Legal Question in Civil Litigation in California

Until the foreclosure sale actually occurs, you are still the owner of the condo, so entitled to collect rents from it. There probably is a clause in your mortgage allowing the lender to collect the rents while you are not current on mortgage payments ["assignment of rents"] but lenders normally do not invoke that provision. How long before the bank will foreclose is largely out of your control; B of A is known to sometimes wait 2 more or years. A guess would be at least about one year before any foreclosure occurs. As another attorney pointed out, you can file for chapter 13 bankruptcy which allows you to reschedule your debts [see quote below on how it works], but that would require you to still make some mortgage payments which I assume you have decided not to do. Once they start foreclosure by giving you notice, you could try to delay by filing for bankruptcy, suit against the bank for numerous reasons such as irregularities in the loan or its sale to others [but that will cost legal fees of perhaps a few thousand], argue a short sale, etc. That might not buy you much time.

Once the foreclosure sale has occurred, then you hare no longer the owner and have no duty to pay the HOA fees, but you are legally obligated to pay them until the actual sale happens. Remember that you are the owner until the sale occurs, not merely when the notice of foreclosure happens. You might want to read responses on this web site as to similar questions to gain additional knowledge as to what happens during and after the foreclosure sale.

If you have additional questions, I can provide a 10-15 minute free initial consultation. You might want to try attorneys B. Whipple and McCormick who are on this web site.

Chapter 13 offers individuals a number of advantages over liquidation under chapter 7. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Nevertheless, they must still make all mortgage payments that come due during the chapter 13 plan on time. Another advantage of chapter 13 is that it allows individuals to reschedule secured debts (other than a mortgage for their primary residence) and extend them over the life of the chapter 13 plan. Doing this may lower the payments. Chapter 13 also has a special provision that protects third parties who are liable with the debtor on "consumer debts." This provision may protect co-signers. Finally, chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a chapter 13 trustee who then distributes payments to creditors. Individuals will have no direct contact with creditors while under chapter 13 protection.

1. It depends on the lender. Foreclosures have been averaging about a year from the first missed payment, but as they clear out the backlog, things are moving faster with many lenders. The minimum time if everything is done as quickly as possible is a little over six months from the first missed payment.

2. You are only responsible for HOA dues while you own the property, but whatever dues are owed up to the moment the gavel falls on the foreclosure, will still be owed by you until paid. The bank or other new owner only becomes liable after the sale for dues incurred after the sale.

3. Mr. Shers mentioned the assignment of rents. Lenders never enforce that because it is an election of remedies, meaning they cannot foreclose while collecting rents. So the real world answer to your question is that the rents are yours to do with as you like until the foreclosure sale occurs. There are rent-skimming prohibitions, but they only apply for the first year after a new loan on a rental property.

If you need further advice or assistance, please feel free to contact me. I have conference facilities throughout the Bay Area.