Southern California Foreclosure Attorneys Experienced in Litigation and Loan Modification
Fighting hard to protect California homeowners facing foreclosure
Homeowners today face a variety of hardships that lead to mounting debt and the inability to make timely payments on their mortgages. Job loss or reduction in salary; unforeseen medical expenses; changes in loan terms, (for example, an adjustable rate mortgage); and divorce, separation or the loss of a wage earner may all jeopardize your home. Many homeowners do not realize that they are not to blame for such circumstances and that they often have options other than foreclosure. At Advocate Legal , our attorneys are dedicated to helping you understand your rights and your debt relief options in Los Angeles County and throughout California. With decades of legal experience, we fight to prevent foreclosure and other unjust or unnecessary actions by banks and other lenders.
What happens in foreclosure?
A default occurs when a borrower stops paying his/her mortgage, regardless of hardship or any other reason. Foreclosure occurs if borrowers don't cure their default by paying all their arrears plus late fees and penalties. Any time after three months (this varies by state), your lender will begin foreclosure and you will receive a notice of default or be a defendant in a foreclosure lawsuit. Whether you are required to come to court as a defendant, or simply receive foreclosure notices, will depend on whether your foreclosure is judicial or non-judicial. This will depend on the state you live in and whether your state operates under lien theory or title theory.
This type of foreclosure is an out-of-court process that occurs in title theory states and is not supervised by the court, but is controlled by statute.
In title theory states, the borrower gives up title to the property under a deed of trust, and the title is held in trust by the trustee who is a third party to the agreement until the debt is paid off. This third party trustee, under the direction of the lender, will utilize the power of sale clause in the deed of trust to conduct a non-judicial foreclosure sale.
An important benefit of non-judicial foreclosure is that lenders may not pursue deficiency judgments against borrowers for purchase-money loans secured by real property.
Non-judicial foreclosure is the main method of foreclosure in California.
This type of foreclosure occurs in lien theory states where the borrower retains title to his/her property, and a mortgage is considered a lien against the property.
In lien theory states, the borrowers have mortgages, not deeds of trust. There is no trustee, and the lender must sue the borrower in court to foreclose.
In lien theory states, the lenders are sometimes allowed to pursue deficiency judgments against the borrower.
In judicial foreclosure, the burden is on the lender to prove that he/she has the right to foreclose. These are states where the "show me the note" argument may be effective if there are breaks in the chain of title.
What is wrongful foreclosure?
Wrongful foreclosure is fact-specific and may be based on the lack of standing to foreclose due to a void assignment of the deed of trust, mistakes on the recorded documents attributable to fraud or negligence, or on statutory violations. Once a house is sold at foreclosure sale to a third party (known as a bona-fide purchaser), a wrongful foreclosure cause of action becomes one for damages, not possession. We help clients stop the foreclosure process whenever possible and retain possession.
Wrongful foreclosure includes loan modification abuse. This may also occur when lenders and servicers engage borrowers in the loan modification process by taking trial payments, by offering trial payment plans, or by promising modification and then breaching these promises.
California Homeowners Bill
The HBOR was enacted on January 1, 2013 to provide borrowers with significant additional rights before, during and after foreclosure including statutory damages when lenders commit statutory violations.
Your rights pre-foreclosure
California Civil Code 2923.5 requires a servicer to contact the homeowner about foreclosure alternatives before recording a notice of default. It also allows the borrower an opportunity to pursue some alternative to foreclosure. Homeowners may have many possible alternatives to foreclosure including: loan modifications, modifications under the Making Home Affordable (MHA) programs, mediation under a court-approved program, mortgage loan forbearance for temporary hardship, refinance, sale, short sale or deed in lieu of foreclosure, and/ or bankruptcy
Reinstatement after the Notice of Default
The business of mortgage lenders is not to do what is best for the homeowner but to maximize their own profits by systemically re-positioning your assets from you to them. With a knowledgeable foreclosure attorney you don't have to be victimized by the big lenders.