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For a foreclosure attorney: We defaulted on our mortgage a

For a foreclosure attorney: We...

For a foreclosure attorney: We defaulted on our mortgage a little over 2 years ago when our business failed and we were making high payments on the bankruptcy. Despite our best efforts they waited 2 years until the bankruptcy payments were over then offered a loan modification rate higher than our original payments, which we declined. We tried to short sale (started last December 1) but the buyer backed out at the last minute and despite 3 subsequent price decreases the house has not sold. We just want this done and over with. Told mortgage company we wanted to give the house back to them but they said we had to submit another ton of personal financial info and wait several months to see if the government and they approved it. They postponed an auction date while the short sale was active and have not yet set a new date, though we have moved. I asked them yesterday to just foreclose and they implied that they will when they are ready...that yes they can oppose short sale, died in lieu and not foreclose as long as they want until the value of the house increases and they want it--meanwhile they very threateningly said we are required by law to maintain the home in good working order and if we don't they will prosecute, sue and we will suffer "severe consequences." I don't even care at all anymore--I just need this over--the privacy invasion, the game-playing, and the cost of keeping utilities on and pool and yard maintained. We are inclined to just stop cooperating and make them foreclose. What are our legal obligations? What is the fastest way out of this? We have a good income but no assets really and the house has a loan balance of $386,000 but won't sell for $169,000.

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Answered in 2 hours by:
3/28/2013
dylatess
dylatess, Attorney
Category: Legal
Satisfied Customers: 5,158
Experience: 37 plus years representing clients with their legal issues
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Hello and thank you for your question. For over 34 years I have answered questions just like yours. And I look forward to assisting you.

Fortunately you reside in CA which has what is known as anti deficiency laws. That menas that, if your house is foreclosed, the lender cannot come after you for any balance owing. Further, real property taxes are also wiped out.

So my advice to you is to stop making any more payments except utilities and home insurance. And let the bank do its thing. Eventuallly you will get notice that the house has sold and you will have to move. Also, from the date the foreclosure is filed, you have approximately four months. And you will get plenty of notice as the process goes along.
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Customer reply replied 4 years ago

Thank you but I already knew all of that and as I said I have not paid the mortgage in over 2 years. We do not live in the house. We would like for the bank to foreclose but they aren't. We want to just give the house back to the bank but they say legally they can't take it without us going through a several month process in which we provide reams more of financial data, which we do not want to do. We want them to foreclose ASAP. They want us to maintain the house/pool/yard etc and said we have a legal obligation to do so and they'll sue us if we don't. We think they are dragging their feet so we can pay the maintenance while they wait for the market to go up. The question is: are we legally obligated to maintain the house or can we shut off the utilities and walk away? We will of course keep homeowners insurance to protect ourselves. And is their any way to speed up the process if being rid of the house if the bank won't take it back and won't foreclose?

You can walk away from the house and shut off the utilities. The problem arises, however, however, if there is an accident on the property. that is why you need to maintain homeowner's insurance. As for the process, the bank is in control and you cannot simply walk in with the keys as they set the timeline for filing the foreclosure. As for speeding up the process, the ONLY way, and this is with bank approval, is if they accept a deed in lieu of foreclosure. But you nor a court can force them to do so. thanks for understanding. I wish you well.
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Customer reply replied 4 years ago

So we are not liable or sue-able or violating the law if we shut off the utilities and let the pool go to hell and the yard? They said if we do that pipes will break and we will be liable for damages too. Their deed-in-lieu takes several months and requires tons of financial data we just are tired of sharing.

LawHelpNow
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Hello,


My name isXXXXX'm a licensed attorney. Glad to try and help out.

Sure sorry for the circumstances, truly. My heart goes out to you folks.


Accordingly, I'll speak plainly rather than doing you good folks the disservice of misleading you or lying. I have every sympathy to you, so I would love to say otherwise, but I feel you deserve a candid and truthful answer. So, here goes. Yes, you can walk away, simply shut off the utilities, close the front door, and leave. However, at the same time you absolutely do remain liable during the pendency of the proceedings. In other words, what you've been told is entirely correct. You remain exposed to tort liability in terms of personal injury, property damage and so forth, just as if you were still residing in the home, keeping the utilities on, and performing home maintenance and upkeep.

Hope that makes sense, and I'm truly sorry the law is not more favorable to your position. I have spoken speak candidly rather than doing you the disservice of lying or misleading you. I didn't enact the law, and personally I often disagree with it, but nevertheless we're all stuck with it.


If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me.


I truly hope all works out for you.


Take care,


Ben, J.D.

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Customer reply replied 4 years ago

I really appreciate your directness. I will of course maintain my homeowners insurance to protect myself, but since we have moved to another town it is difficult to keep up the pool and lawn and it's costing me quite a bit in utilities and upkeep just to keep it nice for the bank until they feel like disposing of it. I just want to be rid of it. Can the mortgage company sue me for leaving it and letting the pool/yard go? Or am I just liable if someone gets hurt or vandalizes the property, which is covered by my insurance?

Hello again,

Thanks for writing back..great to hear from you!


You are most welcome..my pleasure entirely!

It makes my day to know that my answers have been helpful to you. I do thank you so much for taking the time to express your appreciation with such kind words.

Also, please know I meant every word. I think the foreclosure crisis, which has been just atrocious -- especially in California -- is just lousy.

To answer your additional questions, there are roughly three levels of priority, in the following order:

(1) Homeowner's Liability Insurance: Absolutely number one, and I commend you for realizing the importance thereof. This is all the more important whenever a pool is involved. I'm relieved to hear you're planning to maintain it.

(2) Major ("Hard") Damage: This would include something like structural damage from a busted water hose. I realize this is going to sound onerous, but really you should maintain at least the basic utilities. Obviously I'm not talking telephone and television here, but at least maintaining enough temperature maintenance so the home doesn't truly suffer and result in an insurance coverage denial.

(3) Minor ("Soft) Damage: This is more of a stretch, but I have seen claims of lost opportunity for resale on account of not maintaining the lawn and shrubs. In colder climates, a person in your shoes could risk a citation for not having the walks shoveled when it snows. So, in an ideal world, you would pay to have lawn and yard maintenance performed. But, this is the lowest priority. If you have to sacrifice anything, do it here. And again, by saying so I sure don't mean to imply that you're flush with money, especially during this difficult chapter of your life.

Hope that makes sense...it definitely involves weighing risks versus benefits, pros and cons, and then just doing the best you can to prioritize given your budget.

Hang in there...I truly hope much brighter days await you!

Best regards,

Ben, J.D.

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Customer reply replied 4 years ago

Thank you so much! That is exactly the specificity I needed! Have a great day.

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