Leaving After a Foreclosure

Question: I am losing my house in foreclsoure. After the foreclosure the sale, will I get some kind of notice to vacate or is the sale date the date to be out by?

Answer: After the foreclosure say, the new owner will serve you with a Notice to Quit if you are still in the property. It is a 3-day notice if you are the former owner(s) and a 30-day notice if you are a tenant of the former owner(s).

If you still have not left after the expiration of the notice period, the new owner can file an eviction lawsuit against you to get and order for the Sheriff to remove you. Eviction lawsuits can take a couple of weeks or longer depending on the particular aspect of the case.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Chapter 7 and Keeping Property After Bankruptcy

Question: If I file a Chapter 7 bankruptcy, will i lose my home or car?

Answer: A person who files for bankruptcy may exempt certain items from the bankruptcy. In most cases, this lets you keep your home, your car, your furniture, your household items, your retirement and most, if not all, of what you have. Different states have different allowances for exemptions. You also can keep assets that have no equity, such as a car that's worth less than is owed on it, or a house where the mortgage is higher than the property value. Even if there is a small amount of equity, you can normally keep the asset.

While bankruptcy is a federal law, it is generally left for each state to decide what property that a debtor can keep after filing a Chapter 7 bankruptcy. California homeowners filing for Chapter 7 bankruptcy can protect (or exempt) anywhere from $50,000 to $150,000 of their equity depending on a number of factors that include age, marital status and the length of time they have owned the home. If the equity in the debtor's home is less than the allowed exemption amount, the debtor can keep the house simply by continuing to make the mortgage payments.

If the debtor's equity in the particular asset exceeds the allowed exemption, the property is called "nonexempt" and subject to possible liquidation (sale) by the appointed Chapter 7 trustee. Whether the trustee actually sells the asset depends on how much money the sale might generate. If the asset will not generate sufficient net proceeds to justify the sale, the trustee will often "abandon" the asset and ownership will revert back to the debtor. In other cases, the debtor can negotiate with the trustee to buy the asset back by paying the trustee the an amount equal to the nonexempt equity in the property.

Exemption planning and determining what assets you can keep after a bankruptcy are among the primary jobs of a bankruptcy attorney. You should consult a local bankruptcy attorney for further assistance.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Deck Repairs in a Condominium

Question: Are owners responsible for dry rot on decks (Common Area), or responsible for replacing the handrail? CCRs state that Owners have exclusive easement to use decks and must paint, maintain, repair the interiors (not defined). Decks are open to the air and are attachd to front of building.

Answer: As a general rule, state law provides that the Association maintains the true common areas while the homeowners maintain the separate interests and the exclusive use common areas. Civil Code §1364(a), states:

“Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common areas appurtenant to that separate interest.”

In a condominium development, which party is responsible for repair of which part of the property often hinges on how the maintenance responsibilities are assigned under the CC&Rs. In condominium developments, the Association is responsible for most exterior surfaces, other than items such as doors and windows, because the exterior is generally common areas.

In most condominiums, patios and decks are exclusive use common areas. The owners are responsible for maintaining the surface areas in much the same way they must maintain the interior surfaces of their units. The Association would usually be responsible for fixing structural problems (i.e. dry rot, termite infestation, etc.). However, it is impossible to tell in your particular situation without completely reviewing the CC&Rs and the condominium plan.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.