California Foreclosure Question

[monkatom]

Just want to ensure I have this correct plus ask a question. In California (non judicial normally). So Once NOD is filled I will get a copy within 10 days. Nothing happens for 90 days from NOD then on day 91 or after they schedule a trustee sale that will be 21 days or more from then?
Please let me know if thats correct.

Now my question pertains to eviction. After the sale if someone buys or if it becomes REO how long until I get evicted any ideas? I know most say to be out by trustee sale but we are already packing and getting ready and we have not received the NOD. In addition we can live with my in laws so we will move stuff into storage before the sale date so when we need to move it will be clothes and a few items. Any ideas on how long we can stay after the sale date and when we will be pushing our luck?
Thanks

[GoFigure]

Just want to ensure I have this correct plus ask a question. In California (non judicial normally). So Once NOD is filled I will get a copy within 10 days. Nothing happens for 90 days from NOD then on day 91 or after they schedule a trustee sale that will be 21 days or more from then?
Please let me know if thats correct.

Now my question pertains to eviction. After the sale if someone buys or if it becomes REO how long until I get evicted any ideas? I know most say to be out by trustee sale but we are already packing and getting ready and we have not received the NOD. In addition we can live with my in laws so we will move stuff into storage before the sale date so when we need to move it will be clothes and a few items. Any ideas on how long we can stay after the sale date and when we will be pushing our luck?
Thanks

I am sorry to hear of your problem.

CA is a NON deficiency state as you stated under certain conditions only.

Your mortgage must be your ORIGINAL PURCHASE MONEY MORTGAGE. Meaning it was never refinanced. Your current loan must be the original loan that was recorded with your deed when you purchased.

If it was, then you will not be subject to a deficiency judgment. You need to vacate the home on or before the sale date. HOWEVER, you will be able to get "cash for keys" so do not move out of the home too soon.

You call the lenders loss mitigation dept and tell them that you are willing to move out of the home on the sale date. Ask them for "cash for keys". They will send someone out to the home, hand you $1500 and you hand in a set of keys. Just leave the home on the date agreed and you will be all set.

I am new to this site and I am not sure if I am allowed to post links to laws to help you.. There is also laws regarding the 1099-C which you will be able to claim a 982 deduction so you will not be held liable for the cancellation of debt.

[monkatom]

guess I should have explained my mortgages (two) were IIB therefore I am not liable just trying to see how long I can stay so I want to wait until they evict me if possible.

[GoFigure]

AFTER the sale date, they can take you to evicition court.

You will have notice to be in court. They can not just put your belongings out in the street.

They will need a court order.

You will have notice. It should take them 2 weeks to get you into court then it is up to the judge to see how much time if any he allows you. Your best bet is to show up in court so you know exactly what is going on.

[dingdong]

I was a tenant in a FC, so I lived it up until the day of TS.

If you haven't received your notice of default yet, you have 90 days at the very least from the NOD until the lender starts the FC process.


If your servicer is not the investor, they will most likely have to file an assingment of deed of trust with the county clerk recorder.

(If you know how to access the county clerks records online, it will help to know your tmeline a little better as the NOD should be recorded first before it is sent and the TS will also have to be recorded, so you would probably have a couple of days "heads up" on the noticing.)

Then they will start the publishing process of the TS. They have to publish for 21 days.

Then the foreclosing lender must record the new deed. After the new deed has been recorded, they can start the eviction process.

Banks here in CA are very busy and usually use a foreclosures -r -us type servicer to handle the mess. You will know who it is because it will be listed in the TS notice. You can actually call them and ask them questions on the status of the FC, they are usually pretty helpful and will tell you what they can. There is a company called TD Services here in Cal. that does a lot of FC, there are others also.

There is usually a bit of time between the notice of default and the publishing period. (I believe it was two weks for me, but that can vary by lender, they could start publishing the next day technically) There is also a little time ( at least there was for me) between the TS and the recording of the new deed. Once the deed was recorded there was a kind of eviction fore- warning letter taped to the door, stating the bank now owned the home and blah blah, staying is not an option, please call us, eviction is eminant. A few days later a BPO agent came by with a CFK offer.

I would highly expect you to get a CFK offer. There are way too many people trashing homes her in CA or taking all the "good stuff" from the property. It is much cheaper for a lender to offer CFK than fight an evction in court or have to do a trash out. If you are out of the house before the offer you will not get one. IF you are there, you most likely will. They will probably give you 2 weeks to 30 days to move. The shorter the duration, the better the offer ( typically)

You have to leave the property in broom swept condition, which is basically don't thrash the place, take all your crap, and don't leave any trash.

No deep cleaning, no carpets shampooed, just leave it empty w/o harming anything and sweep and leave the appliances that are attached to the house.

Sometimes you have to have your utillities paid up.

Good luck!

DD

[monkatom]

Thanks for the info. Yeah I have been checking the recorders office and no NOD yet. The lender also sent me a letter saying a law firm here in San Diego (Cal Western) will be handling my foreclosure so I am sure an NOD is coming soon. I plan to ride it out as long as possible and save. I am prepared to move withing several days since I have already been packing and getting stuff ready. I was also hoping for a cash for keys offer so thanks for the insight and advice on that.

[dingdong]

Just a little insight to add.

If their is anyone living in your home that is not a party to the note, for instance, if you have a roomate or relative that lives with you, they must receive 60 days notice to vacate.

The laws for tenants in California changed in July/08 to offer more protections to tenants duing the foreclosure crisis.

The process for eviction to parties on the note start with an unconditional 3 day notice to quit. If you haven't vacated the property by the end of the noticing time, the lender can start eviction procedure in civil court, called an unlawful detainer.

As a party to the note, you are not allowed a 30 day notice, although the lender may choose to give you 30 days or however long by mutual agreement.

Offering a longer noticing period may warrant a more peaceful ( and less costly for the lender) departure from the home.

If you do stay past the 3 day notice ( if served upon you) you may be liable for damages in civil court.

Lenders may choose to work with a former homeowner if they need time to move, just to avoid the litigation costs of eviction.

Especially if the home is in good condition and you are agreeable to allowing the real estate/BPO agenst access to the home.

Your CFK offer may be contingent on access to agents for showing,taking pictures/ refurbishing ( if necessary), but it may also allow you more time in the home.

[Martha13]

This is a very helpful thread, thanks. I have a ? along the lines of the CFK offer as well. We have moved into a rental, but are still maintaining the old house (all utilities, HOA, and yard maintenance). Though we have physically moved out with 99.9% of our belongings, we do still have some items at the old house, such as lawnmower, kids' outdoor toys, hose reel, etc.. Would we still be able to negotiate a CFK based on the fact that SOME crud is still there that we would need to move, and if we agree to broom sweep and not trash? Do they come inside to see what is there prior to negotiating the CFK? Thanks!

[dingdong]

This is a very helpful thread, thanks. I have a ? along the lines of the CFK offer as well. We have moved into a rental, but are still maintaining the old house (all utilities, HOA, and yard maintenance). Though we have physically moved out with 99.9% of our belongings, we do still have some items at the old house, such as lawnmower, kids' outdoor toys, hose reel, etc.. Would we still be able to negotiate a CFK based on the fact that SOME crud is still there that we would need to move, and if we agree to broom sweep and not trash? Do they come inside to see what is there prior to negotiating the CFK? Thanks!

The BPO agent may want to see the inside of the house, take pictures ( or have you take pics) and just do a general inspecction.

The offer may come taped to the front door.

They ( the lender) will want proof that someone actually lives there. Sort of as a safety precaution so that BPO agents dont move a friend in and "make a deal" with the friend for the CFK offer.

You can see how the situation may be ripe for manipulation/fraud on a BPO agents part. Not saying that they ( the BPO agent) would, but they do ask for proof that someone lives there.

Your moving out may have but a bump in your road to a CFK offer, or it may not have. IF the lender is simply trying to protect the asset from vandalism/or removal of items important to the homes sales integrity, they may offer anyway.

You just never know. You can pretty much count on the BPO already doing drive bys and taking pics of the outside of your home if you are already in the FC process.

IF it looks like you have already moved out, they may inform the lender as such and assume the house is unoccupied.

YMMV

DD

[monkatom]

If you do stay past the 3 day notice ( if served upon you) you may be liable for damages in civil court.

So I get a NOD, 3 Months Later I get notice of trustee sale that will be in 21 days then they hold the trustee sale. (assumes no bumps, etc)???

After house is sold are you saying I have 3 days and I do not move I will be liable or they start the eviction process and once taht is finsihed I have 3 days?

Thanks for all the insight I guess I just want to ensure I have the right timelines.

[dingdong]

Since you are not a tenant, you can be served with an unconditional 3 day notice to quit if you are no longer owner of record.

IF you were a tenant, you would get a 60 day notice.

As the former owner, once the TS has taken place, you are considered a hold over tenant, and the lender can sue for right of possesion.

UD actions move quickly through the courts, they are treated differently than other civil matters in California, and are calendered quicker and usually assigned to a commisioner rather than a judge. IF that is the case, and you find yourself in court, you may be able to reject the stip to the commisioner and buy yourself a few more days, really depends on calendering, the matter could also be heard that same day if there is a judge available with room on his/her calender.

You can answer the complaint and try and buy some time, but yes, if the lender serves you with a 3 day notice to quit, and you stay past the noticing timeframe, they can start an UD action against you. They can sue you for daily damages ( probably around the cost of a similar rental per day plus attorneys fees and filing fees).

Some lenders might be willing to work with you. IF you get to the point where you don't have anywhere to go, you might consider negotiating with the lender for more time.

There is also the possibility of a CFK offer, which might show up very close to the date of the TS completion.

Their goal is to get you out and get the house sold, but with the market the way it is, sales are obviously slow, if you state your case to the lender correctly, that you will keep up maintainance of the house and keep it presentable for showing and cooperate with the RE agents, you may be able to buy some time, you just never know.

I wish I could give you a more defnitive answer, but it really depends on the lender and the market where you are.

It would make sense to keep you there, to protect their asset, but it also creates a hindrance if they get an offer and there is still someone occupying the home.

You kind of have to play it as you feel it I suppose.

Your BPO agent may have more insight as to how quickly they move to evict.

[dingdong]

If you do stay past the 3 day notice ( if served upon you) you may be liable for damages in civil court.

So I get a NOD, 3 Months Later I get notice of trustee sale that will be in 21 days then they hold the trustee sale. (assumes no bumps, etc)???

After house is sold are you saying I have 3 days and I do not move I will be liable or they start the eviction process and once taht is finsihed I have 3 days?

Thanks for all the insight I guess I just want to ensure I have the right timelines.

Sorry I didn't address part of your question.


Here is what could happen.
TS occurs, the lender serves a 3 day notice to qut. IF you are not out by the date set by the 3 day notice, the lender can file a lawsuit in civil court called an unlawful detainer.

Once that matter is heard, (usually within 2-3 weeks), if the judge rules in favor of the lender, the courts will issue a writ of possesion, which the Sheriff will use to remove you from the home. I believe you have 5 days once the writ of possesion is used. IF you are not out by the end of the 5th day, the Sheriff will come and forcibly remove your items to the street and you will be most likely locked out by the lender.

There are affirmative answers to an UD action. If the lender did not use the proper process for foreclosure, you can answer the complaint stating such and you will have your time in court to assert your defense.

IF you were not served a 3 day notice correctly and in the proper format, you can use that as an affirmative defense. But you can generally expect the lender to file the paperwork regarding the 3 day notice correctly, as it is really a simple form and their attorneys are familiar with California eviction law.

Another thing to consider is you don't want to have an eviction on your CR. Not pleasant if you are trying to look for a rental.

[monkatom]

Yes I do not want the eviction just did not want to leave before the sale date only to have the place sit vacant and not get a CFK deal. I have heard sale dates sometime get cancelled and pushed back so I guess i will plan to move on the day or the weekend following the sale. Hopefully they will have alreday made a CFK deal.

[dingdong]

Good luck!

Hope ya get a big one! ( CFK offer)

[monkatom]

Thanks. It would be even better if I do not see an NOD for another 6 months as it will allow me to save a lot of money since my mortgage was 4400 a month.