Legal Question in Real Estate Law in California

Re: Foreclosure: Eviction

Well, answering this question must begin with a careful review of the terms of the agreement you signed, which I guess would be called a forbearance agreement.

My hunch is that it that agreement, the mortgage company didn't agree to reisntate your loan, nor did they agree to withdraw their Notice of Default. More likely than not, the lender agreed only to forbear (hold off) on the foreclosure sale if you made those three timely payments, and then to give the situation a fresh look.

When you failed to make the three consecutive timely payments, you lost the benefit of the forbearance agreement (by breaching it), and the lender was then put back in its prior position, i.e., holding a defaulted note and having done everything necessary prior to foreclosure.

There is one remaining possible problem; it seems to me you should at least have been entitled to get a notice of the rescheduled sale date. While it is possible your forbearance agreement waived this notice, it is also possible you overlooked or disregarded it.

In sum, I'd think your chances of getting the property back, or damages for an improper sale, depend heavily upon (1) whether the forbearance agreement directly or indirectly gave the mortgage company the right to sell without further formalities in the vent of your default; and (2) whether you now have the funds to pay off your arrearages in full, with interest, costs and fair penalties. Even if the lender deprived you of a right to reinstate because it was hasty or didn't give notice, if you weren't and aren't in a position to cure the default, you probably would be operating under a severe handicap in trying to get the sale set aside.

Your chance to dispute the sale successfully would be greatly enhanced if you could prove a fraud on you (a deliberate misrepresentation is the starting point). I'm guessing however that the lender merely pulled the plug on you due to your history of un-kept promises.

Re: Foreclosure: Eviction

Yes. The bank is not a bonafide purchaser for value (BFP)and therefore is subject to all of your claims and defenses to foreclosure. If the attempt to evict you will have to defend the eviction and file suit agaisnt the bank to assert your claims and defenses. Don't forget to record a Notice of Pendency of Action so the bank cannot sell to a BFP.