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What is my next step to get my surplus funds after a

foreclosure...
what is my next step to get my surplus funds after a foreclosure
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Answered in 24 minutes by:
3/5/2018
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 41,059
Experience: 17 years real estate, Realtor. Landlord 26 years
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Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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Has the sale actually happened and have you confirmed that there were funds over and above any mortgage, liens, taxes, sale costs, etc.?

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Who actually sold the property? Sheriff?

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thanks

Barrister

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Customer reply replied 1 month ago
The house was sold on Sept 7 2017 by the bank's trustee at auction. There are surplus funds. I received notice from the trustee. I contacted the trustee many times and was eventually told they would probably send the account to an attorney to handle. I received notice from the attorney mid November requesting copies of my and my wife's id which I supplied the same day. The attorney then asked me about three other names they said they showed on the title. I knew none of the names. The attorney then provided me with documents showing a 10% equity in the house had been given to each of the three people named. I came to find out later those documents had been sent to the trustee on the sale dates to postpone the sale. I had hired a service to delay the foreclosure sale but didn't know exactly how they did it. The attorney then said they would just send the funds to the court and let them decide who the legal owners were on the date of the sale. The attorney sent me a letter dated Dec 6 that said they intended to send the case to the court and it would be done before 30 days (Jan 6). On Jan 10 I contacted the attorney and they said the case would be sent by the end of the month (Jan). On Feb 2, I contacted the attorney and was told the case still hadn't been sent because they were waiting for 'their client' to sign something. I obtained and provided to the attorney a title history that showed no other names were ever recorded on the title. I asked if they had papers showing 30% equity had been 'given' away then why wouldn't I be entitled to 70% of the surplus funds. They are now not answering my emails and calls just go to the message service.

If the foreclosure attorney is giving your the run around, you may have to hire your own attorney to pursue this.

In California, following a non-judicial foreclosure sale of real property, if there are surplus funds after the amount owed on the note secured by the deed of trust is paid, the foreclosing trustee should petition the court to request that it be permitted to deposit the funds with the clerk of the court pursuant to California Civil Code sections 2924j so that the Court can make a determination regarding the disposition of the funds.

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Once the Court grants the petition and orders that the funds be deposited with the court, the petitioner will be discharged from further responsibility for the disbursement of the sale proceeds. The Court will then set a hearing for the distribution of the proceeds.

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California Civil Code section 2924j specifies the procedure under which a trustee who is unable to determine the priority of claims to surplus in a trustee’s sale may deposit those proceeds with the court and permit the court to make the determination. Under Civil Code section 2924j:

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Within 90 days after deposit with the clerk, the court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled by the court, the clerk shall serve written notice of the hearing by first-class mail on all claimants identified in the trustees’ declaration at the addresses specified therein. The court shall distribute the deposited funds to any and all claimants entitled thereto.

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So if the trustee is holding onto the funds and won't disburse them, you may have to hire your own attorney to file a motion with the court to compel the trustee to appear and then surrender the funds to the court so that they can be disbursed according to the statutory priority of claimants..

.

.

thanks

Barrister

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Customer reply replied 1 month ago
Is there a time constraint on the trustee, or their attorney, to file the petition?

No, that is the problem... there is no stated deadline, so that is why you are going to have to light a fire under them to get them to move to surrender the funds to the court.

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Hello again,

.

I just wanted to touch base with you and check in.

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Did you have any further questions I can help with?

.

.

Thanks much

Barrister

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Customer reply replied 1 month ago
The attorney just told me they received the signed petition from the trustee and are now waiting for the check to deposit with the court. I presume there will now be different papers I have to file with the court to claim the money. Thanks.

Correct. the court clerk should have a claims form you fill out and provide identification so they can legally release the funds to you.

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Please take a moment to rate my service as that is the only way I am compensated for my work.

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Thanks much

Barrister

Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 41,059
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified
Barrister and 87 other Real Estate Law Specialists are ready to help you
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Customer reply replied 1 month ago
I just received notice that the funds have been deposited with the court. The petition and declaration include the fictitious deeds that were used by the foreclosure service to delay the foreclosure sale. I have been told by the service the 'deeds' were never actually filed with the county recorder even though they are stamped as received and notarized. Each deed granted a third party 10% interest. The official title report shows no one other than my wife and myself. The case has been assigned to the same judge who presided over my unlawful detainer after the foreclosure sale. Will the judge take the documents into account or will he go by the official title history to decide how to distribute the funds?

Will the judge take the documents into account or will he go by the official title history to decide how to distribute the funds?

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Normally they would just go by the official title report.

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Customer reply replied 17 days ago
The court has now sent me a notice of hearing set for June 4. Is this extended date some kind of requirement or can I ask for a sooner date? Also do I need to appear now that I have moved out of state?

Once it is scheduled you can't really change it as that is the discretion of the court. But yes, you will have to appear if you want to actually claim the money.

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Barrister
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