Homeowners’ Rights During The Foreclosure Process

In this economy, losing one’s home to foreclosure is a scary but very real possibility. The very thought of it brings a state of despair and an overwhelming sense of helplessness. That being said, in many cases, a missed mortgage payment (or even several) doesn’t automatically cause you to lose all of your rights to your property.

The foreclosure process usually starts after a homeowner defaults (i.e. misses) on a loan or mortgage payment. That’s because most loans are secured by a deed of trust, a recorded agreement that generally includes a built clause stating that, in case of default, the lender has the right to proceed with foreclosure.

It’s not always understood that a similar clause in most mortgage agreements stipulates that even a secondary lender with secured mortgage interest can initiate foreclosure proceedings. So, for example, if you have three loans against your property, any of the three mortgage holders may have the right to foreclose on their respective loans if and when payments aren’t made.

But this doesn’t mean every lender starts foreclosure proceedings when a payment is missed. I’ve seen lenders go for years without foreclosing on a defaulted loan. Also, missing a payment doesn’t mean you automatically give up the right to live on the property. There’s no obligation to leave until you receive legal notice/court orders to vacate the premises.

Notice Of Default

In general, the foreclosure process starts when the lender serves you with a “Notice of Default” and files said document with your local County Recorder. While this can happen after the homeowner misses one payment, many lenders wait until after a couple of payments are missed. Since this document sets out your rights and responsibilities during the foreclosure process, it’s
important that you read it very carefully.

The Notice of Default officially notifies you that you have a right of redemption where you have ninety (90) days from receipt of the notice to “cure” (make yourself current on payments). This can include having to pay all the money in which you are arrears, as well as other allowable costs the lender may have incurred.

If you make yourself current, the Notice of Default is rescinded (withdrawn) and you’re back in good standing. If not, you face foreclosure on your property.

Sometimes a lender will accept less than the amount stated in the notice (on the principle that some payment is better than none). So there is always the possibility that you can negotiate terms with the lender and have the default notice canceled.

After Foreclosure Gets Underway

If you’re unable to make yourself current after the initial right-of-redemption period, the lender can post a Notice of Sale (as noted, not before 90 days have passed from the time the Notice of Default was issued). The Notice of Sale states that the lender (or “trustee”) can sell the home at auction within 21 days. As referenced on the California Courts website, the Notice of Sale must,
among other things:

  • Be sent to you by certified mail.
  • Be published weekly by a newspaper in the county where your home is located (for three weeks before the sale date).
  • Be posted on your property, as well as in a public location (for example, the local courthouse).

During this time, you can try to make up payments but the lender is not required to honor those payments after the right-of-redemption period have passed.

If Your House Is Sold

At the Trustee Sale, a buyer purchases the property and the deed is transferred to the new owner. This effectively makes you a “de facto” tenant. You can leave the property willingly or negotiate some other terms in order to stay. I’ve seen numerous examples of new owners entering into rental agreements with the prior owners that allows the prior owners to stay in the house. I’ve also seen situations where the new owner, wishing to avoid a lengthy eviction process, negotiates a payment to the prior owner(s) so that he/she/they will depart in a timely and peaceful manner, (otherwise known as “Cash for Keys”).

If you choose not to cooperate, the new owner can start the eviction process—which includes sending you a notice to vacate. Attempting to fight this in court can be difficult, time-consuming and expensive for both the new owner and the former owner.

Foreclosure is a complicated and occasionally highly emotional process. If you find yourself facing foreclosure, seek legal advice or assistance immediately. A skilled attorney can offer the best guidance for finding the solution that works best for you.

Are you in need of legal assistance or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation on a variety of issues, ranging from bankruptcy, debt collection defense, estate planning, family law, as well as DUIs and civil matters.

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