Legal Question in Real Estate Law in California

Re: unlawful foreclosure

You state that you are (or now, "were") both on the deed to the house. At the time of your divorce, was there no property settlement or order of the court with respect to the house? Do you have a final judgment?

Do you have a copy of the note and deed of trust or "mortgage" that is (was) on the house? Did you sign it? Did the holder of the note know your address?

Generally, a residential lender cannot begin the foreclosure process without filing a Notice of Default at the courthouse and mailing a copy to the borrowers. In the case of a married couple, this is usually both the husband and wife. However, if after an effort they can't locate one of the parties, their duty is fulfilled.

Several months after a Notice of Default is filed, the lender can auction the house to the highest bidder. Since the mortgage holder can bid with the money owed it instead of cash (up to the amount of the loan plus interest due and costs of sale), frequently mortgage companies are the high bidder and end up owning the properties they lent on.

If the mortgage company followed the law, you may have no recourse. You need to compare the price for which the property sold at auction with the amount then due, plus costs.....if the sale price were higher, the balance could be due to you (assuming you in fact had some ownership after the divorce, there is no second mortgage or tax lien, etc. etc.).

I think the place to start is to verify what happened to ownership as a result of your divorce. Look at your judgment and the papers attached to it, or see the lawyer who handled it for you (or a new lawyer if you don't trust or don't like that one). Who is "on the deed" doesn't always reflect true ownership. If you indeed had some rights in the house after the divorce, have a lawyer check the foreclosure process and sale to see whether it was conducted properly and/or whether your ex-husband or the party conducting the foreclosure sale owes you part of the proceeds.

Mention the possible mental incompetency of your ex-husband to the lawyer. He may be entitled to special protection if legally incompetent.