THE DECREE OF FORECLOSURE

Again, a judicial foreclosure is a form of civil litigation. Thus, after the complaint is filed, the ordinary rules of civil litigation apply. The Summons and Complaint must be served upon the various Defendants, according to the technical rules relating to service of process. Each Defendant has thirty days after service of process to respond to the Complaint, by filing an Answer, a Cross-Complaint, a demurrer or a motion to strike. Once the complaint is at issue, both sides have the right to conduct discovery under the ordinary rules.

Ultimately, according to the local procedures of the particular Superior Court, the matter will come to trial. How long this will take varies according to the practice and procedures of the local court. Some years ago, it would often take a number of years for most civil litigation to come to trial. In recent years, the California courts have made a great effort to speed up civil litigation. As a result, in Los Angeles County Superior Court, at least in the Downtown Court, most civil cases come to trial within one year of the filing of the complaint. In some other counties, however, trial can still take several years to occur. A motion for summary judgment can sometimes be brought to speed up the process, although summary judgment motions are themselves subject to a number of cumbersome procedural requirements. Code of Civil Procedure Section 437c. By ordinary business standards, civil litigation is ordinarily a slow process.

Assuming the lender prevails at trial, or upon summary judgment, it will obtain a decree of foreclosure. This decree should specify against whom the judgment is entered, and the amount of the judgment. The decree can also award costs and attorney fees. If there is more than one lien against the property, the decree should determine the relative priority of the various liens.

If the lender is seeking a deficiency, the decree should state that a deficiency is being sought, the amount of the debt must be listed and the decree should specify that the sale is subject to the borrower’s right of redemption.

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