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within how many days after your house has been auctioned can u file an injunction to reverse the sale.l citi mortgage on their letterhead turned me down for hamp, the letter dated may 15 2012 said if i inquire within 30 days about foreclosure avoidance my house would not be sold during this 30 day period. a letter on citi mortgage letterhead said on june 5 2012 they received my request and could take up to 30 days for a decesion. the trustee sale was postponed from june 6 to june 8 without any communication to me and was aunctioned and sold to a 3rd party june 8 2012. sorry i tried to give you thje short version.
Optional Information: Country relating to Question: United States State (if USA): California Already Tried: local attorney wanted 2500 dollars to represent me, my mom is considered parapolegic, i have a pension and our income is only 2000 a month. i forgot to ask him this same question, because during this 30 min. consultation i realized i didnt have that and the 500 for filing. i could get the filing fee, just not the 2500 before the 3rd
Hello,Thanks for using JA. Legally you would be filing a motion to set aside the sale, not an Injunction. Injunctions are to prevent something from happening. Since the sale has already occurred, you need to take steps to set aside the sale..But the truth of it is that even though they said they would hold off any sale, if you did not give them anything for the postponement, then it would just be a gratuitious promise that if not enforceable. If they had said, "send us $250 and we will hold off any sale for 30 days", and you paid the $250, then it would be an enforceable contract and if they breached, you could file suit for Breach of Contract..
However, the harsh reality of this boils down to a simple matter of contract law.
Did you make your agreed on payment under your original mortgage contract with the lender? If the answer is no, the lender will eventually move to foreclose on the house. What most people don't understand, and the media is not focusing on because it is not good for the politicians, is that a Loan mod from a lender is a completely voluntary program. No one, including the President, can order the banks to modify your loan if the lender chooses not to. That is one of the fundamental underlying concepts of contract law... that a mortgage is a contract that is binding on the parties and can only be modified by mutual agreement.
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Thanks.
Barrister
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Experience: 12 yrs practice, Realtor, Landlord 23+ yrs
its heart-breaking that banks can send you something and not live up to it, i had time to think while waiting and didnt mention one detail, which probably boils down to nothing, the original trustee sale date was april 2012, saying who gave me this advice does no one anygood, but the local law center told me to file bankruptcy to stop this sale date , which i did, but advised me NOT to submit any furthur documents required ,and "i" was told to do this as a means to show citi mortgage i was acting in good faith and would drop the bankruptcy to see if i qualify for hamp or the other one that started with "h" .concequently july 5 2012 the bankruptcy court is going to discharge/dismiss this bk. this information i told you now has no bearing on my situation correct?
Well, a bankruptcy filing would have automatically stayed any sale as soon as the paperwork was filed with the clerk and the bank was notified. When someone files bankruptcy, it stays all creditor actions by law..If you have filed bankruptcy and it had been accepted by the court in April, then unless the bankruptcy was dismissed that would have held up any sale until the lender could get a release form the bankruptcy court to continue on with a sale. This typically takes a month or so, so it is likely that is what they did after you filed. If they requested a release from the bankruptcy judge and got it, then they can proceed with any sale..Assuming that this is what happened, then yes, it wouldn't have any bearing on the current situation at this point. But if they didn't get a release from the BK court judge to release the house from the BK estate, then that would be grounds to set aside the sale. So it might be worth examining any of the bankruptcy paperwork to ensure that the bank did in fact get the house released from the BK estate before they did a sale..But once again, we are back to the same situation....if the sale was set aside, there is nothing that prevents them from filing the paperwork and just doing it again correctly this time. Only if you were somehow able to pay any back payments and late fees along with any legal Foreclosure costs could you reinstate the loan and this might not economically be an option..
Please be aware that I am not entering into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. With that in mind, please do not post any specific information you do not want available for public viewing. The information provided is not a substitute for a local attorney’s legal advice.
yes, behind since i had to retire in 2009 to take care of my mom, so 2200 x 24+months no way could i pay all that back . so if my goal now is to stay here as long as i can legally, and im going to go to the bk court to look into that, with the new owner representative appearing on my doorstep 3 times since last wednesday, any of this help me in the Unlawful Detainer they said would be their last resort if i dont accept a lease,or cash for keys, just dont want to break moms heart any sooner then i have to.ps. this is my first time here and tried clicking on reply to conversation, nothing happenned , so i finally saw where it said reply to expert. thanks for your time today by the way
Well, if the sale is set aside because they didn't get the house released from the BK estate, then the new owner would no longer be the new owner and wouldn't have any legal standing to evict..But UD actions in CA move pretty quick. California law permits an owner occupied unit to be served with a 3 Day Notice to Quit. Once served, such notice must expire before the start of any action in Unlawful Detainer. Once an Unlawful Detainer is filed, it must be served on the defendant. If personal service is available, such defendant has 5 days within which to respond to the complaint.
. Once served, the matter can take two courses. One, being where the defendant does not respond to the complaint. If it goes this way, a default is requested and a judgment for possession should be available within 10 days of such default. The judgment is then forwarded to the County Sheriff for execution.. If the Defendant does answer the complaint, a trial request is forwarded to the court and the trial in the action is ordinarily set within 20 days of such request. Once judgment is entered by the court, the judgment is forwarded, in a form of a Writ of Possession, to the Sheriff for execution.. So an eviction should be completed within 30 to 40 days after the expiration of the Notice To Quit. As indicated above, once a judgment for possession is obtained, it must be forwarded to the County Sheriff for execution. The Sheriff could take approximately three weeks to actually conduct the lock-out.
i think this is my last question for now, regarding my bk, the last letter i received from the court is dated june 5 2012 saying that unless i object within 30 days the court will discharge the chapter 13 trustee and order this bk to be closed, do u suggest i object to this , and does this have any bearing on what you said earlier when i go to the bk court to check on prior actions before the sale.
If the lender got the house released, and you don't want to pursue the bankruptcy, then there is no reason to object if this was just a strategic move to begin with..So if you find that the lender got the house released from the BK estate, then there wouldn't be any point in preventing the dismissal..
the 3 day notice to quit has to be filed with the court before its posted on my door?
No, it is just given to the occupant. The owner typically keeps a copy in case the court wants proof..