Notice Of Default

Fred

LoanSafe Member
Aug 27, 2014
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Have not been able to pay pay second for 26 months. First is Current. Today received a notice of Default in the mail.

Came with a Declaration on CA Civil Code 2923.55 stating.

1. Left voice mail with number for me to contact - True. Many times. I did answer this several times and the message continued and no live body answered. Just never contacted them
2 Sent me a letter via first class mail - true
3. attempted to contact me on three seperate days at a different time each day. Unless it was by number 1 leaving a voice mail asking me to contact them, this is not true.
4. Sent me a letter via certified mail return receipt requested. Not true.

No argument as to missing payments and the amount owed.

But numbers 3 and 4 are not not true on this declaration, Is it a requirement for the trustee to declare correct information. Would an incorrect declaration by the trustee allow this foreclosure to be null and void?

If so, who would I contact to challenge the declaration. Surely the bank would be no help.
 
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Moe Bedard

Call 1-800-779-4547
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Hi Fred,

There is almost nothing that can make a foreclosure null and void. It will be up to you to answer them and prove to the courts that they did not do what they legally stated they did. You either have to answer the declaration or have a lawyer do it for you.

In any event, the courts seem to frown on foreclosure defense cases and debtors who do not pay their debts regardless of having valid defense strategies such as proving the mortgage servicer committed fraud. I have seen this time and time again over the years.

Most people wasted their time and money pursuing defense strategies what appear to me to be noble and legitimate, but in the end were fruitless causes.
 

Fred

LoanSafe Member
Aug 27, 2014
24
0
1
46
Hi Fred,

There is almost nothing that can make a foreclosure null and void. It will be up to you to answer them and prove to the courts that they did not do what they legally stated they did. You either have to answer the declaration or have a lawyer do it for you.

In any event, the courts seem to frown on foreclosure defense cases and debtors who do not pay their debts regardless of having valid defense strategies such as proving the mortgage servicer committed fraud. I have seen this time and time again over the years.

Most people wasted their time and money pursuing defense strategies what appear to me to be noble and legitimate, but in the end were fruitless causes.
 

Fred

LoanSafe Member
Aug 27, 2014
24
0
1
46
I mentioned above that I received a notice of default in the mail. That was not true. I actually found out about the NOD from several realtors who watch for the filings to prospect for potential business who called it to my attention. Kind of scumy types. Is it standard procedure for a Bank to file the actual notice of default and not notify the borrower of this filing?
 

Fred

LoanSafe Member
Aug 27, 2014
24
0
1
46
I mentioned above that I received a notice of default in the mail. That was not true. I actually found out about the NOD from several realtors who watch for the filings to prospect for potential business who called it to my attention. Kind of scumy types. Is it standard procedure for a Bank to file the actual notice of default and not notify the borrower of this filing?
I was under the understanding the bank would notify by certified mail or at least US mail.
 

Fred

LoanSafe Member
Aug 27, 2014
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0
1
46
I was under the understanding the bank would notify by certified mail or at least US mail.
It bring up this question because I was not notified from the bank. In theory, I do not know they have filed a notice of default. Does not seem
proper.
 

Moe Bedard

Call 1-800-779-4547
Staff member
Loan Safe Mortgage
Aug 10, 2007
26,841
466
1,000
48
Southern California
www.loansafe.org
They are required to notify you that you are in default depending on your state's laws. California law requires that your mortgage servicer personally contact you by phone or in person 30 days before recording a Notice of Default.

If they cannot reach you, they cannot record the Notice of Default until 30 days after the servicer has done all of the following:
  • Sent a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.
  • Attempted to contact you by telephone at least three times at different hours and on different days at the primary telephone number on file. (This requirement is deemed satisfied if the servicer determines that the primary telephone number, secondary telephone number, or any other numbers on file have been disconnected.)
  • Sent a certified letter two weeks after the telephone requirements are met that provides a way for you to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.
  • Posted a prominent link on its website homepage with information about options to avoid foreclosure, financial documents borrowers should collect if they want to discuss such options, a toll-free telephone number to call to discuss alternatives to foreclosure, and the toll-free telephone number to find a HUD-certified housing counseling agency.
Link: http://www.nolo.com/legal-encyclopedia/california-foreclosure-laws-procedures.html
 

Fred

LoanSafe Member
Aug 27, 2014
24
0
1
46
They are required to notify you that you are in default depending on your state's laws. California law requires that your mortgage servicer personally contact you by phone or in person 30 days before recording a Notice of Default.

If they cannot reach you, they cannot record the Notice of Default until 30 days after the servicer has done all of the following:
  • Sent a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.
  • Attempted to contact you by telephone at least three times at different hours and on different days at the primary telephone number on file. (This requirement is deemed satisfied if the servicer determines that the primary telephone number, secondary telephone number, or any other numbers on file have been disconnected.)
  • Sent a certified letter two weeks after the telephone requirements are met that provides a way for you to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.
  • Posted a prominent link on its website homepage with information about options to avoid foreclosure, financial documents borrowers should collect if they want to discuss such options, a toll-free telephone number to call to discuss alternatives to foreclosure, and the toll-free telephone number to find a HUD-certified housing counseling agency.
Link: http://www.nolo.com/legal-encyclopedia/california-foreclosure-laws-procedures.html
Thanks for the information Mo. It seems odd to me that those in the business that follow legal filings as a way to get prospects let me know about the notice, and the bank did not send me a copy of the notice that the 90 day period had started. I have been researching while writing and just found some info that a bank will send notification of NOD within 10 days of filing. They filed on July 26th and have not received yet. Is this ten days a law or procedures. Is the ten days calendar or business days?

Houses in our area are going for $195,000. $195,000 is about what I owe on this loan(This includes all the delinquents about $30,000) The house has worn out items such as such as floor coverings, paint inside and out, appliances etc etc. The fact the house will now go for either short sale, or foreclosure. and distress, I would think if I sold probably about $ 150,000+- less RE commissions of $9000. This would leave me about $141,000. So am $50,000 to $60,000 short on the loan balance if house is sold.

I had not been in contact with the bank until last week and was told they have a package they can send me for help but you must include a financial info

Being a 90 day notice has been filed, and we would like to keep the house if a settlement is available, where would you start.
They are required to notify you that you are in default depending on your state's laws. California law requires that your mortgage servicer personally contact you by phone or in person 30 days before recording a Notice of Default.

If they cannot reach you, they cannot record the Notice of Default until 30 days after the servicer has done all of the following:
  • Sent a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.
  • Attempted to contact you by telephone at least three times at different hours and on different days at the primary telephone number on file. (This requirement is deemed satisfied if the servicer determines that the primary telephone number, secondary telephone number, or any other numbers on file have been disconnected.)
  • Sent a certified letter two weeks after the telephone requirements are met that provides a way for you to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.
  • Posted a prominent link on its website homepage with information about options to avoid foreclosure, financial documents borrowers should collect if they want to discuss such options, a toll-free telephone number to call to discuss alternatives to foreclosure, and the toll-free telephone number to find a HUD-certified housing counseling agency.
Link: http://www.nolo.com/legal-encyclopedia/california-foreclosure-laws-procedures.html

Thanks for the information Maurice. The NOLO link is not active.


It seems odd to me that those in the business that follow legal filings as a way to get prospects let me know about the notice, and the bank did not send me a copy of the notice that the 90 day period had started. I would think they file and notify on the same day.


I have been researching while writing and just found some info that a bank will send notification of NOD within 10 days of filing. Is this ten days procedure or law? Is the ten days calendar or business days?



I had not been in contact with the bank until last week and was told they have a package they can send me for help but you must include financial info such as bank statements, check stubs etc etc, so I declined. They mentioned short sale, loan mod, deed in lieu and forclosure, but did not mention settlement.

The notes on strategy to settle published on your website recommend to Let the lender’s settlement department initiate the talks. Are talks normally initiated following a NOD filing?
 

Moe Bedard

Call 1-800-779-4547
Staff member
Loan Safe Mortgage
Aug 10, 2007
26,841
466
1,000
48
Southern California
www.loansafe.org
You are welcome.

Yes, that is odd they have not notified you as of yet. As I mentioned above, California law requires that your mortgage servicer personally contact you by phone or in person 30 days before recording a Notice of Default. The days are based on calendar days.

Most loan workouts/settlements are offered and or completed after an NOD is filed.

They normally do not offer or recommend a settlement. This is something you have to request or they offer at a later date.
 

just_me

LoanSafe Member
Sep 14, 2015
637
61
28
Yes, I have seen improper service of NOD used as a defense in court. There is some success in getting FC complaints dismissed with this. It is not a be all end all, they are free to start over *with* proper notice. It really depends on the judge as to how serious the infraction is viewed. It is technically a breach of contract to not follow notice rules. It also makes them look bad to get caught in a misrepresentation. Good thing you have hungry lawyers, ready to act and monitoring potential business by watching filings, or you would not have known, right? ;) Consider getting a free consult, but skip the ones that simply offer bankruptcy as the only solution.

(I'm not an attorney, this topic has been dissected elsewhere on loansafe board discussions, some with supporting case law.)