Legal Question in Real Estate Law in California

our mortgage ($450,000) on our home is more than it's currently worth ($350,000?). we are presently both unemployed & are 6 months behind in our mortgage. husband is general building contractor & wife's employer filed for bankruptcy & closed business in Jan 2009. we have small inheritance coming ($200,000.) from my parents, can the bank take our inheritance or can we walk away from our current home and use our inheritance to find a place to live?


Asked on 11/20/10, 11:51 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

With limited exceptions, a bank that has lent money on a residential loan (promissory note secured by deed of trust) has recourse only to the collateral (the residence described in the deed of trust). Further, the usual foreclosure process is by trustee's sale, which precludes going for a so-called "deficiency judgment" for any shortfall between the amount due the bank and the selling price at foreclosure. The main concerns where the lender, or a lender if there are junior loans, has done a refinancing.

Your inheritance should not be at risk unless you have a non-purchase money second deed of trust, or the lender has other reasons to single you out for court action (such as doing damage to the collateral, loan-application fraud, etc.).

For a more complete answer, you might re-ask your question with particulars, such as whether you have only a purchase-money first deed of trust, or have refinanced and/or taken out a second mortgage.

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Answered on 11/26/10, 11:38 am

Mr. Whipple is correct. When and if a real estate lender can go after assets other than the property is a complex issue that turns on how many loans are in place, whether they were used entirely for the purchase of the borrower's primary residence, or if they were re-fied or HELOC's used for other things, and whether the lender forecloses by trustee's sale or court foreclosure. You would need to provide the details of your loans before a valid answer could be provided.

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Answered on 11/27/10, 1:12 pm


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