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California Foreclosure Process Overview

The process of foreclosure defense begins with pre-litigation (gathering all of the necessary information); once that is accomplished then Litigation of Real Property Ownership/Title in California can occur. First you must file the complaint. Questions to pose are when to file, what to write, what to file, and how to file. You want to file asap so that you do not miss any statute of limitations.

It is recommended that you use a checklist of possible causes of actions. Compare your facts to the checklist and build your complaint from there. You must include with your filed complaint, a summons, civil case cover sheet, attachments, complaint, complaint verification page, and the complaint exhibits. You will want to determine if you should file in Federal or State Court. You will also want to determine which court, based on jurisdictional issues. Once a complaint is filed you can seek a temporary restraining order and a preliminary injunction to stop a sale of the property. The court may require you to put  upa bond to be granted such an order. Temporary restraining orders are temporary until an order to show cause hearing can be had on the matter. The court will look to see if there has been proper notice, exigent circumstances exist, and if Plaintiff has a likelihood of succeeding on the merits of the case.  The court will not look favorably on a party that waits until the last minute to seek such an order and may conclude any exigent circumstances that exist, are due to Plaintiff’s failure to bring the request sooner and deny it on that basis alone.

Once the case is filed, an analysis should be done to determine whether or not to record a Lis Pendens which is a two-page document which attaches the lawsuit over the title to the property; thus, when it’s sold at a trustee sale date, no one but the bank will buy the lawsuit –and the bank must buy it back. There can not be a bona-fide purchaser because everyone is on record of the notice of the lawsuit. The lis pendens should only be recorded if there are real property issues and if there is a likelihood of success on the merits. The defendants will likely file a motion to expunge the lis pendens and if its not voluntarily withdrawn the court may award attorneys fees and costs to the defendants who had to bring the motion to expunge. In order for the motion to expunge to be granted but attorneys fees and costs to be denied the Plaintiff must show that it had substantial justification in recording and maintaining the lis pendens.

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