Homeowner rights during foreclosure in California are the topic of this blog post.
Even though the great majority of foreclosures in California are non-judicial, California homeowner’s do have certain rights which were greatly strengthened when the California legislature passed and the Governor signed the legislation that is commonly known as The Homeowner’s Bill of Rights.
The California statutes that comprise the HBOR are based at least to some extent on the National Mortgage Servicing Settlement that was entered into between the attorney’s generals of the various states and the five largest mortgage servicers in February of 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for certain statute that will expire on January 1, 2018 although many of the obligations imposed on mortgage servicers will continue beyond that date.
The HBOR has resulted in some major changes in the non-judicial process in California in that it provides important protections to California homeowners by imposing new requirements on mortgage servicers. The changes in the foreclosure process in California required by the HBOR statutes are listed below.
The first and most important change is that the HBOR requires new notices to borrowers under Civil Code section 2923.55, which both expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act. In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale.
The HBOR also imposes a ban on the widely despised practice
known as “dual tracking” as mortgage servicers in California must now place a
pending foreclosure on hold and not proceed any further while a “complete”
first lien loan modification application is pending, on appeal, or while the
borrower is in compliance with an approved loan modification agreement. A loan modification application is “complete”
when the borrower has submitted all required documents “within the reasonable
timeframes” set by the servicer. See
Civil Code §§ 2923.6, 2924.11, 2924.18.
Any servicer that services mortgages in California that
conduct more than 175 foreclosures per year in California are required to provide
a single point of contact by assigning a single individual or team of
individuals with knowledge of the loan and status of the possible loan
modification and must be available to the borrower as to such things as the loan
status, foreclosure prevention options available and the coordination of
documentation. A decision maker must also be available to a borrower. These provisions are found in Civil Code §
2923.7.
Another important change is the provision in the HBOR that allows
a homeowner to require any mortgage servicer to document their right to
foreclose. The Act also clearly states that
an entity cannot record a notice of default or otherwise initiate the
foreclosure process unless it the holder of the beneficial interest under the
deed of trust, the original or substituted trustee, or the designated agent of
the holder of the beneficial interest. See
Civil Code § 2924(a)(6).
The widespread practice known as “robo-signing” is now
banned as representatives of a financial institution or servicer may not
process foreclosure documents without verifying them for accuracy. See Civil Code § 2925.17.
Mortgage servicers are now required to have loss mitigation procedures
under the HBOR as it states that unless a borrower has previously exhausted the
first lien loan modification process, within five business days of recording a
notice of default, servicers that conduct more than 175 foreclosures per year
in California must send a written notice advising the borrower regarding
foreclosure prevention alternatives pursuant to Civil Code § 2924.9. Receipt of an application for loan
modification or any other documents must be acknowledged within five business
days pursuant to Civil Code § 2924.10. If
a loan modification is denied, the servicer must provide information regarding the
time to in which to appeal the denial and any reason(s) for the denial pursuant
to Civil Code § 2923.6.
California homeowner’s that may be in foreclosure
proceedings or are seriously delinquent on their mortgage payments will find
the HBOR provides some very welcome relief from an otherwise confusing and
frustrating non-judicial foreclosure process.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters including foreclosure defense, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
