Legal Question in Real Estate Law in California

Re: Court Order of Sale

Yes, the plaintiff's attorney can file such a motion. You can always seek to file an appeal bond to preclude a sale pending a determination of the appeal. You ask, "where are the defendants supposed to live?"--this is a foolish question, as no one has an obligation to provide housing for the defendants except the defendants themselves. With regard to a "court order of sale", likely they will not get a court order, nor will they even attempt, if there is no equity--but finding out whether there is any equity is the whole point of the appraisal.

Re: Court Order of Sale

If a bond was put upon the appeal then the judgment can not be enforced until the appeal is decided. If no formal Judgment has been entered then nothing can be done by Plaintiff. In California your primary residence is automatically homesteaded [I think the current amount if the first $85,000 of equity can not be touched by the judgment creditor]. If there is less equity than that in that in the home, write to the Plaintiff's attorney with proof of that and state you are judgment proof. they can move to execute on the judgment but you should be able to oppose it by pointing out the home is protected by homesteading [the mortgage is a lien superior to any judgment imposed after the loan was obtained].

Re: Court Order of Sale

The amount of the homestead exemption is set forth in Code of Civil Preocdure section 704.730 and, as I read it on first glance, can be $50,000, $75,000 or $150,000 depending upon your age and marital status according to the 2007 edition of West's Code of Civil Procedure.

Of course, plaintiff's attorney can file a motion, but will the motion be heard, and if heard, will it be granted? Within a period of time after final judgment, a trial court loses a substantial part of its jurisdiction, but frequently retains jurisdiction to enforce its judgment, if not jurisdiction to modify it.

In your case, you need to locate, read and understand Code of Civil Procedure provisions relating to the right of a judgment creditor to proceed against the debtor's real property, including his primary residence, whether or not subject to a statutory or declared homestead. The key provision is CCP section 704.780, which allows the court to appoint appraisers to see if there is any net excess equity that could be tapped by a creditor after insulating the homestead and prior liens from the creditor's grasp.

I would say the appointment of an appraiser is within the court's power, and the creditor's request for appointment is at least an acknowledgment that if the value of the property is insufficient to produce any cash the creditor can tap after allowing for the homestead and senior liens, then the creditor has no right to force a sale.

Where is defendant's attorney in this matter, asleep at the switch, or not providing you with answers you trust?