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VanDLaw
VanDLaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 833
Experience:  Chapter 7 & 13
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Can bankruptcy stop you from being evicted once your home has

Customer Question

Can bankruptcy stop you from being evicted once your home has foreclosed? There was a sell date and I wasn't notified of the sell date that took place on October 24. A guy came out to post an Auction sign. I have a family thinking I had until the 16th of November to file another Chapter XIII because the first one I did own to prevent the first sell that was scheduled on 9/16/2008, and was notified on 10/12/08 it had been dismissed, while looking for an attorney to represent me. Most office are booked-up with bankruptcies. So I've decided to try getting help over the internet. Is there any help? I was told that by filing a bankruptcy for such a thing as this, that I could play for some time to see if I can work something with the rightful owner of my loan in an effort to buy back my loan. What can I do? Or is there anything that can be done?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  VanDLaw replied 5 years ago.

HelloCustomer

 

I will be happy to assist you. First a Chapter 13 filing will not stop a foreclosure once the house has gone to auction, and cannot stop an eviction was the house is sold at auction. Once the Chapter 13 was dismissed on October 12, 2008 the automatic stay was lifted and the lender could move forward with foreclosure and sale. You prevented the first sale of 9/16/2008 by filing, however that was back on again once the lender received notice that the chapter 13 was dismissed.

 

If the house was sold at auction I am afraid to say there is no remedy available to you to get it back unless your State has a redemption period. This redemption period allows you to buy back the house from the person who bought it at auction. That redemption period varies by state, if it is even available, and if available is a very short period of time. Most people can't buy back the house or they wouldn't have had it sold at auction in the first place!

 

You need to watch out for the lender getting a deficiency judgment against you for the difference in the note and what was received at auction. If you do file bankruptcy, the judgment they could get would be able to be discharged in the bankruptcy.

Customer: replied 5 years ago.
The property is an REO. California handle the foreclosure of the bank a little different as for as a deficiency judgment goes. Because there isn't any court involved per say, they company/bank waves the right to collect such thing as a deficiency judgment. So you're telling me that there's no possible way of buying my home once it becomes an REO. Where are you located? I was on the Internet and a person I thought was legal sound gave me the advice that you can file bankruptcy and it will help extend time for negotiation and give 60 to 90 days to finding a place to stay, it I needed this time.
Expert:  VanDLaw replied 5 years ago.

I am in Florida. You are correct California does have much more protection from deficiency judgments than other States. If they do not get a Judicial foreclosure they cannot get a deficiency judgment, so that is good.

 

However, Bankruptcy is Federal law, so it applies everywhere with exceptions of States that have come up with different sets of exemptions allowed. California has opted out and provides a different exemption system than is allowed by the Feds. This does not however help you with getting the house back.

In California there are two types of foreclosure:

 

Judicial Foreclosure

 

The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder.

 

Using this type of foreclosure process, lenders may seek a deficiency judgment and under certain circumstances, the borrower may have up to one (1) year to redeem the property.

 

Non-Judicial Foreclosure

 

The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines".

 

Power of Sale Foreclosure Guidelines

 

If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:

A notice of sale must be: 1) recorded in the county where the property is located at least fourteen (14) days prior to the sale; 2) mailed by certified, return receipt requested, to the borrower at least twenty (20) days before the sale; 3) posted on the property itself at least twenty (20) days before the sale; and 4) posted in one (1) public place in the county where the property is to be sold.

The notice of sale must contain the time and location of the foreclosure sale, as well as the property address, the trustee's name, address and phone number and a statement that the property will be sold at auction.

 

The borrower has up until five days before the foreclosure sale to cure the default and stop the process.

The sale may be held on any business day between the hours of 9:00 am and 5:00 pm and must take place at the location specified in the notice of sale. The trustee may require proof of the bidders ability to pay their full bid amount. Anyone may bid at the sale, which must be made at public auction to the highest bidder. If necessary, the sale may be postponed by announcement at the time and location of the original foreclosure sale.

 

Lenders may not seek a deficiency judgment after a non-judicial foreclosure sale and the borrower has no rights of redemption.

 

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