My bank has started the foreclosure proceedings and the notice of default and election to sell under deed of trust. I just realized I might be able to buy more time if I send a dispute letter saying I have not received any statements. I have to check exactly how long, but I remember calling once before and my mortgage company said they do not send the next statement until the current one is paid. I thought it was strange. Is there anything I can file with the courts or send to the foreclosure department?
Yes. You might be able to obtain an injunction from the court to stop the foreclosure sale.
In a California residential foreclosure, under the 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 – § 2923.5 concerns "crucial first step" in foreclosure process--i.e., recordation of 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)-- lender must provide borrower with HUD's tollfree 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 CC § 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.)
Frank W. Chen is licensed to practice law in the State of California. 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. For specific advice about your particular situation, consult your own attorney.
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