Legal Question in Real Estate Law in California

Re: can they take it away

I am providing a link to a short, sweet, and accurate discussion from a Bay Area attorney discussing homesteads.

You will be overmatched against the bank's attorneys, if you try to represent yourself.

Find, and retain, a local real estate lawyer ASAP. You are right. This is scary for you!

Re: can they take it away

Hate to break it to you, but you don't own your house anymore. The homestead declaration you filed would not have protected you (if you didn't see a lawyer before the foreclosure sale, too bad). You could ask the bank for maybe $500 in "key money" if you promise to move out quietly and not trash the place.

Re: can they take it away

You should indeed find this scary. I'm surprised the sheriff hasn't been around already.

First thing to consider is that filing a declared homestead is in no way a guarantee that you will be able to stay in your house, come hell or high water. What it does is set aside up to a certain maximum amount of equity as protected from levy. It puts your claim to anywhere between $75,000 and $150,000 of equity into a pecking order, ahead of future creditors and, unfortunately, behind prior liens you voluntarily placed on the property, such as the mortgage.

Further, doing a declared homestead with a notary is no assurance that the declaration was properly recorded. In order to be effective, timely recording in the office of the county recorder is necessary. Maybe you should contact the recorder in the county where your home is situated to make sure the declaration shows up in the official records.

One doesn't just "present" a homestead document at the moment of need. while it may be helpful to point out to a foreclosing creditor that a homestead has been recorded, the creditor presumably already would know this fro searching the records. If on the other hand your homestead was not recorded and doesn't show up in the records, "presenting" a document at this late date will be futile. It must have been recorded prior to the creditor's claim to be effective.

If your finances are now in order, I think the very first thing you must do is take $1,000 or so, maybe less, to a local real estate or unlawful detainer defense attorney in your community and ask the attorney to step in and save your home for you.

There are two general approaches that your new local attorney and you should go over. The first is negotiation with the creditor bank. Well, let me change my terminology. This bank is no longer a creditor; it seems to be the owner of what you call "your" house. In these horrible times for real estate finance, the last thing the bank wants is another foreclosed property in its portfolio. Maybe you and your new lawyer can convince the bank to let you repurchase on favorable terms.

I will complete my response in a second answer because LawGuru has a 3000 character limit.

Re: can they take it away

Here's the rest of my answer.

The other, less attractive possibility is that your new lawyer may be able to shield you from some of the cash damages at the same time you are evicted. In any event, you have to admit to yourself that the house has been lost and recovering it as your house is an uphill battle as you have failed to protect your interest (whether or not you were able to do so is less important) since at least three months before 4/2/07 (probably).

Insist that the attorney you hire be able to give you a clear and understandable explanation of the extent to which your declared homestead, coupled with the automatic or statutory homestead, does or does not shelter some of your equity (if you have any). If the attorney can't explain this to you in understandable terms, perhaps you should try another attorney. Most will give you 30 minutes or so free consultation, giving you a chance to see if this is someone you can work with comfortably.

Just remember, a declared homestead is not protection against liens that predate the recording of the homestead declaration.

Re: can they take it away

I neglected to send the link as mentioned in my earlier answer.

This is from a Bay Area attorney's website, and is simple and concise in explaining homesteads.http://www.wwlaw.com/homestd.htm