Need help to Stop Trustee Sale in California

[outsicktoday]

Here's the situation. Previous primary home, now considered an investment property (rental) in CA. Stopped payments in September of 2011, received Notice of Default March 2012, Just received Notice of Sale with a date of 07-27-12. House is of course badly upside down.

Looking for ideas to stall or postpone the sale date so I can collect some more rent until it ultimately forecloses.

I DO NOT WANT TO FILE BANKRUPTCY.

I have already been through all the particulars of the loan and risks of foreclosure and all that.

All I am looking for here are tactics to stall the sale date.

I have sent a letter to the bank complaining about the servicer, who has pulled the usual tactics of losing paperwork, claiming the file was complete and then it's not, and so on. I have been in the HAMP MOD process for months. My lender will not discuss anything else until the HAMP process is complete (no in house mod discussion, no discussion of deed in lieu or short sale, nothing until the HAMP process is over and they keep delaying it).

So I complained to the bank and asked them to intervene and postpone the sale.

I also seen the info on to my investor FREDDIE MAC, complaining that the servicer has not followed standards set forth by FREDDIE MAC for the servicing of the loan.

I Called the servicer repeatedly today to request a postponement. I have a form ready to go that will allegedly complete my HAMP pack that will be sent back to the servicer.

I am wondering if I should send them a written request with that document requesting that the sale date be postponed due to the many errors they have made and their non compliance with FREDDIC MAC servicing practices.

Any ideas would be greatly appreciated.

Thanks!

[outsicktoday]

I am going to send this letter to the servicer, thoughts?

Dear XXXXX Loan Serving: Attention: XXXXXX FROM: XXXXXXXX

The purpose of this letter is to formally and respectfully request that the sale date for my property located at XXXXXXXXbe postponed. Currently, the sale date is set for the date of 07-27-2012.

There are several reasons why I believe that a postponement of the sale date may be warranted. First of all, for whatever reasons (most likely due to volume and the nature of the HAMP application) the timeliness of the HAMP application and the response fromXXXXX has not followed the standards set forth by the Federal Government through the Making Home Affordable Initiatives. The response fromXXXXX to the HAMP application and the overall servicing of the loan has also not conformed to standards set forth by the investor of the loan, FREDDIE MAC.

All available options to avoid foreclosure have not yet been addressed, including the possibility of an in-house modification, a possible short-sale, deed in lieu etc. This is due to the extremely lengthy process related to the HAMP application.
On several occasions, my understand has been that only a couple of documents have stood in the way of a complete file and I have provided to the best of my ability any and all documents requested. This has understandably been a confusing and drawn out process.
It may be that the setting of a sale date is merely a formality in the process and that XXXXX may be aware that postponements are part of the nature of the process. However as a homeowner this is unsettling knowing that the home could be sold when all efforts are being made in good faith.

I have also asked the BANK, XXXXX to look into the situation and intervene if need be to stop the sale of the home. I have also contacted FREDDIE MAC to inform them that usual practices and procedures expected (as outlined in their servicer requirements) have not been followed and that my home is in danger of being foreclosed on.

I am aware that there are many properties that fall within the situation that I am experiencing and that XXXXXX is doing their best to meet the needs of all customers. However, I am attempting to work this situation out in good faith and a sale date at this point does not appear to be a fair resolution to this case.

I am requesting that my file be considered for any and all potential solutions to avoid formal foreclosure. Any paperwork that would be required to assist in this will be provided promptly as always.
Thank you for your consideration. I am appreciative of the assistance that I have been provided and everyone at XXXXX has been professional in their presentation. I simply want to explore all possible avenues to avoid foreclosure and it does not appear at this time that this has occurred.

If I am turned down for any program, I would like a copy of the appeal process and the means by which to appeal . Thank you for your time and consideration, Respectfully

[Jeffrey L. Shurtliff]

You need to directly challenge the Trustee. It is the only way to stop the sale. Send the letter to them too.

[outsicktoday]

I've read that a few times that I need to challenge the Trustee, what are the factors or elements of the process that I can challenge the Trustee on? Some of the placed that advertize assistance state that they have a "comprehensive list" of things that they challenge the Trustee on, but I cannot find the list and I am not paying for something that I can do myself.

[outsicktoday]

I sent the trustee the letter too. Thanks for that advice.

To all, I am looking for those factors to challenge the trustee on, any help would be appreciated. I am just looking to stall the sale one month (OR MORE) at a time.

[Jeffrey L. Shurtliff]

Factors to stop a sale. 1. Active mod review. 2. Violation of state Statute. 3. Violation of Common Law doctrine. 4. Negligence 5. Violation of proceedural Due Process.

[outsicktoday]

Factors to stop a sale. 1. Active mod review. 2. Violation of state Statute. 3. Violation of Common Law doctrine. 4. Negligence 5. Violation of proceedural Due Process.

Could you elaborate on the factors a bit. Any ideas of where to go to obtain samples of letters that might have been sent?

[Jeffrey L. Shurtliff]

Could you elaborate on the factors a bit. Any ideas of where to go to obtain samples of letters that might have been sent?

Read this thread there is alot there to help you. My recent letter to BofA (Part 2)

[isisis]

Hi outsicktoday,

If you haven't had your file escalated to the Office of the President that's what you should do next. There's a thread under Bofa that deals with how to go about doing that.

To find errors in procedure you need to get the documents filed at your county recorders office. This study is a good outline to use to understand how things are supposed to be done - and rarely were. aequitasaudit.com/images/aequitas_sf_report.pdf

This thread is about challenging Bofa to prevent a trustee sale "My recent letter to Bofa" as many of us are doing that right now. There are useful letters there that you can change to fit your situation.

[outsicktoday]

Hi outsicktoday,

If you haven't had your file escalated to the Office of the President that's what you should do next. There's a thread under Bofa that deals with how to go about doing that.

To find errors in procedure you need to get the documents filed at your county recorders office. This study is a good outline to use to understand how things are supposed to be done - and rarely were. aequitasaudit.com/images/aequitas_sf_report.pdf

This thread is about challenging Bofa to prevent a trustee sale "My recent letter to Bofa" as many of us are doing that right now. There are useful letters there that you can change to fit your situation.

Very good stuff isisis, very much appreciated. I have some concrete things to include in my communications to both the lender, the servicer and the trustee. Thanks!

[outsicktoday]

They offered me a modification in which I would have to make 3 trial payments and they would delay the sale. Of course they wanted the first trial payment right away or they would sell the house in a week or so. I decided to make one trial payment to see what would happen (renters money anyway). They then offered to write down some of the principal but never put it in writing. Stated the new payments would be a little over 1000 a month instead of 1300 which sounds pretty good. They delayed the sale until October so I can still decide to pocket September and October rent and then let it go or try to delay it again until November/December. Either way I can pocket September the way the payments fall and then pay the trial with October and November's rent if I want to.

The write down is about 65,000 SO THEY SAY from about 230,000 to about 170,000 or so. Worth is now about 120,000. That still leaves me 50,000 underwater in a market that is not going anywhere right now but the amount of houses on the market has shrunk considerably (how many are shadow I don't know).

Thinking about paying the other two trial payments to see what they will do, accept the write down, let the loan go from the servicer back to the bank and then doing the whole thing over again, start the default anew. Although I think they can still use the NOD unless they cancel it for up to a year.

[outsicktoday]

Also my NOD was at the end of March 2012, NOS was beginning of July. I thought that each time the date was changed a new NOS had to be posted? The original one was for a sale date at the end of August, then it got postponed to September and then again until October, so why no new NOS for the actual sale date, will it be posted closer to the actual date of sale?

[freedomwon]

Also my NOD was at the end of March 2012, NOS was beginning of July. I thought that each time the date was changed a new NOS had to be posted? The original one was for a sale date at the end of August, then it got postponed to September and then again until October, so why no new NOS for the actual sale date, will it be posted closer to the actual date of sale?

Hi outsicktoday - NOS is filed once & is good for an entire year. The lender is not required to let you know each time the sale gets postponed. Should the NOS expire after 1 year since it was recorded, a new one must be recorded. Just keep watching the trustee sale calendar to keep yourself informed.

[TomEason]

Also my NOD was at the end of March 2012, NOS was beginning of July. I thought that each time the date was changed a new NOS had to be posted? The original one was for a sale date at the end of August, then it got postponed to September and then again until October, so why no new NOS for the actual sale date, will it be posted closer to the actual date of sale?

outsicktoday

Per the CA statute, a new NOS must be posted after more than 365 days have passed since the date of the original scheduled TS.

So, if your original TS was scheduled for the end of August 2012, the trustee/lender is required to file/record/post a new one at the end of August 2013.

FWIW, a NOD is good forever; need not be re-filed.

[outsicktoday]

Thanks good info, much appreciated TOM and FREEDOM. I am right now trying to determine if it's worth it to pay the next two installments and then default again later and maybe be able to pocket more rent, or just pocket two more months and call it quits.

Right now there is no sale date set, so I might be able to pocket October and November and then have a sale in late November. However it is hard to predict what the servicer will do.

I am tempted to try and drag it out a little more by paying the October and November Payments and then assessing what the modification will really be. If I can get the loan back to the bank I might be able to pocket another 6 months of rent (3 before it goes back to the servicer, 90 days and maybe another 90 before they sell it). Also, I might be able to file another HAMP pack and ask for another modification. Basically start the wheel all over again.

I dropped rent to 1100 from 1300 so my renters feel nice and secure and happy and continue to pay. I promised them another lease in which I will add language that makes the lease null and void should foreclosure happen. They are too stupid to read it anyway and will only be too happy to sign to save 200 a month.

September went into the bank, so that makes a full 12 months of rent pocketed to date, with 1 month paid to the servicer to stop the sale and stall strategically. So I am +12,000 and probably closer to $15,000 ahead. So right now I either do 1 of 3 things:

1- Keep the home after getting a mod, most unlikely
2- Pay the other 2 installments and stall with the hope of getting more later, sort of an investment
3- Say screw it and pocket the 2 months and let the house go.

I like the middle way most of the time, so I say #2 at this point. A couple of payments might net me more than that in the future. If I pay $2200 it might net me $6600 later for a $4000 profit. Not bad if you can see your money go up 200% in less than a year, that would certainly be a worthwhile investment, even 100% would be a go.

[TomEason]

outsicktoday

Thanks for posting your strategy options.

I'm curious why you intend to include in the new lease

language that makes the lease null and void should foreclosure happen

However the lease is written, the tenants are protected by the PTAF Act of May 2009, and can remain for at least 90 days after the FC, and likely for the duration of their lease term.

Why would you be concerned about it, since you'll no longer be the owner?

Thanks.

[outsicktoday]

Just concerned that I may have some liability. The lease is a two year lease and it's only been a little over a year. I thought my renters might be able to sue me for breach of contract.

[TomEason]

Again, pursuant to the terms of the PTAF Act, the tenants can remain for the full term of their lease.