Legal Question in Real Estate Law in California

Our home has been foreclosed on for over a month and we have not received the unlawful detainer eviction summons. Which we want in order to respond to the court concerning the sale that sold 15 days after notice of sale while we were negotiating a modification with the lender


Asked on 2/17/10, 7:02 pm

2 Answers from Attorneys

You do not need to, and in fact should not, wait for them to try to evict you before you raise any legal claims you have about wrongful conduct of the foreclosure. The time limits for raising defects in trustees' sales are very short and have nothing to do with when or if they file an eviction proceeding. You need to get a lawyer and get an action filed that raises any defects in the sale immediately, or you risk losing your rights.

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Answered on 2/22/10, 7:08 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

A trustee's deed creates a conclusive presumption in favor of a purchaser at the foreclosure sale and cannot be set aside, after delivery to a bona fide purchaser, in the absence of fraud. Irregularities in the foreclosure proceedings do not generally amount to fraud. Civil Code section 2924h and cases interpreting it seem to be the governing law. If the trustee's deed is recorded within 15 days of the sale date, it is deemed "perfected" as of 8 a.m. of the date of sale.

Furthermore, a borrower seeking to set aside a trustee's sale may be required to show that he or she is ready, willing and able to pay all the money owed - principal, interest, penalties, fees and costs - as a condition (one of several) of rescinding the trustee's deed.

The fact that you were negotiating a loan modification with the lender is not a bar to the lender's carrying out a trustee's sale, or a ground for setting the sale aside, unless perhaps the lender had made a specific written agreement with you to forbear on the trustee's sale during negotiations. Maybe not very fair, but undoubtedly legal.

Bona fide purchasers at trustee sales are accorded very substantial rights to a presumption that they are getting a valid and clean deed from the trustee, and it is exceedingly difficult to recover property sold to a BFP.

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Answered on 2/22/10, 9:48 pm


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