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Filing a Lawsuit to Get Your Home Back

Many people who have lost their homes due to foreclosure can take comfort in knowing there might be a possible recourse available to them to obtain their homes back.

When a lender makes the decision to foreclose on a property there are very strict state and federal laws that must be followed. If there are violations that are discovered after a person has lost their home the possibility exists where a lawsuit can be filed to attempt to “reverse the sale”.

The primary law that covers the process and requirements necessary to foreclosure on real estate in California is Civil Code Section 2924. The law clearly lays out the process and requirements that MUST be done correctly in order to comply with the law. If there are violations discovered then the right to bring action in court is available to a homeowner who lost their home. The law is very clear and favors the former homeowner.

The general requirements of performing a foreclosure are imposed by the Civil Code Section 2924. The general provisions are:

  • Recording a Notice of Default (NOD)
  • Recording a Notice of Trustee Sale (NOS)
  • Recording a Trustee’s Deed upon Sale (Trustee’s Deed)

The information contained in each respective recorded document must be accurate and recorded timely. In addition there are notification requirements when preparing and recordings both the NOD and NOS.

These requirements are:

  • The documents must be recorded at the County Recorder’s office
  • The documents must be mailed by certified mail to the homeowner and other entitled parties.

There is a 90 day time requirement that must be complied with when recording the NOS. If the NOS is recorded prior to 90 days having elapsed since the recording of the NOD then the foreclosure in defective due to a civil code violation and is flawed and is subject to possible court reversal.

Homeowners who believe that foreclosure violations have taken place are encouraged to seek legal opinion as to a possible legal challenge. A point of caution is offered here as just about every attorney will require a retainer and hourly fee that is expected to be paid by the former homeowner. Attorneys almost never agree to represent this type of case on a contingency basis (no money expected from the former homeowner) but rather require an upfront retainer fee and then billing the client several hundred dollars per hour. Lawsuits to overturn a foreclosure are not handled like car accident cases. They can become very expensive with no guarantee of winning.

While most attorneys are honest and upfront about the potential outcome of a particular case we have seen numerous examples of clients who have contacted us following spending many thousands of dollars to an attorney who took on a case that had no possibility of ever prevailing. The attorney gets paid whether the former homeowner gets their home back or not. So caution is advisable here as there are some attorneys who might be self serving when giving legal opinion and taking on a cases.

If you would like more information regarding the foreclosure process, we have a more detailed explanation in the foreclosure section on our website. Or you can call our office and we would be more than happy to discuss and review the process with you.

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