Legal Question in Civil Litigation in California

Bad Faith Waste

My home was foreclosed upon through a non-judicial trustee sale. The 2nd mrtg. lender actually purchased the property at the sale. Now, they have brought an action against me for bad faith waste. They are seeking to recover damages for things that never even existed. For example, they claim I removed a swimming pool from the back yard and left only a hole in the ground. There never was a pool. I failed to respond to this lawsuit in a timely manner, and now a request for default has been entered. The reason I did not answer is that I was relying on a pre-paid legal srvc. who only delayed the matter asking for a large sum of money. I have asked the opposing attorney if they would stipulate to setting aside the default and they said no. There is a Case Mngmt. conf. scheduled next week. Should I attend the conference? Aside from retaining an atty., which I cannot afford right now, how do I go about setting aside the default and answering? I may also have a case against the lender. Would this become a part of this action by way of cross-complaint, or be handled as a seperate action? I know this is all above my head, but I really cant afford an attorney at this time.


Asked on 4/08/09, 1:02 am

3 Answers from Attorneys
Adam Telanoff Telanoff & Telanoff

Re: Bad Faith Waste

We all agree that you need a lawyer. Now, how do we get you one?

First, you need to file a motion to set aside the default, based on CCP 473. You need to show excusable neglect. This will not be easy, but is doable. Courts do not like to deny people their day in court.

Second, appear at the CMC. Tell the judge what is going on. Be concise and accurate. Tell how you relied on pre-paid legal and they did not help, now you have a default. The other side would not agree to set it aside, so you have filed a motion to set it aside.

Third, why do you think that you have a good claim against the lender? That may be the hook you need to hire a lawyer. Email me, I will see if I can help. Usually I represent the lender, but I may be able to help you this time.

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Answered on 4/08/09, 1:42 pm
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Re: Bad Faith Waste

I trust you took photos of the property as you left it. Do not get your legal advice from their attorney. You will have to promptly seek relief from default, send them a certified letter confirming your conversation of (date) refusing to set aside the default. You may have a case for unlawful debt collection practices. Sorry, no free lunch as far as your having to retain a lawyer.

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Answered on 4/08/09, 1:14 am
George Shers Law Offices of Georges H. Shers

Re: Bad Faith Waste

As you have stated, you are not able to handle this matter on your own. You need to find an attorney who will agree to some arrangement you can afford. You have a difficult case tha none of us can spend all the time to help you resolve without some compensation. You need to file a motion to set aside the default [look at Brown's book on Civil Procedure Before Trial], attend the conference, prepare an answer to file with your motion. Your claim against the lender might not be required to be filed as a cross-complaint but it is probably better to do so.

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Answered on 4/08/09, 3:10 am


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