Legal Question in Real Estate Law in California

Re: Notice of Default

No, once you record a Notice of Default, you do not have to follow through with the foreclosure. In California foreclosure by trustee's sale is regulated by statute, and once the minimum statutory period for recording the Notice of Default has elapsed, then you must record a Notice of Trustee's sale. It is important that you carry out these procedures properly, that you susbstituted yourself as trustee, that you send the requisite copies to the necessary parties, etc. With regard to how long you can wait before enforcing this obligation, there are a number of factual matters to consider and you really need to see an attorney to give you an idea as to whether you are approaching a statute of limitations. Generally speaking, you must bring an action to enforce the obligations of a party under a written obligation within four years of the breach.

Re: Notice of Default

You do not have to sell. Actually, you must take the next step, which is to file and serve a Notice of Trustee's Sale. The sale can take place 21 days later.

If you do not act on your notice of default within a reasonable time, you would need to start the process over.

Re: Notice of Default

After a Notice of Default is recorded, a Notice of Trustee Sale must be recorded among other items. As you are a beneficiary, you do not have to sell the property. There are numerous senarios, please contact me for free consultation at 714 363 0220. See also my web site - www.larryrothman.com. The Trustee named on the Deed of Trust or substituted in as Trustee must be an expert in that field as there have been numerous lawsuits due to wrongful foreclosure actions.

Re: Notice of Default

A notice of default, once recorded and served, apparently remains effective until rescinded after cure of the default, should that occur.

If a notice of default is not acted upon (by taking the next steps, the Notice of Sale and the sale itself), within a reasonable time, it would be good practice to prepare, record and serve a new notice of default, since the amount in default and other matters will probably have changed materially over the course of time.

Remember that as the lender/beneficiary, you are not the trustee, and it is the trustee who will actually conduct the sale. The foreclosing trustee also usually handles the preparation, recording and serving of the notices. Although this is not required, you would be well advised to leave ALL steps of a foreclosure to experts since the process is filled with technical requirements intended to protect the borrower.