As reported in the LA Times: “UC Irvine law students will travel California this summer to help determine if five giant banks are fulfilling the pledges they made in a $25-billion settlement of foreclosure-abuse investigations.” It’s wonderful to see one of my alma maters involved in such important work.
Homeowners who have had their interest in their homes foreclosed frequently feel wronged and file suit to set-aside the sale. Lender’s, and their agent’s, demurrers to homeowner’s complaints are frequently sustained. One reason is that homeowners usually cannot allege tender. California law requires a valid tender sufficient to cure the outstanding balance of the loan in order to challenge and unwind a non-judicial foreclosure sale.
An exception to the tender requirement is when the trustee’s deed upon sale is “void” as opposed to “voidable”. Ordinary defects and irregularities in a sale render it merely voidable and not void, whereas substantially defective sales have been held void. “Substantially defective” means a defect in regard to a statutory provision which is regarded as mandatory. One such mandatory provision is Civil Code Section 2924g, subdivision (c)(1)(C), which provides for postponement of the trustee sale by instruction by the beneficiary to the trustee, or by mutual agreement between the trustor and beneficiary. Continue reading
If your home was in foreclosure in 2009 or 2010, you may be eligible for a free foreclosure review, which may provide you compensation. To learn more, watch this 4 minute video from the Federal Reserve. Choose “Independent Foreclosure Review PSA” dated May 23 from the drop-down list on the right.
Homeowners, and junior lien holders, cannot rely on technical defects in the statutory foreclosure process to redress perceived wrongs, unless they can show prejudice. Two recent cases, Herrera v. First National Mortgage Assn. and Debrunner v. Deutsche Bank Nat. Trust Co., make the point clearly. Continue reading
California courts have not been sympathetic to homeowners facing foreclosure. As long as lenders and their appointed trustees strictly follow the statutory non-judicial foreclosure procedure, foreclosure sales are final and shell-shocked homeowners have little recourse.
Demurrers to causes of action filed by homeowners who have lost their homes are routinely sustained without leave: MERS has standing; there is no requirement to “show me the note”; homeowners have no enforceable rights under the federal Home Affordable Modification Program (HAMP); and, with respect to cancellation of deed claims, tender is required.
However, the recent non-published case of Lee v. JPMorgan Chase Bank highlights a cause of action that may be available to some foreclosed homeowners: negligent misrepresentation. Continue reading