By Patricia Rodriguez, Attorney
The process of foreclosure defense begins with pre-litigation (gathering all of the necessary information); once that is accomplished then Litigation of Real Property Ownership/Title in California can occur. First you must file the complaint. Questions to pose are when to file, what to write, what to file, and how to file. You want to file asap so that you do not miss any statute of limitations.
It is recommended that you use a checklist of possible causes of actions. Compare your facts to the checklist and build your complaint from there. You must include with your filed complaint, a summons, civil case cover sheet, attachments, complaint, complaint verification page, and the complaint exhibits. You will want to determine if you should file in Federal or State Court. You will also want to determine which court, based on jurisdictional issues.
Once a complaint is filed you can seek a temporary restraining order and a preliminary injunction to stop a sale of the property. The court may require you to put upa bond to be granted such an order. Temporary restraining orders are temporary until an order to show cause hearing can be had on the matter. The court will look to see if there has been proper notice, exigent circumstances exist, and if Plaintiff has a likelihood of succeeding on the merits of the case. The court will not look favorably on a party that waits until the last minute to seek such an order and may conclude any exigent circumstances that exist, are due to Plaintiff’s failure to bring the request sooner and deny it on that basis alone.
Once the case is filed, an analysis should be done to determine whether or not to record a Lis Pendens which is a two-page document which attaches the lawsuit over the title to the property; thus, when it’s sold at a trustee sale date, no one but the bank will buy the lawsuit –and the bank must buy it back. There can not be a bona-fide purchaser because everyone is on record of the notice of the lawsuit. The lis pendens should only be recorded if there are real property issues and if there is a likelihood of success on the merits. The defendants will likely file a motion to expunge the lis pendens and if its not voluntarily withdrawn the court may award attorneys fees and costs to the defendants who had to bring the motion to expunge. In order for the motion to expunge to be granted but attorneys fees and costs to be denied the Plaintiff must show that it had substantial justification in recording and maintaining the lis pendens.
To contact Patricia Rodriguez (if located in California), please call 626-888-5206.
The Rodriguez Law Firm: http://www.attorneyprod.com/
For a free consultation, fill out the contact form: http://www.attorneyprod.com/contact.html
This article is not legal advice, but for educational purposes only.
7 thoughts on “California Foreclosure Process Overview”
@ Rhody
Please follow the link to read the Hopkins Opinion in the first comment below, which may help to state a claim for injunctive relief under the UCL.
California, Ohio Extend Sanctions Against Wells Fargo Bank
California State Treasurer John Chiang said he has decided to extend his state’s financial sanctions against Wells Fargo & Co. into a second year, while Ohio extended its sanctions another six months.
http://stopforeclosurefraud.com/2017/10/17/california-ohio-extend-sanctions-against-wells-fargo-bank/
@ Rhody:
The denial of a TRO is immediately appealable in Kalifornia.
A court may not explain the ground for the denial, but it could be due to a technicality in the procedural requirements.
Immediately file another application for a TRO — but cross ALL of the “T”s and dot the “I”s in the second application.
Alternatively, file a Writ of Mandate to compel the superior court to perform its duty to grant a TRO…
OR…
There are 30 days to file a notice of appeal FROM THE DENIAL OF THE TRO, which the Court of Appeal can construe as a Writ of Mandate.
The thought on the second application for a TRO is for the PRIMARY OBJECTIVE in the lower court, to wit:
Make a BETTER RECORD to take up on appeal.
GET TO WORK!
SOMEONE KINDLY ANSWER THIS
1.We filed a complaint litigating foreclosure but the judge did not grant the temporary restraining order. We asked for preliminary injunction and permanent injunction in the suit. It was based on the fact that the alleged mortgagee is not successor in interest of the promissory note that we signed with Countrywide Home loans Inc as the assignment was done after the closing date of the Trust and also after there was an alleged default that are violations to PSA.
2. The defendants attorney files motion to dismiss. It was denied.
3. The defendants attorney files motion to enter a final judgment. It was denied.
NOW, WHAT DO WE DO NEXT? We are ProSe. Please advise to help us out.
Can I get the checklist of possible causes of actions please?
Thanks,
Leo Blas
>
you should file a New York based Judicial checklist as well. After all, NY is the Trust law state and the basis of most big bank litigation and over three million homeowners in NY lost their homes to fraud!
Hopkins v. American Home Mortgage Servicing, Inc. et al.
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=1&doc_id=2101141&doc_no=A144292
We conclude Hopkins has alleged sufficient facts to state claims of negligence and unfair competition against Homeward and Citi, but the trial court properly sustained defendants’ demurrers to the remaining claims. Accordingly, we affirm in part and reverse in part.