Legal Question in Real Estate Law in California
foreclosure
On April 2nd 2008 I received a notice of default on my house. It stated we had 90 days to be out of the property.We have moved out most of our stuff except for the main living essentials,bed computer,etc... We are still living in the house for now. The other day we came home to find a lock box on the front door, the deadbolt was changed and they shoved my rake in the garage door to prevent us from getting in. Im assuming it was the bank, is this legal for them to do without contacting us and breaking into the house and going through all the cupboards and our stuff
6 Answers from Attorneys
Re: foreclosure
Absolutely not. There are no "self help" evictions in California. The bank or new owner is required to file an unlawful detainer action to evict you. However, since you moved most of your stuff out, the bank or new owner may have reasonably believed that the property was abandoned. If such belief was reasonable, then you would likely be without a remedy. If such belief was not reasonable, then you likely have viable claims against them.
Re: foreclosure
After and Notice of Default is recorded, 3 months must pass until a Trustee Sale can be set. Unless some lawsuit has been filed, the trust deed holder cannot take possession of the property without your permission. Please call me if you have any questions.
Re: foreclosure
The foreclosure process, when done lawfully, starts with a Notice of Default, giving you 90 days to cure or face a trustee's sale. The notice of sale cannot be made until the 90 days has expired, and it must give you at least 21 more days, and for various legal reasons most sale notices give more than 21 days.
What happened to you seems to have been about 30 days after the notice, so perhaps it was a notice of sale and not a notice of default.
The buyer at a trustee's sale cannot do a self-help eviction, but if it reasonably appears that the property is abandoned, the buyer could take possession immediately.
So, unless two things are true: (1) it was a notice of sale; and (2) the house really looked unoccupied, i.e., not lived in; you've been illegally treated by someone, somewhere along the line. If on the other hand, both (1) and (2) are true, maybe the lender and the new owner have acted lawfully.
Re: foreclosure
Are you sure this was a notice of default, and not a Notice to Quit after foreclosure?
If it was a Notice of Default you should report the persons who did these acts to the police. They have no right to enter or otherwise interfere with your possession until the foreclosure is complete and they have a trustee's deed upon sale. Check with a title company to see if such a trustee's deed has been recorded. If so, see an attorney; if not, call the police and report what happened.
DISCLAIMER
This reply constitutes legal information for educational purposes and does NOT constitute legal advice nor establish an attorney-client relationship. I only represent people who have signed a written Retainer Agreement with my firm.
Re: foreclosure
In addition to what Mr. Moerbeek advises, the bank still would have to then bring an unlawful detainer action against you and obtain a judgment for possession for the sheriff/marshall to lock you out. I don't think we have the whole picture.
Re: foreclosure
No.
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