Legal Question in Wills and Trusts in California

Can they foreclose? It depends on whether the creditor has a security interest against the property. You state the Bank is "not the note holder", on what basis does the Bank have a claim against the property?

As such, before any determination as to any foreclosure can be made, a more thorough review of the Bank's claim and associated documents is required.

Not if you bring the mortgage payments up to date, and keep paying them, which is what you should do if you want to keep the house.

Banks and other lenders frequently use what are known as servicers and also sell their notes and deeds of trust to other lenders and servicers. If there is a deed of trust encumbering the house, and payments to whomever is servicing that note and deed of trust is not paid, the current owner of the note and deed of trust can initiate foreclosure proceedings. In addition, third parties, known as "trustees," are frequently named in Notices of Default and Elections to Sell, so the fact that you do not see the "Bank's" name on the documents does not mean that a bank or other lender is not the party foreclosing.

To protect you rights, you should have an experienced real estate attorney in your area review whatever documents you have realting to the threatened "foreclosure." The fact that "there is no money in the estate" has nothing to do with whether a foreclosure can take place because in a foreclosure the lender simply takes the property back from the borrower under the terms of the deed of trust.

How do you know the bank threatening to foreclose is not the note holder?