Legal Question in Real Estate Law in California

2nd in default, 1st is current

I read a response by one of the attorneys here that said ''The second trust deed holder cannot put you in foreclosure if you are current on the first trust deed as to all conditions. ''

I am currently behind 30 days on my 2nd; I made one payment last month for Jan ... but, have not yet paid for Feb and March will be due on the 1st (which will put me 60 days behind).

They sent me a letter in mid-March stating to pay the full amount due (2 payments) within 10 days of date of the letter or failure to pay may result in accelaration of all sums due and commencement of foreclosure.

Of course, I made arrangement to pay ONE of the payments (I could barely swing just that but I'm trying to work with them).

I currently have a hardship application being reviewed with their Foreclosure Assistance Program. I have called twice and just today they confirmed that the application is being reviewed. I'm trying to be proactive and show them that I want to work something out.

Is there anything else I could/should be doing? Again, I am current on my 1st mortgage, which isn't with the same company as the 2nd? Can the 2nd initiate foreclosure if the 1st is current??


Asked on 3/28/08, 7:48 pm

3 Answers from Attorneys
Carl Starrett Law Offices of Carl H. Starrett II

Re: 2nd in default, 1st is current

The information you saw posted before is incorrect. If you get behind on the second trust deed, they have absolutely have the right to put you in foreclosure. Doing so can be risky if you stop paying on the first trust deed, but there is no legal prohibition against their foreclosure.

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Answered on 3/28/08, 7:56 pm
Lew Wiener Law Office of Lewis R Wiener

Re: 2nd in default, 1st is current

I don't know if you received bad information or misunderstood something- but the holder of the second can forceclose if you are behind in it.

I think you are doing the best possible thing by being proactive.

Most- but not all lenders will try and work things out with you if you are forthright with them.

Good luck

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Answered on 3/28/08, 8:53 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: 2nd in default, 1st is current

The premise is wrong. The second can foreclose and sell your interest but only subject to the first. As a practical matter this creates problems.

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Answered on 3/29/08, 9:37 am


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