a hearing for the distribution of the proceeds.

California Civil Code section 2924j specifies the procedure under which a trustee who is unable to determine the priority of claims to surplus in a trustee’s sale may deposit those proceeds with the court and permit the court to make the determination. Under Civil Code section 2924j:

Within 90 days after deposit with the clerk, the court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled by the court, the clerk shall serve written notice of the hearing by first-class mail on all claimants identified in the trustees’ declaration at the addresses specified therein. The court shall distribute the deposited funds to any and all claimants entitled thereto.

Civil Code section 2924k specifies the following order of priority for distribution of the proceeds:

1) To the costs and expenses of exercising the power of sale and of sale, including the payment of the trustee's fees and attorney's fees permitted pursuant to subdivision (b) of Section 2924d and subdivision (b) of this section.

2) To the payment of the obligations secured by the deed of trust or mortgage which is the subject of the trustee's sale.

3) To satisfy the outstanding balance of obligations secured by any junior liens or encumbrances in the order of their priority.

4) To the trustor or the trustor's successor in interest. In the event the property is sold or transferred to another, to the vested owner of record at the time of the trustee's sale.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

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Keith Adam Halpern

Keith Adam Halpern

Posted

This is an excellent, detailed answer from an attorney who knows the law and procedures.

Posted

You definitely want to hire a California Attorney with the experience and knowledge demonstrated by Attorney Chen. It's important to stay on the collection of surplus as it's certainly time sensitive.

NOT LEGAL ADVICE--FOR EDUCATIONAL PURPOSES ONLY. We don't know the facts and this is not legal advice. Seek the advice of licensed property law attorneys immediately so they can secure your rights. Hiring an attorney is a serious and important decision. Please ensure that you take the time necessary to evaluate and interview more than one attorney to determine whom to hire.

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