Foreclosure in California>Question Details

Rachel Wentw…, Other/Just Looking in Las Vegas, NV

Are lenders pursuing deficiency judgments in California?

Asked by Rachel Wentworth, Las Vegas, NV Thu Jan 29, 2009

If you have already been foreclosed or know someone who has, are the lenders pursuing any deficiency judgment? California law requires that lenders have 6 months from the date of foreclosure sale to sue for the deficiency, but from what I'm hearing the lenders are not aggressively suing. Have you or anyone you know actually been sued for any deficiency?

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12
No Jurisdiction — In addition to the legal steps you mention are State and City law that also require every Plaintiff to follow the regulations of various agencies.

Example - Holdover matter for an apartment that is not registered with the proper government agency.
Legal Errors — Sometimes a case may be dismissed because the landlord did not follow the laws or rules for bringing a proceeding.
Example - :The legal papers were not served to you in the proper manner, or information is missing or inaccurate in the landlord's Petition. HERE ANOTHER EXAMPLE:

We were granted the stay from eviction today on AN EMERGENCY appeal and request FOR hearing. Just within one hour of the court closing. Now for a third time, we go back court - xx x x LATE FEBRUARY x x x x x Hearing date pending ( subject went to sale in June 2008 / 30 day unlawful detainer served early October ).

You think I made this up like the LAST COMMENT (person) below suggests (how bizarre would that be).
Come on down TRACY SUPERIOR COURT and I promise you will see something you may not be accustomed to seeing in a court of law. Here is another victim of wrongful foreclosure , a mother and young woman fighting pro per . She is keeping the family spirit alive while she continues occupy the prinicpal dwelling and remain in the home.

If defendant prevails this matter will be dismissed … and that I assure you will be another site to see! . That’s it brother – I am through. We came back , and back again and we will come back again to prevail against the unlawful acts of predatory lending.

USA Fight back!

Sorry to take your arguments apart but . . . Hit me up for court docket
* Arujo v. WaMu Dismissed /
Without Prejudice superior court

* Bradley v. Duetshe Bank Dismissed /
Without Prejudice superior court Compton

* Spicer v. Duetshe Bank Dismissed /
Superior court Pittsburg

Peace Sean – nothing but praise for intelligent arguments and yours are without a doubt the best I have seen – Thank you!
1 vote Thank Flag Link Sat Jan 31, 2009
Two and a half years to a jury trial or 4 month ramrod to foreclosure - No I dooooooooooo not think sooooooooo!

No but borrowers will begin to push the Plaintiffs here and press the courts towards more and more judicial preceedings. 100% CLTV financing for a clerk - Stated income earning mninum wage and a 730 score. Thats a million dollar home someone sold our friend and that friend is a REAL PERSON JWHO JUST LOST HIS ESTATE. Deficiency What?

No Power of Sale here friends - fight back at the UD hearing and press for a rescission of the lenders foreclosure and attack the loan shark in a judicial preceeding where plaintiff waits 2.5 years to jury trial - (eat em up!)
1 vote Thank Flag Link Thu Jan 29, 2009
Deficiency judgments are pretty rare in CA as most lenders choose non-judicial foreclosure (trustee sale on the courthouse steps) which eliminates their ability to pursue a deficiency judgment.

The primary problem folks run into in CA is when the first mortgage forecloses and the second does not. In this case the seconds secured position in the property is wiped out, but the loan remains outstanding against the borrower. The second can then pursue collections against the borrow, with no need to get a judgment. The only exception here is if the second mortgage was used to buy the borrowers primary residence... so called "purchase money" loans have no right of recourse though some lenders still try to collect in the hope that the homeowner doesn't know all these rules.

Hope that helps.
1 vote Thank Flag Link Thu Jan 29, 2009
Typically NO. If is Fannie Mae's policy not to, except in cases where it is clearly collectable.
0 votes Thank Flag Link Mon May 2, 2011
Depends on your situation, but even in cases where they can, usually they are not. The left hand doesn't know what the right had is doing in many cases.
0 votes Thank Flag Link Fri Dec 31, 2010
Most of the answers here are mixing apples with oranges and seem to confuse people more than help, I know I'm confused! lol! You need to ask an attorney. This is a real estate site and you are asking legal and tax questions. Anyone other than an attorney or an account can't give you legal or tax advise or "we" realtors risk breaking the law by practicing law without a license.

Now, if you need to sell or buy a real estate that is when you seek a Realtor. That being said, This is what I know as a Realtor and Real Estate Broker for over 20 Years, if I was in this same situation, I would seek the advise of a Lawyer or an accountant not a Realtor. Laws and the real estate market changes all the time and as a Realtor it would be difficult to keep track of all the changing laws and the changing market that is why I don't answer these types of questions. I am not sure who all those who answered are and what legal experience they have but the only answer that made sense was Sean's. Sorry if my honesty offends anyone but I just get tired of hearing and reading bad info. If you need an Honest Realtor, please feel free to call me. If you need legal advise ask an attorney.
Web Reference: http://shortsalediva.org
0 votes Thank Flag Link Tue Oct 19, 2010
I've been reading the other emails and want to thank Sean for his imput. I have received a collection notice on a second mortgage loan that wasn't paid because of a forclosure last year. I do know that it went to trustee sale. Based on my reading, it seems that if the property goes to a trustee sale, the lender gives up right to a deficiency judgement, aside from the fact that the 1st loan was solely used to purchase the home. But I wasn't sure about the second loan, considering they were left with nothing at the sale and therefore have this amount outstanding. But after reading, its seems that if the second loan was also used to pay for the primary home (to complete the purchase price), then that also has no recourse. Hope you are right. I will be writing a letter to the collection agency with this in mind and see what they come back with.
If anyone else knows : I have a rental property that was refinanced a couple years ago. Not in forclosure yet, but am behind on payments due to tenants losing their jobs and not paying(for four months) . I'm trying to get a loan modification, but is taking forever. Now i'm trying to see if to just let it go, but am worried about the deficiency judgement and tax consequenced. If the original loan was 197K and my current loan after refinancing is 225K and we used the money for upgrades to the rental property, can this qualify as a deficiency judgement? I understand that if it goes to a trustee sale, then automatically doesn't, but if lender takes it to a judicial foreclosure, can we be liable and if so, would it be the differences between the selling price and amount owed, or the amount originally bought and amount owed now (28K).
0 votes Thank Flag Link Wed Feb 3, 2010
Dear Rachel, Just quickly scanning the answers you have received here, I believe you should seek the counsel of an experienced attorney.
Best wishes,
Michele
Web Reference: http://www.mpetersesq.com
0 votes Thank Flag Link Fri Jan 30, 2009
Thanks Sean and M. Soliman. Please see my follow up question regarding whether to settle a recourse second mortgage or let the lender pursue a judgment/collection. Thanks for your advice.
0 votes Thank Flag Link Fri Jan 30, 2009
M Soliman - interesting, though I struggle to believe your claims. Can you site some specific UD (eviction) cases? Court, Case#, Plaintiff, Defendant should be sufficient. Sorry for doubting you, but far too many people on the internet just make this stuff up.

Also note that non-judicial foreclosure proceedings were agreed to by the homeowner when they took the loan. I don't see how they can be biased against the homeowner - they have either made their payments or they haven't. If they haven't, and they fail to bring them current during the notice period then they lose the home. It's awfully simple. 120 days may seem short, but if they were honestly harmed by the lender, they have more than enough time to file a complaint to that effect and ask for an injunction on the foreclosure. Finally note that the average time to foreclose is nearly 160 days in CA right now, and that usually starts 3 to 6 months after the homeowner missed their first payment. As such your typical homeowner has 9 to 12 months to deal with the problem prior to the foreclosure - and typically a couple of months after that before the UD hearing.

Your idea that this can be rectified after the fact is not supported by the law as I know it, and it is dangerous to give homeowners the false belief that a UD case can fix something for them. If they have a genuine grievance with the lender, they should file their case before the foreclosure, and work to get an injunction to stop the foreclosure.
0 votes Thank Flag Link Fri Jan 30, 2009
SEAN,

YOUR ANSWERS ARE NO DOUBT BASED ON AN UNDERSTANDING OF JURISDICTION AND PERSONAL EXPERIENCES - SO ANSWERS TAKEN AT FACE VALUE.

BUT WE HAVE OR I HAVE RECENTLY HAD A NUMBER OF UD CASES DISMISSED. RESCISSIONS...WELL OKAY - I STAND CORRECTED! THEY WERE JUST DISMISSED.

A POWER OF SALE IS A NON JUDICIAL PRECEEDING AND BIASED TOWARDS THE OWNER OF A DWELLING AND HOLDOVER WHO UNLAWFULLY OCCUPIES THE SUBJECT.

THE OWNER IS ALLEGED TO BE THE PLAINITFF NO LESS AND MUST SHOW THIER STANDING IN A COURT ROOM.

IF THE OWNERSHIP IS IN QUESTION FROM A LACK OF JOINDER OR DISCONNET AMONGST ASSIGNEES ONE CAN MOTION FOR A TRIAL. WHAT ARE YOU SEEKING IN THE TRIAL ?

MOVE IT TO A JUDICIAL PRECEEDING. ITS A KISS OF DEATH TO A LENDER. THERE IS LITTLE LATITUDE IN THE COURTS SO A CAREFULLY PREPARED REPSPONSE USING LIMITED AFFIRMATIVE DEFENSES IS A MUST



Web Reference: http://www.foreclosurewebpage@wordpress.com
0 votes Thank Flag Link Fri Jan 30, 2009
M. Soliman - I'm not an attorney, but I have bought an awful lot of foreclosures, and handled my share of evictions. My observations are:

1. The judge handling the unlawful detainer (the eviction after foreclosure which M Soliman refers to as a UD hearing), can not rescind the foreclosure. That is not the matter before them. The borrower would have to bring a separate action. The law says that if the new owner has a valid trustees deed the holdover occupant has to go - period. Prior to what you may hear on conservative radio judges don't get to do whatever they want.

2. The borrower can NOT force the lender to pursue a particular course of foreclosure. It is the lenders choice alone.

Sean
0 votes Thank Flag Link Thu Jan 29, 2009
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