SALE

Non-judicial foreclosure sales must be held in the county in which the property, or part of it, is located. The sale must be held between 9 a.m. and 5 p.m., on a weekday. Civil Code Section 2924g. The sale can be conducted by trustee, or his or her agent, including his or her attorney. Civil Code 2924a. If the property consists of several parcels or lots, they are sold separately, unless the deed of trust or mortgage specified to the contrary. When several lots are being sold, enough is sold to pay the debt, and the remainder are not sold.

The sale is by auction, and must be made to the highest bidder. At the sale, the holder of the mortgage or deed of trust is able to “credit bid” up to the full amount of his or her debt. This means that the lienholder need not pay cash, but instead gets credit for an amount up to the full amount of the debt owing. All other bidders must pay cash or cashier’s checks. Civil Code Section 2924h.

Foreclosure sales may be postponed, at the discretion of the trustee, by agreement between the lienholder and the trustee or by court order or operation of law. Postponements must be announced at the time and place noticed for the sale. An additional Notice of Sale is not required, unless the postponement or postponements, are for longer than 365 days. Civil Code Section 2924g(c)(1). Postponements may be announced at any time, up to the conclusion of the sale.

If a postponement is caused by a court order, or operation of law, the new sale may not occur any sooner than the seventh day after the action is dismissed, the court order expires or the legal prohibition on the sale otherwise ends. Civil Code Section 2924g(d). If, however, the sale is postponed due to the filing of a bankruptcy, and the stay imposed by the bankruptcy comes to an end, the sale can occur immediately, without the seven day delay.

The proceeds from a foreclosure sale are distributed in the following order:

(1) To pay the costs and expenses of the sale, including trustee and attorney fees;
(2) To pay the debt secured by the mortgage or deed of trust;
(3) To pay debts secured by junior mortgages or deeds of trust, in their order of priority; and
(4) The remainder, if any, goes to the owner of the property or his or her successor in interest.

Civil Code Section 2924k.

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