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How long after nonpayment can a person file notice of default on a home?

Whittier, CA |

After two months of nonpayment, I received a notice of default. Is that legal? What is my remedy if they move to foreclose and served me with a premature notice of default?

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Attorney answers 3

Posted

It depends on way the terms of your loan are. However generally, there is no legal waiting requirement fur a other to record a notice of default, do long as you are in default of the terms of your loan.

You should consult an attorney regarding your situation immediately. There may be possible ways to save your property.

Contact my office if young like to discuss possible options. We provide a free consultation.

949 3335921

Attorney's response is not intended as legal advice and is intended for informational purposes only. Attorney's response does not create an attorney client relationship. Inquirer should seek the advice of a duly licensed attorney within that particular jurisdiction.

Posted

Notice of Default (NOD): The initial document (non-judicial) filed by a trustee that starts the foreclosure process, usually after the occurrence of a default under the deed of trust, or mortgage. Both LIS and NOD are part of the PRE-foreclosure process.

Lis Penden (LIS): Notification of pending lawsuit. The initial document (judicial) filed by an attorney or trustee that starts the foreclosure process after the occurrence of default under the deed of trust or mortgage. Both LIS and NOD are part of the PRE-foreclosure process.

Typically, these are done after three missed payments. Have you called the bank for clarification and verification? Perhaps they did not apply your last payment. In any event, it is best in these situation to seek skilled practitioners in your area and determine if the bank / entity foreclosing on you even has proper standing to foreclose.

you need to get ahead of the situation

More and more Plaintiff bank are pursuing a "duel track"

As always, individual cases may and will vary.

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

Virtually all foreclosures in California are non-judicial foreclosures, so there would NOT be a notice of lis pendens. See California Civil Code sections 2924 et seq. regarding the procedure in California.

Posted

It is possible but not likely under current California law.

Under California's Perata Mortgage Relief Act (Civil Code § 2923.5 et seq.), applicable to loans secured by owner-occupied residential real property containing no more than four dwelling units and recorded from January 1, 2003 to December 31, 2007, lenders (mortgagees, trustees, beneficiaries or their agents) may not file a notice of default until 30 days after (i) initial contact with the borrower; or (ii) satisfying statutorily-mandated “due diligence” requirements for contacting the borrower. (See Civil Code § 2923.5(a),(g),(i)--"owner-occupied" means borrower's principal residence "as indicated to lender in loan documents" (amended Stats. 2009, Ch. 43) (1/1/13 "sunset" date); Mabry v. Super.Ct. (Aurora Loan Services) (2010) 188 Cal.App.4th 208, 221 — Civil Code § 2923.5 concerns the "crucial first step" in foreclosure process--i.e., recordation of a notice of default.)

Before filing a notice of default, the lender must contact (or attempt to contact) its borrower in person or by telephone to assess the borrower's financial situation and explore options for avoiding foreclosure. During the initial contact, the borrower must be advised of his or her right to request a subsequent meeting and, if requested, the lender must schedule the meeting within 14 days. (See Civil Code § 2923.5(a)(2)-- the lender must provide the borrower with HUD's toll-free telephone number for purpose of finding HUD-certified housing counseling agency at initial or subsequent meeting; see also Mabry v. Super.Ct. (Aurora Loan Services), supra, 188 Cal.App.4th at 214.)

The trustee also must mail a copy of the recorded notice of default to the trustor (at his or her “last known address” if different from that specified in the deed of trust), parties holding an interest of record in the secured property who would be affected by the foreclosure, and all parties who have duly recorded a request for a copy of the notice and notice of sale (pursuant to Civil Code § 2924b(a)). (Civil Code § 2924b(b)(1),(c) & (e); see also Banc of America Leasing & Capital, LLC v. 3 Arch Trustee Services, Inc. (2009) 180 Cal.App.4th 1090, 1097–trustee has no duty to give notice to anyone except as specifically provided for by statute or in trust deed; Estate of Yates (1994) 25 Cal.App.4th 511, 521—522–executor/administrator for deceased trustor's estate also must be mailed notice of default when trustee has actual knowledge trustor is dead and estate is in probate.)

The remedy is to file a lawsuit and seek a preliminary injunction to get the lender to comply with the law.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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