Legal Question in Real Estate Law in California

After a foreclosure, is the "home equity line of credit" used as a downpayment on the house still due by the ex-homeowner?


Asked on 6/13/10, 5:24 am

3 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

If they foreclosed through a trustee's sale, through what is known as a nonjudicial foreclosure sale, and the property was security for the home equity line of credit (HELOC) then the lender cannot file an action in court to recover the difference between what the property realized at the remaining amount of debt. This is known as a deficiency, and a lawsuit to recover the deficiency is prohibited by Code of Civil Procedure section 580d. The lender is not prevented, however, from foreclosing on any other security for that same debt, if there was other security.

If they foreclosed by filing a lawsuit to foreclose, then I would need more information to determine whether the foreclosing beneficiary (lender) could or could not get a deficiency.

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Answered on 6/13/10, 9:01 am

Your question is rather vague, mainly as to whether the HELOC was the loan foreclosed on or not. If so, Mr. Roach's answer is correct. I suspect, however, that what you are saying is you used a main mortgage for most of the purchase, and a HELOC for the down payment, effectively 100% financing the purchase. Now the main mortgage holder has foreclosed and you are wondering if the HELOC is still owed. If the HELOC was used 100% for the purchase, and it was never paid down and then drawn again, AND it was never refinanced, AND the house was your principal residence, then the answer is no. You are protected by California's purchase-money anti-deficency law. If you do not meet all those critera, however, then the HELOC would now be an unsecured debt, collectable just like a credit card bill.

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Answered on 6/14/10, 12:22 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Also, it makes a big difference whether the HELOC was secured by the property that got foreclosed - which I think is less likely - or some other property. If the former, it became an unsecured debt, as Mr. McCormick describes. If the latter, it is presumably still secured.

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Answered on 6/16/10, 6:21 pm


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