top 10 ways to stop foreclosures in california

7/30/2019 Top 10 ways to stop foreclosures in California

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Attorney Steve Vondran

California Real Estate Lawyer

Top 10 grounds for ForeclosureInjunctions in CA!

CLE

San Diego

2013

AttorneySteve.net



+Warning!

This presentation is not legal advice or a substitute for legal

advice

Just general ideas to think about when advising clients

Some information may not be accurate or current



+SB 94

SB 94 Notice – illegal to charge advance fees for loan

modifications or forbearances in California

Primary purpose is either = no advance fees

Law extended indefinitely with passage of AB 1950

Many cases involve counseling Clients as to options

(separating fact from fiction)

Other options = contingency cases / cases seeking damages

(predatory lending, fraud, breach of fiduciary duty, cases

seeking to enforce contractual modifications)



+Injunctions in California

Advise clients not to wait, hope and trust bank if they have

grounds to file lawsuit / seek injunction if available.

General rule: Harder to reverse sale than stop it. If you havegrounds for injunction better to assert than try to set aside

non-judicial foreclosure sale later (courts have preference for

finality in foreclosure sales)

AZ – must seek injunction or waive defenses to sale



+Injunctions Overview – Top 10

FDCPA / 17200

RESPA / 17200

Foreign Language Contracts – Civ. Code 1632

Failure to follow statutory requirements (Cal Civ Code

2923.5 / California Homeowner Bill of Rights)

TILA rescission



+Injunctions Overview – Top 10

Failure to follow statutory requirements (Substitution of

Trustee)

Elder Abuse / 17200

Lona v. Citibank (Unconscionability) / CLRA

Civil Service Members Relief Act

Enforcing modification agreements (default cured)

NOTE: “ produce the note” or “ show me the note” is not a civil

injunction grounds



+Legal Standard for Injunctions in

California

Tuck v. Wells Fargo, ND. Cal. 2012, slip copy, 2012 WL 3731609 (TRO haltingforeclosure granted)

Likely to succeed on the merits

Likely to suffer irreparable harm in the absence of preliminary relief

that the balance of equities tips in [their] favor, and that an

Injunction is in the public interest

In the Ninth Circuit, courts evaluate these factors on a sliding scale; a

court may issue a preliminary injunction on less than a likelihood of success on the merits, if Plaintiffs demonstrate “ serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff ... so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest .”



+FDCPA

LOAN SERVICER AS DEBT COLLECTOR

17203 FOR INJUNCTION

MERE FORECLOSURE NOT ENOUGH



+RESPA

QWR’S – MUST RAISE BILLING OR ACCOUNTING DISPUTE

GENERALLY NO INJUNCTION UNDER RESPA



+FOREIGN LANGUAGE

CONTRACTS

TARGETING DEMOGRAPHICS

NEGOTIATING IN FOREIGN LANGUAGE

RESCISSION POSSIBLE

TENDER



+STATUTORY FORMALITIES – BILL

OF RIGHTS / 2923.5

2935.5 SUNSET

CALIFORNIA HOMEOWNER BILL OF RIGHTS ALLOWS

INJUNCTION

ONE SIDED ATTORNEY FEES PROVISION

DUAL TRACKING OF FORECLOSURE PROHIBITED



+TRUTH IN LENDING

REFINANCE TRANSACTIONS

MATERIAL VIOLATIONS

RESCISSION

ABILITY TO TENDER



+STATUTORY FORMALITIES –

SUBSTITUTION OF TRUSTEE

Only one trustee at a time

No Tender?

Must show prejudice?

Reformation?



+FINANCIAL ELDER ABUSE

Applies to persons 65 or older or other dependents

Bad faith taking of money or property of elder

“Assisting” in taking money or property of elder

17203 injunction

Enhanced damages / remdies



+LONA V. CITIBANK /

UNCONSCIONABILITY

Case of the mushroom farmer with limited English skills

Stated income loan

Case to set aside foreclosure

Gross unfairness (state income v. actual income)

Totality of circumstances

Possible grounds for injunction?



+MILITARY FORECLOSURE

SCRA

Other Protections

Military causing payment hardship

Can seek rate reduction

Court order to foreclose

DOJ - $22 million dollar judgment against Bank of America /

Countrywide



+ENFORCING MODIFICATION

AGREEMENTS

Oral promises of a loan modification / HAMP fraud

Trial Plan Fraud

Breach of written agreement

Specific performance?

Promissory estoppel



+MISCELLANEOUS

QUIET TITLE

PRODUCE THE NOTE

MERS

SECURITIZED LOAN AUDITS



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Attorney Steve Vondran

California Real Estate Lawyer – Foreclosure

Defense and Predatory Lending Updates

CLESan Diego

2013

AttorneySteve.net

top 10 ways to stop foreclosures in california

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