Am I protected under the anti-deficiency statute law in California if i defaulted on my mortgage?

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I’m one of those unfortunate homeowner who purchased a home during the boom and also got one of those adjustable mortgage. I’ve been paying my mortgage on time and am not behind on my payment whatsoever. But my payment will start adjusting in a few months and the value of the house has taken a dip and I was told if I want to refinance my current mortgage, I would need to come up with the differences in order for my bank to refi. So my question is this, if I’m not able to come up with the money does that mean I cannot refinance? Am I shit outta luck? I’ve been responsible for my debt and I got screwed over my loan because my former loan officer did not disclosed those critical terms and loan details. On the closing day at the escrow office, my former loan officer wasn’t even there at the signing. She told me just show up and sign the documents and I was naïve and I did it. Do I have a case against this loan officer if I plan to sue her? The bottom line is, if I stop making payments and eventually foreclose the house, does the bank has the right to come after me for the differences that didn’t satisfy the loan because of the anti-deficiency statute in California? Am I protected under that law? The house is my primary residence and it has never been refinanced. My current loan is an 80/20 piggy back loan, with a 2yr fixed/adjust every 6 months. I’m just worry that the bank will come after me for the differences if I do foreclose on the loan. Any suggestions? Ideas? Alternatives? Is there any way I can avoid foreclosure? Any government agency I can turn to for help? I’m very stressed out so please advice! Thank you!

  1. Reply
    January 30, 2011 at 11:42 pm

    From my understanding California is considered a non-recourse state based on Purchase money loans(Loans used to purchase property) Whats got me a bit confused is I had a situation where their was a 1st mortgage foreclosing on this one property, I got in contact with the 2nd mortgage and said that they were not going to take any action as to the non-judicial foreclosure, but they were going to persue deficiency on a purchase money 2nd mortgage. I had mentioned that CA was a non-recourse state based on purchase money. They stated that since they were in 2nd position and had taken no action as to the foreclosure proceedings that they had recourse based on the now unsecured promissory note that accompanied the signed and notarized Mortgage(Deed of Trust ). So the 2nd mortgage mentioned that they will take action based on the signed promissory note from the borrower judicially in court. So all this seems a bit complicated it would be a good idea to get some good solid advice from a attorney that specialized in real estate law. Also try doing a search at

  2. Reply
    January 31, 2011 at 12:28 am

    Yes, since you have a purchase loan rather than a refi loan, you should be covered. However I am not an attorney and you should consult with a real estate attorney for a definitive answer. Call a title company and ask for real estate attorney referrals.

    Start by looking for consumer advocacy groups in your area, as they either have some one to help you develop a strategy to deal with the lender or can refer you to someone who can. I am sure there are specialist available from such a source.

    Quickly devise a plan with the specialist from the consumer group or an attorney and eventually call your lender, they might be willing to work with you. They probably have a whole department of people to deal with a situation like yours. Unfortunately, you are not alone. Before you call, have a plan for what you can do. Be ready when they ask that question. Don’t wait until you can’t make the payment, call while you’re still in good standing.

    They don’t want your house, if they can help it. They’re in the money lending business, not the real estate business. Typically they lose $ $ significantly when they foreclose.

    On taking legal action, seek out an attorney for a free consultation. Also the loan officer is licensed by the California Department of Real Estate and you can file a complaint. They have an office in Los Angeles and Sacramento.

    By the way, it may take a couple of years, but the value of your home will come back and eventually soar. I have studied California real estate values going back 30 years and it always comes back. So if you can find a way to hang in there, you’ll not only salvage your hard earned credit rating but come out ahead.

    Sorry for your mess and stress.

  3. Reply
    January 31, 2011 at 1:11 am

    Hi, I am a broker in California in Southern California and I help people in foreclosure. Like the broker above me, I want to state: I am not an attorney and you should consult with a real estate attorney for legal advice.

    Anyway, we are a trust deed state and therefore they cannot get a defieciency judgement from you. If you foreclose, they might 1099 you for their loss. So it shows up as income on your taxes and you will need to pay taxes on that next year.

    Your best option is to try to refinance if possible. Even though your home took a hit, you still might be able to refi without putting cash out of pocket. After that, I would suggest a short sale instead of letting it go into foreclosure.

    In regards to sueing anyone, I have lawyers who look to see if your lender violated Regulation Z or the Truth In Lending Act. If they did, they can sue your lender and might get you compensated as well while delaying the foreclosure.

    I personally don’t meet my clients at signing as well, but I make sure I go over all the disclosures and loan programs before they sign anything.

    If you’re in SoCal, let me know and I’ll see what I can do for you.


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