Legal Question in Real Estate Law in California
Is there a way around a judicial foreclosure? The bank that is in second position on our primary residence which is upside down,has filed a judicial forclosure in order to get to other assets not attached to our primary residence.
2 Answers from Attorneys
I'm not sure what you mean get around a judicial foreclosure. The lender has an option of pursuing a judicial foreclosure, which is rare. If you have a loan secured by a mortgage or deed of trust on real property, and have defaulted on this loan, the lender has the right to sue for foreclosure.
Since you are in a lawsuit, and there may be a potential for a deficiency judgment, I urge you to speak as soon as possible with a competent attorney who has handled judicial foreclosure actions before.
Well, a judicial foreclosure is a "court case," subject to all the usual rights, privileges and delay tactics that any lawsuit defendant has, and a few more that are built in to the laws that apply specifically to judicial foreclosures. Judicial foreclosures are covered in the Code of Civil Procedure at sections 725a through 730.5, and may include claims for borrower fraud and waste as well as foreclosure and a deficiency judgment.
I suppose there are "ways around" a judicial foreclosure, using the term broadly. There are defenses, a right to pay up, and a built-in redemption period.
Judicial foreclosures are relatively uncommon in California, and your 2nd lender probably has a strong reason to have selected this process rather than foreclosure by trustee sale. Many judicial foreclosures involve quasi-mortgages where someone has collateralized a loan (such as a business loan) with their house, but the parties failed to add a power of sale to the deal terms. Therefore, I cannot give you much of an answer based on limited facts except to recommend strongly that you see a local real-estate lawyer for a consultation. You need to have an answer on file within thirty days of service of process on you, or the lender can take your default.
A final word of advice is that you shouldn't try to "protect" the "other assets" you mention by doing something like putting them in a foreign trust or making gifts of them to your children or you Aunt Minnie. Most states, including California, have adopted a version of the Uniform Fraudulent Transfer Act, which penalizes transfers for less than fair value with the purpose or intent to make life more difficult for creditors. See Civil Code sections 3439 to 3439.12.