Please consult legal council. Though we may have the answers.......we are no permitted to answer this as a real estate pro.

There are no easy answers to this question. I have seen banks record an NOD after 2 months of non-payment on a house that is 50% upside down; and I have seen them wait a year on one that could have paid off the mortgage if they had moved quicker. The trend in the last year seems to be that they are becoming more aggressive with foreclosure. Perhaps others may know better why.

Procedurally, the only sure fire way is to get a court to issue an injunction (or TRO). This requires filing a lawsuit and a motion - typical cost may be $3000-5000. However, there needs to be a legal basis to do so and the burden is on the borrower to show that they are "likely" to succeed in the case. Bases can include an illegal foreclosure process (see Cal Civil Code 2923), illegal loan (ie. fraud or serious disclosure violation) or disputing the servicing or amount owed.

However, don't be fooled by any professional (legal or otherwise) promising the stars in this environment. The judges are becoming overwhelmed with these cases, many of which are filed by the homeowners in "pro per," and not prosecuted after the complaint is filed - resulting in a waste of time for the court. As a result, many judges are beginning to look disfavorably at these kinds of cases and will dismiss them or deny the TRO to get them off the docket.

A lis pendens recorded after the lawsuit is filed will not necessarily stop foreclosure, but in some cases, will provide some incentive for the bank not to foreclose if they otherwise wanted to sell it. A lis pendens will prevent any bona fide purchaser claim and taking title will be subject to the outcome of the dispute in court.

Always consult a legal practitioner in seeking to clarify or defend your rights. I would be better served staying off this question myself. But 20 years of secondary and capital markets has allowed me to move out of Wall Street onto main street.

Having spent two years inside law firm and having testified in these matters counsel who relied on me I have prevailed. Not I should I say but the testimony and arguments given to counsel. If you have a lawyer that can comment on the subject you will be a well sought and highly desire name on the internet. This scene is played out every day and is unfortunate. Mortgage backed securities offered domestic and international investors in exchange for yields based upon high cost predatory loans. Want to beat the system - don't call me. Want to know if your rights under the lenders security you gave them were circumvented - read the trust indenture (on line SEC) and GAAP criteria as administered by the Federal Accounting Standards Board. Want a modification or allow a realtor to conduct a Short sale. . . .You know what the odds are of the last item of mention here.

See my blog here on Tulia

I agree with Tada.




js

Any Agent who answers this question is putting themselves in legal danger. A real estate Agent SHOULD not claim to be able to "help stop a foreclosure." Contact an appropriate legal professional for an answer to this question.

I know this will seem really far fetched, but you could try paying the money you owe... Contact your bank, pay the amount you are in default.... Why would you want to stop the trustee sale, if you aren't going to be able to keep the house? just gaming the system to keep it a bit longer? if so, you have remarkably low morals.

THIS IS THE TYPE OF RECKLESS AND SELFSERVING VEIW FOR ONLY SOMEONE OTHER WISE HAVING THEIR HEAD BURRIED IN THE SAND. THE OBLIGATION WAS NEVER BROUGHT INTO QUESTION WITH THIS LEVEL HEADED QUESTION.

ITS THE DEED OR SECURITY THAT IS ASKEW HERE AND SUBJECT TO CHALLENGE. IF THE LENDER IS UNABLE TO PERFORM UP TO PAR IN A REGULATED ENVIROMENT THEN FIND THE DEFECTS AND HOLD UP THE SALE. YOUR DO NOT EVEN KNOW WHO THE PARTIES IN INTEREST ARE TAKING YOUR HOME. CONGRESS PASSED 30 YEARS OF LEGISLATION FOR THIS ONE PURPOSE.

Confer with an attorney OR contact the lender in most instances bank truly does not want your property returned try work out those issues.

Good luck

National Featured Realtor and Consultant, Texas Mortgage Loan Officer, Credit Repair Lecturer
Follow me on Twitter: http://twitter.com/Lynn911
Lynn911

http://www.lynn911.com

most of the advice on this thread is wrong, some is immoral and unethical.
filing bankruptcy will not delay the sale too long if the bank is active in removing the home from the bankruptcy
submitting a low fake short sale offer is unethical unless you truly have a short sale buyer.

The usual practise is to file for bankruptcy. Find a real estate attorney who an advise you and deal with short sales. He will be able to give you an idea of what it will takle to slow down the process.

Lenders know that many homeowners will file bankruptcy because attorneys advertise so heavily and the homeowners do not understand the legal process. When the lender gets notice that a bankruptcy has been filed by the homeowner, they immediately instruct their attorney to petition the court for its release from the bankruptcy filing. A special hearing will be scheduled so there may be a few days delay in your having to leave your home. However, when the court hears the lender's petition to release the home, the court will approve it. Now the homeowner has a bankruptcy to contend with, and his home will be back on track to be foreclosed on and later sold by the lender.
This "simple fix" is not so simple.

Dear Four,

Find an attorney and file "Bankruptcy" ASAP or prior to trustee sale date.

I've had clients attend the hearing that preceeds the sale and ask for an extension when the bank was unwilling to postpone the sale. More often than not, they've been granted an additional 60 days if there had been no prior postponements.

I am not a lawyer and would never give legal advice, but I personally have submitted a low investor offer to the lender. Once they have an offer on their records, and you need to call every 24 hours and sometimes fax the offer multiple times to make sure they get it, they may postpone the sale. It must be a REAL offer, i.e. your investor must really be willing and able to purchase it at that price. It is not always an offer high enough that I expect the lender to take it, but it is a real offer, and that is usually enough to get them to postpone the sale. I also ONLY do this if I already have a listing agreement and I am in the process of helping the owner sell the property; usually a short sale. That way, I'm not getting it postponed just to see it go back to auction the next month.

Four,
Are you a homeowner? Is the property for sale (short sale?) If so, your agent can request an extension with a workout negotiator with your lender until they can give you an approval. Also, are you trying to do a loan modification? You probably need to give us more information so we can help.

Charita King
562-276-8681
Century 21 My Real Estate Co.

Christina,
Thank you.
I believe Realtors and others need to commit to memory the following phrase; "In my humble opinion." Supported with, "I am of course not offering any legal advice."
Further, I'm amazed at how many will actually violate their own Code of Ethics by solicitng people, in wiriting, who have clearly mentioned they are working with an Agent and are simply asking a question.
http://www.realtor.org/mempolweb.nsf/pages/code

I realize honest professionals are at a competitive disadvantage. Our non-profits goal is to level the playing field and promote only those professionals who are willing to set themselves apart and be held to the highest standards.

Did anyone take into consideration that the minute you gave advice "as a professional" on how to stop a trustee sale....you broke the California Foreclosure Consultant law (passed July 1st 2009? FYI - $25,000 per incident in convicted. Just be careful you never know who is asking the question.

The Agent Center

If that's all you're trying to do...is postpone the trustee sale. All you have to do is call the bank and request that the date be postponed. I do it all the time for my clients. I have successfully delayed trustee sales several times for the same properties and effectively delayed sales for literally months.

You can fight the lender and not lose your home at all. Would you rather Foreclose, short sale or keep your home.

If you received a home loan or have refinanced over the last
seven years, there is a very good chance you have been a
victim of predatory lending!
This means that in the process of getting a home loan or
refinancing your home, your lender caused you financial
harm and placed you in a loan that violates your rights under
Federal and/or state laws and for which you are now entitled
to seek justice.
Although your current mortgage situation is unfortunate, the
opportunity to challenge your mortgage and hold your
lender accountable for past actions and misconduct is great
news!
Loans must be legal to remain enforceable by the lender. Loan
Violations are serious offenses of Federal Consumer
Protection Law and lenders may face stiff fines and legal
consequences for breaking these laws.
A Forensic Mortgage Audit determines violations of the laws
governing lenders. An audit report provides a powerful tool
for negotiating with your lender.

If you want to know how to get started email me.

I know this will seem really far fetched, but you could try paying the money you owe... Contact your bank, pay the amount you are in default....

Why would you want to stop the trustee sale, if you aren't going to be able to keep the house? just gaming the system to keep it a bit longer???? if so, you have remarkably low morals.

BK . . .Stops it dead in the tracks. Ask an attorney to set still the matter for 10 days for avoiding a lawsuit.

There are several ways to postpone trustee sale.
1. File Bankruptcy.
2. Call Lender ask for Loss mitigation unit & give them your financials.
3. Go for short sale.
4. Give lender deed in lieu of foreclosure.
5. Loan modification.
What you should do will depend on individual circumstances.

The best way is for your to contact your lender immediately. Ask for thehome retention department. Tell them your scenario and ask what they can do to help. You do not need to pay anyone where you can do this yourself. If you have the ability to make any sort of monthly payments ask them about a loan modification of forebearance. If you have no ability to pay ask them about a short sale and if all fails ask them about deed in lieu of foreclosure. Good luck with working things out.

You can certainly complete the short sale process to sell your home. Don't wait until it's too late to get the process started. We get scared and we do nothing but there is always a solution to your situation you just have to inquire.

You can always hire an attorney to postpone the process as well. They have their fees associated with that but if you get started quickly when you know there is trouble, you can avoid going the attorney route.

There are two basic ways to quickly postpone a Trustee Sale... One is to pay an upfront retainer (around $3,000 to $5,000) to a Bankruptcy Attorney who can immediately file Bankruptcy for the homeowner. One needs to determine what their financial end goal is for this has other serious financial ramifications. One should consult a good Attorney to determine if this is the best option.

The other approach, is to contact an experienced Short Sale Real Estate Broker and have them conduct a Short Sale. A Short Sale is less damaging to ones credit then a Foreclosure, or Bankruptcy, and can often times remove all debts associated with the subject property. Can also often terminate debt associated with a HELOC loan, when a Foreclosure will not. Make sure you work with a seasoned Short Sale pro. For more details, visit us on the web at ShortSalesASAP.com

Exactely what is; "attorney based"? According to the State Bar an attorney must be in the modification business as their main scope of practice and their "assistants" must be in their location and supervised.
Most in the business of modifications are not following the State Bar's own regulations.
I'm sure all who have or will respond here are in compliance, but if you are a consumer, be warned. The crooks out number the good guys by a overwhelming margin.
For those who cannot afford an attorney, Springboard is having a great deal of success in helping homeowners in trouble and they are free to the public. Questions? http://www.freehomeownershiphelp.org

As a real estate broker in California and working with a loss mitigation expert the best way to postpone the auction is to either have an offer on the property or deal with a reputable loan modifcation or loss mitigation expert that is attorney based and depending on the circumstances and who the lender is, they might be able to postpone the auction even if it is near the date of auction.

Holy crud, who the heck is Lynn?
Lynn, if you have had actual success, please contact me as our non-profit does homebuyer education backed by local government and we are rolling out a certification for professionals. I'm interested in knowing more about you, besides your willingness to give such a detailed explanation!
chris@thesorensenteam.com

Pretty good answers so far - especially from lynn.

As an attorney and a real estate broker I see two major options.
If have received a notice of sale you should investigate both options at once.

Make sure you find a lawyer who is willing to file a suit in the appropriate court house. (if necessary)
Make sure the lawyer can show you some recent successes.
Ask him or her his fee.
Ask him or her how much lead time he or she needs
Know what you will be expected to produce and do.
While you are speaking with an attorney you may wish to determine whether you have recourse on non recourse loans.
Find out your downside. Will you owe the first lender for the deficiency after a foreclosure? Probably not, but be sure. Will you owe the second lender? You probably will if you have recourse loans.
You also may find out what you exposure is to taxes after a foreclosure
Finally you may find out how much you will owe the lenders after a short sale.
(note: many lenders do not release the deficiency).

Negotiations

If you have some time before the foreclosure date.
You can then determine whether you should consider a short sale
or Loan Mod or a Forbearance.

Many lenders will take foreclosure sales off calender if you put a complete pre-foreclosure package in front of them. Some even take partial packages and some will take down your info over the phone and then give you a decisions within 24 hours.

However, I advise everyone to avoid last minute negotiating. At some point in time it may become too late.
Finally, if you do get a postponement of the foreclosure sale make sure the trustee takes the sale off their calendar.

John McConnin, Esq.

I do it all the time, many of my clients are referred to me with this exact predicament and I have been successful in stopping every single one. In most cases they are losing their homes due to financial hardships where there is no/ to little income and they have exhausted the possibility of a loan modification. I have investors ready to make offers on any listing I take, we quickly package up your file and get an offer into the bank and request the sale to be place on hold till further notice. It's a challenge but with the right team and full cooperation it can be done in most cases! Remember banks want to minimize their losses and a short-sale saves them a great amount of cost therefore if they feel they can sell it as such, they will exhaust their efforts to do so.

Part Two:

Alternatively, the transferor may indorse the instrument in blank, and thereby make it enforceable by anyone in its possession (much like paper currency). See CComC § 3205(b). Bottom line, did the Servicer possess the note or where they acting as an agent for the entity possessing the note? And if so, was the note either endorsed to the Servicer or its Principal, or endorsed in blank?

If the servicer meets these two requirements, then it has the ability to enforce the note and foreclose. Again, it all depends upon POSSESSION and ENDORSEMENT.

3-301(b), Nonholder in possession of the instrument who has the rights of a holder: Was the entity filing the Notice of Default and subsequent actions, in possession of the Note, without endorsement, but with Holder rights? Typically, this occurs where a note was transferred to a new owner pursuant to a purchase and sale agreement, but without endorsement. In other words, the new owner obtained possession of the note pursuant to a valid purchase and sale agreement, but for some reason or another, the seller never signed off and negotiated the note through an endorsement. In that case, the new owner meets the possession requirements of 3-301 (a) and (b), but is not considered a “Holder” by reason of CCC 1-202(b)21 to qualify under CCC 3-301(a) due to the lack of endorsement, but nevertheless has the rights of a holder due to the purchase and sale agreement. In this situation, a prudent debtor would demand inspection of the purchase and sale agreement to confirm whether the alleged owner has the “rights of a Holder.”

Only when the underlying enforceability issues of the Promissory Note are established, can an entity then look to any Deed of Trust which is only an accessory security interest which then gives rise to a foreclosure right. Most lenders miss the forest between the trees at this stage, and just assume that since the Deed of Trust was assigned to them, they can automatically foreclose.

But the Deed of Trust is only incidental to the underlying Promissory Note. It has no effect without the note. It is legally impossible to foreclose on any real property without the Note. The Deed of Trust is a legal nullity by itself, and means nothing without the note. These lenders entirely skip the underlying enforceability of a foreclosure which only arises upon actual Note possession and proper endorsement/obtaining Holder rights.

So if you are facing foreclose, you may wish to demand inspection of the original note. Even if the note is produced, then demand proof that possession existed when the Notice of Default was entered. And even if possession existed properly at all times, endorsement and negotiability must be proper and timely. When was the note endorsed? Who was it endorsed to. Is there an agency relationship between the foreclosing agent and endorsee? Is the endorsement in blank? If there is no endorsement, is there a purchase and sale agreement that gives Holder rights, and did it exist prior to the Notice of Default?

As always, seek a competent attorney that will investigate these issues if you are having any doubts as to the enforceability of a foreclosure proceeding you are a party to.

Part One:

In a typical foreclosure, ABC Company, the last entity the borrower was paying, simply contacts its foreclosure company to issue a Notice of Default and move forward with the foreclosure process. Everyone seems to assume that ABC Company has the ability to foreclose in the first place since that was who the borrower was paying recently and who the borrower may have received a notice that their loan was “sold” to.

Because of these assumptions, most lenders, attorneys, and borrowers altogether skip or completely assume the negotiability requirements of UCC article 3 have been met during all previous transfers of the promissory note, and jump straight to the UCC article 9 security interests issues.

Check your Deed of Trust and Promissory Note. Chances are that XYZ Company is the original lender, not ABC company, and you simply received notice that your loan was sold some time ago. But keep in mind what really took place. Chances are, in today’s securitization market, that your note was securitized in a pool with other notes to a Trust, that was then sold to a substantial number of investors on Wall Street.

So in effect, even though XYZ originated the note, the note eventually concluded its transfers and now resides in a Trust. Or, as which often happens, the Trust owns the note, but somewhere along the note transfers, the actual possession of the note never made it to the Trust.

So in this example, we will assume that New York Bank is the Trustee now owning the note in the ZZZ-1234 trust. Whether New York Bank actually possesses the Note is a different matter. And since possession allows enforcement rights, it is possible that New York Bank may own the Note, but has no ability to foreclose.

In a perfect world, the transfers were all proper and New York Bank as Trustee of the ZZZ-1234 Trust has the ability to enforce the note and foreclose if payments are not made. Nevertheless, Trustee of the Trust does not service the note. Instead, another entity services the note. Sometimes, it may be the original party that originated the note, such as XYZ company in this example, and the borrower thinks they had the same lender the entire time without knowing their loan was sold.

Often, however, is that the servicer changes and the borrower concludes that the new servicer owns the note. Again, this is not true since the Trust owns the note and the new servicer is simply servicing the note on behalf of the Trust. Then, when a foreclosure action is started, another entity usually enters the scene since the Servicer typically hires an outside foreclosure entity to conduct the Trustee sale, such as ReconTrust, Quality Loan Servicing, etc.

The confusing transfers of the Note should also not be confused with the Deed of Trust filed with the County Recorder, and any of its subsequent transfers and assignments. While the underlying Note is the genesis to any enforcement issues, the Deed of Trust is merely an accessory to the underlying note, and only provides rights to the collateral real estate if payments are not met. The Deed of Trust is meaningless without a Promissory Note. Indeed, case law is well defined in California, that a Deed of Trust without the underlying note is a “Legal Nullity.”

Remember, that the entity that is attempting to enforce the note is the Servicer. So that means that either the Servicer actually has the ability to enforce the note under CCC 3-301 or that they are the agent of the entity that has the ability to enforce the note under CCC 3-301. Assuming that the Trust (in this example ZZZ-1234 Trust with the New York Bank as Trustee) owns and possess the note and that the servicer has a valid agency relationship, we now come full circle to whether New York Bank is in compliance with CCC 3-301.

For New York Bank to institute a valid foreclosure proceeding, they must be able to establish compliance with CCC 3-301, at commencement of the foreclosure proceeding, the recording of the notice of default, and throughout the proceedings until sale date. So then the following most basic requirements of CCC 3-301(a) or CCC 3-301(b) must be met:

3-301(a), Holder of the instrument: Was the entity filing the Notice of Default and subsequent actions, the Holder of the Note the entire time? This analysis turns on transfer and possession, and under California law, there are two requirements for a person to qualify as a Holder:

(a) ACTUAL POSSESSION: the person must be in actual physical possession of the instrument, and

(b) TRANSFER BY ENDORSEMENT: the instrument must be payable to that person where the transferor must indorse the instrument to make it payable to the transferee See CComC § 1201(20); See CComC § 3205(a);

There’s a company called Home Solution they can stop the trustee’s sale on your home and help you gain extra time in your home as well. They were able to help me and I’m sure that they can help you. The number where they can be reached is (951) 715-3113 or you can email them at homesolution@consultant.com

I got just one postponed the day before the trustee sale, but it takes some quick, intense work. Is the house listed for sale? Has there been any communication with the bank yet? Are you the buyer or the seller? Who is the bank? Some are quick and some are sloooooow. With a little more info, we might be able to provide answers.

If you can get an offer on your property and communicate with the bank, they may stop the forclosur process.
Joan Wilson

Dear Four,

If you are the owner of this property, you may want to consult a real estate attorney who will be able to file a motion to set aside the trustee's sale or who may be able to provide you with alternatives that may postpone the sale and can offer you legal advice. If you would like a referral, I suggest you contact the All American Loss Mitigation Group, via their website. http://www.aalmg.com/ They have attorneys on hand, who will be able to speak to you and perhaps even help you.

Good Luck

Dear Four, Your question did not say if you are an owner of the foreclosed property or a buyer trying to purchase the property. If you could share some more information I could give you some answers.