Legal Question in Real Estate Law in California

I had a first and second with Countrywide (80/15/5) Second was a HELOC. I later refinanced the second with B of A for a lower rate. B of A later acquired Countrywide in 2008. In 2009 I foreclosed on my property (non-judicially). I believe this meant that the second was "sold off". I have two questions:

- First, since B of A acquired CW, does CCP 580d apply to my situation?

- Secondly, If 580d does apply to my situation and does the lender have the right to collect and charge off my second lien (heloc)?

Thank you for your help.

Dan


Asked on 2/02/11, 4:34 pm

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

I think you mean that B of A foreclosed on your property (non-judicially) through a trustee's sale. Code of Civil Procedure section 580d provides that a lender cannot get a judgment for a deficiency on a note secured by a deed of trust or mortgage if the real property has been sold under the power of sale. (Code of Civ. Proc., sect. 580d.)

This does not apply to a sold out junior lienholder, however, whose security has been lost by a senior lienholder's sale. The sold out junior lienholder exception to section 580d, does not apply if the same lender held the junior and senior deeds of trust.

I'm not sure what you mean by the collecting and charging off. If you are being pursued by a collection agency, the collection agency may be pursuing a bad debt. You should contest the debt, and trigger the aspects of the Fair Debt Collection Practices Act.

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Answered on 2/08/11, 5:46 pm


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