Is there a requirement in California that the homeowner should receive notice just before a foreclosure sale or is a notice almost a year earlier sufficient “notice” to do the sale whenever they want? In other words, I was sent a breach notice; and then a foreclosure notice; and then a sale date notice a year ago, Jan. 2009. But I called my mortgage lender to work things out and they stopped the sale and put me in a hardship category but couldn’t do a loan modification because I wasn’t working and they told me to contact them when I had a job. Then Obama issued a moratorium on foreclosures for three months for properties bought during 2004 – 2006 or 07. This bought some time for me. Then that decree was done in August ’08. I got a job in late October. In the meantime, I kept getting monthly notices from my lender about the balance owed but no further notices about a sale. Then two days after Thanksgiving, a notice was posted on my door stating that a sale happened. No notice. A week later I got another posting of a three-day notice to quit. No further notice. Evidently the bank took my property back. I wanted to work it out with them. They have now filed an unlawful detainer complaint in court. I haven’t been served yet. My question is twofold: Aren’t they required to give me notice just before the sale (not ten or eleven months earlier)? Is there anything I can do to forestall the eviction and even get my property back?
There is no time limit on how long is too long for the notice, though there is time limit on giving enough notice. Each time the sale date changes, though, they must give new notice. So you have a defect in the sale. Since the bank took the property, you don’t have the problem of a good faith purchaser who took the property without notice of the defect. The problem you have, however, is that unless you are prepared to actually cure the default and either refi or come current on the loan, all the bank has to do is re-notice the sale and do it again. Do you really want to spend the attorneys fees to accomplish a delay of a couple of months? You might be a lot better off just asking for a “cash for keys” deal.
Timothy McCormick
Libris Solutions – Dispute Resolution Services
1990 N. California Blvd., 8th Fl
Walnut Creek, CA 94596
After the breach and default notices that started the foreclosure proceedings, you are then entitled to a [one] notice of foreclosure sale date with ‘default cure’ requirements and procedure. If you didn’t cure the default or obtain some kind of ‘deal’ from them in writing, the sale could go forward on that date, or be postponed at their discretion, without further notice to you. You may have a one year redemption right, exercisable by paying off the loan balance, accrued interest and foreclosure costs. If you could do that, you probably could have paid off the default and stopped the foreclosure.
Once foreclosed, the new owner can evict any occupants by following proper legal procedure. You have stated no defenses to an eviction. If you have any, you could raise them by filing appropriate pleadings in that case and defending on that basis at trial. You could try to negotiate a rental/lease agreement with the new owner rather than be evicted.
Terry A. Nelson
Nelson & Lawless
18685 Main St., #175
Huntington Beach, CA 92648