Legal Question in Real Estate Law in California

Re: real estate payments

you need an attorney to explain the total situation to immediatly and by your zip code i practice in oakland and have an expertise in real estate. if you wish call me at 510-465-6000 and i may be able to help you

Re: real estate payments

There sure are laws relating to late mortgage payments.

The first is the general rule of contracts that says not paying according to the schedule set up by the note is a breach of contract and the lender can then invoke the remedies for breach, which in the case of a residential mortgage will include (usually) accleration of the balance due and foreclosure.

However, there's a lot more to it than just enforcement through foreclosure. For example, Civil Code section 2954.4 limits late charges to 6% of the amount due, and provides for a ten-day grace period. Read the statute for the details, of which there are many.

Civil Code section 2954.5 further provides that the borrower must be notified before a late charge is imposed.

See Business & Professions Code section 10242.5 for a similar limitation on late charges for other than single-family residences.

An acceleration clause is a provision that says, if the borrower defaults (for example, by getting behind in payments), the lender can declare the entire principal balance due and immediately payable. Per Civil Code section 2924.5, in order to be valid such a clause must be included in both a deed of trust and the underlying promissory note or similar obligation.

There are strict procedures for carrying out foreclosures on reidences, including a requirement to serve a Notice of Default on the borrower.

You didn't say what your specific problem is, so I can't list all the laws that might apply to your particular situation. Please feel free to write me if you want to ask a follow-up question. My overall advice is that if you are at risk of losing a home to foreclosure, especially one where you have some equity, get professional assistance at once to either work out the problem with the lender, arrange to refinance, or to cope with the foreclosure in a way that is least disruptive and salvages as much equity as possible. Most lenders will work with borrowers in preference to foreclosure, but they expect the borrower to be forthright and honest and not just fail to pay month after month.