Legal Question in Real Estate Law in California

Re: summary motion

Rather than filing a motion or retaining a lawyer with the expectation that he or she can bail you out based on your declaration of homestead, I suggest you ask a real estate lawyer near you for a 30-min. free consultation on your rights, or lack thereof.

I think that's as far as you'll want to or be able to go. It seems clear that what's being foreclosed here is a lien that you created voluntarily, and more likely than not, a lien that predates your 6/05 homestead declaration.

Your lawyer will explain to you the limitations on foreclosure protection that homesteads provide. Declared homesteads do NOT protect against liens recorded prior to the recording date of the homestead, nor against liens created by the homeowner voluntarily, such as deeds of trust.

Further, a homestead does not prevent sale by foreclosure - at best, it only assures that part of your equity is sheltered from creditor demands in distribution of the proceeds of the foreclosure sale.

A motion for summary judgment is permissible in an unlawful detainer proceeding. The bank is likely to win whether or not via the summary judgment route, however.

You do need advice from a lawyer who can skim all the documents and ask you about the sequence of events, but I'm 99% sure you are going to face an eviction.

Re: summary motion

A homestead will only protect the equity in your home form a judgment creditor. It sounds like you lost your home to foreclosure because you weren't making the payments. The lender has the right to regain possession of the property and sell it or put in a paying renter. If the lender followed the proper foreclosure procedures, you have not defense to the eviction lawsuit and should move.

You should consult an attorney, but about the most the attorney can do for you at this point is to negotiate more time for you before you have to leave the house.