Old 02-14-2009, 11:09 AM   #1 (permalink)
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Received a letter today

We received a letter today from AmTrust, our lender. We haven't paid since January 2009. I'm not sure what this letter is. I think it's a notice to default but I'm not sure.

It talks about that we are late, and the in order to cure the default we have to pay up by the 30th day after the date of the letter (2-9-09). In that same paragraph it also states: "Failure to pay the total amount past due, plus all other installments and other amounts becoming due hereafter, by cash, certified check or money order on or before the thirtieth day after the date of this letter may result in acceleration of the sums secured by the Mortgage, foreclosure by judicial proceeding and the sale of the mortgaged property."

The next paragraph after that states: "You may have the right at any time to reinstate our loan if you do all of the following prior to the earlier of (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the property pursuant to power of sale contained in the mortgage, or (b) entry of a judgement enforcing the mortgage.

Professor or anyone else, can you tell me what this letter is? Is it a notice of default or notice of acceleration? Also, we have power of sale language in our Deed of Trust, so I thought it would be a non-judicial foreclosure. But the language where they state "foreclosure by judicial proceeding and the sale of the mortgaged property" confuses me. Especially when the next paragraph states the opposite. So is the just a standard letter where they cover both bases (judicial vs non-judicial)?

I'm a little confused since I really thought it would be non-judicial based on the Power of Sale language in our Deed of Trust.

Karen


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Old 02-14-2009, 12:07 PM   #2 (permalink)
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Re: Received a letter today

Dear Karen we got basically the same letter by certified mail that had a date of 2/4/09 to respond or they will move forward with foreclosure. It was NOT our NOD. In fact since that date I haven't heard a word. Professor Shays has always will be the best one to answer this, but thought I would share it's not the official NOD yet. Take care, Catherine

PS I hate the way these letters are written using the word MAY do this or that, but not being straight with you. Take note how many times that word was used. Maybe to scare you even if they can't follow through??
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Old 02-14-2009, 01:11 PM   #3 (permalink)
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Re: Received a letter today

I received our first letter from WFB yesterday. Our first missed payment was January also. I almost threw it away, the envelope looked like a solicitation of some sort. On the back it said "to be opened by addressee only". It looks like an offer to assist us "stay in our home". Lists programs available - repayment, loan mod, partial claim, pre-foreclosure sale, deed-in-lieu. It included a "how to avoid foreclusure pamphlet" and a financial information worksheet. Now the back of the letter did state that we need to pay our two missed payments by Feb 13 (day we received letter). It also says that they will NOT DELAY FORECLOSURE ACTION on our home. It also stated the Fair Debt Collection Practices on calling etc.
Our letter just looks like a courtesy/warning of what will happen. I am surprised to receive it so soon....especially since our Feb payment is not due until tomorrow.
Karen, I doubt you would have received a NOD after being less than 60 days past due.
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Old 02-14-2009, 01:29 PM   #4 (permalink)
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Re: Received a letter today

We already have received 2 letters about how help is available and with hardship worksheets. I'm just really not sure what this is.
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Old 02-14-2009, 07:35 PM   #5 (permalink)
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Re: Received a letter today

The exact language that MUST be contained in a California Notice of Default can be found in California Civil Code Section 2924c. It is as follows:

(b) (1) The notice, of any default described in this section,
recorded pursuant to Section 2924, and mailed to any person pursuant
to Section 2924b, shall begin with the following statement, printed
or typed thereon:
"IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)

IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).


This amount is ___________________ as of ______________________
(Date)
and will increase until your account becomes current.

While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.

Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
(1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments
in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:


______________________________________
(Name of beneficiary or mortgagee)

______________________________________
(Mailing address)

______________________________________
(Telephone)

If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)"
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Old 02-14-2009, 08:34 PM   #6 (permalink)
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Re: Received a letter today

Well, that is not in the letter. No boldface print. No IMPORTANT NOTICE. So I guess this is just another letter. Though at the bottom in all caps it states "THIS MAY BE THE LAST NOTICE THAT WILL BE SENT BY AMTRUST BANK BEFORE FORECLOSURE PROCEEDINGS ARE COMMENCED UNLES YOU CHOOSE TO VOLUNTARILY CURE ANY DEFAULT WITHIN THE ABOVE TIME PERIOD".

I am most freaked out by the judicial foreclosure language in the letter.
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Old 02-16-2009, 01:26 PM   #7 (permalink)
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Re: Received a letter today

I doubt it's anything to worry about...they're just trying to scare you.
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Old 02-16-2009, 02:29 PM   #8 (permalink)
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Re: Received a letter today

I hope you are right.
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Old 02-16-2009, 03:03 PM   #9 (permalink)
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Re: Received a letter today

This reminds me of the letters I received.
Walking Away in Arizona - My Journey
SEE POSTS #22 and #23

Remember I'm in Arizona, so the Notice of Default(NOD) I am discussing is NOT the same as an NOD in California.
However, for me the letters were just procedure spelled out in my loan docs. They had to give me a notice and time to cure, and warn me of intent to accelerate, and warn me they intended to foreclose.

What I wanted to point out to you KT in CA, they had very scary language in mine too. There was something about legal fees, and balanced due in full, etc... except there was also a line that read: "unless prohibited by law in your state" Which meant what they threaten to do, and what they actually can do are different.

My point is, you have to separate the threats from the real possibilities.

In your case KT aren't you walking, then if the second comes after you, you will declare bankruptcy?
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Old 02-16-2009, 03:24 PM   #10 (permalink)
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Re: Received a letter today

Cactus, nope we aren't declaring bankruptcy. Our second is $55k. It is also the same lender as our first. Professor said that he thought there was case law that when the first and second are the same lender they in essence wipe out their own second when they foreclose. Otherwise, I will have my attorney handle it and see what we can get it down to. But I'm not going through the hassle of bankruptcy for that. We should be able to negotiate it down. I'm not even worrying about that right now. I will deal with it when the time comes. If it was $155k I'd worry. But I think $55k is manageable unless I'm delusional.

One of the paragraphs states: "You may have the right at any time to reinstate our loan if you do all of the following prior to the earlier of (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the property pursuant to power of sale contained in the mortgage, or (b) entry of a judgement enforcing the mortgage. In our morgage is Power of Sale language so I think that would apply. I will check the letter again to see if it says anything about actions prohibited by law. But to me, that line right there has them covering their bases depending on whether you are a judicial or non-judical foreclosure state.
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Old 02-17-2009, 07:09 PM   #11 (permalink)
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Re: Received a letter today

hey KT et all,
seemed we have a certified mail waiting for us to pick up at post office today.. not sure what it is but just like you guys, we start missing payments starting Jan, 2009. will keep you all posted.
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Old 02-18-2009, 10:50 AM   #12 (permalink)
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Re: Received a letter today

All, seemed my certified mail is false alarm I thought it is kinda NOD type of certified mail but it is just reminding me to contact their loss mit dept since I'm officially delinquent...
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Old 02-18-2009, 11:10 AM   #13 (permalink)
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Re: Received a letter today

Yeah, we got one of those too.
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Old 02-18-2009, 05:04 PM   #14 (permalink)
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Re: Received a letter today

I found out that Aurora filed an NOD by checking our county on line. It was filed on February 4th. So I expected to receive a certified letter by February 14th. (we did not receive it by the 14th)

Well yesterday we received 8 NOD letters that were all mailed out on February 13th. 4 by certified mail (2 for me 2 for my husband) and 4 by regular mail. I guess they really wanted to make sure we received it.

Juls
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