Legal Question in Real Estate Law in California

Re: Notice of Default

To foreclose by Trustee's sale you contact a Trustee and let them handle it. To foreclose judicially you hire a lawyer. What follows is a sketch of the process of non-judicial foreclosure:

Should the security instruments contain a power of sale clause, legal requirements must be strictly followed. Non-judicial foreclosure generally must be carried out as follows:

1. A notice of sale must be: a) recorded in the county where the property is located at least fourteen (14) days before the selling date; b) sent by certified/registered mail, return receipt requested, to the borrower at least twenty (20) days before the selling date; c) posted on the property itself at least twenty (20) days before the selling date; and d) posted in one (1) public place in the county where the property is to be sold. The notice of sale must contain the time and location of the foreclosure sale, as well as the property address, the trustee's name, address and phone number and a

statement that the property will be sold at auction.

2. The borrower is given up to five days before the foreclosure sale to settle the default and stop the process. The auction may be held on any business day between 9:00 a.m. and 5:00 p.m. and must take place at the location specified in the notice of sale.

Re: Notice of Default

Doing a foreclosure yourself is risky business; I would advise using a lawyer or a professional foreclosure service. The requirements for a Notice of Default are set forth in Civil Code section 2924. Here is a sample template for creating a NOD:

NOTICE OF DEFAULT AND ELECTION TO SELL

[Name of beneficiary/mortgagee/trustee], as [beneficiary/mortgagee/trustee] under the [deed of trust/mortgage] executed by [[name of trustor]/[name of mortgagor]], as [trustor/mortgagor], [OPTIONAL: naming [name of trustee], as trustee,] and recorded on [date of recording] in Book [number of book], Page [number of page], Instrument [number of instrument], covering property described as follows: [description of property], in the County of [name of county], California, HEREBY GIVES NOTICE that:

1. A breach of the obligation for which the [deed of trust/mortgage] is security has occurred.

2. The nature of the breach is described as follows: [description of breach].

3. The undersigned elects to sell, or cause to be sold, the secured property to satisfy the obligation.

4. The following additional obligations secured by the [deed of trust/mortgage] are also in default: [description of obligations].

Dated: [date of notice]

SIGNED:

[[Name of beneficiary]/[Name of mortgagee]/[Name of trustee]]

As [beneficiary/mortgagee/trustee]