Foreclosure defense in California is the topic of this blog post.
Foreclosure defense in California is complicated by the fact that California is a non-judicial foreclosure state which means that the great majority of foreclosures are not processed through the court system.
Foreclosure defense involves filing a lawsuit by the homeowner with an upcoming foreclosure sale date that wants to stop the foreclosure sale. An ex parte request for a temporary restraining order to stop a foreclosure sale by a trustee in California should be filed at the same time as the lawsuit. Both documents should be filed as soon as possible as waiting to file the request until several days before the sale date is not a good strategy unless you can have a very good explanation.
Common grounds used for foreclosure defense in California.
Common grounds used for foreclosure defense in California include:
Violations of the California Homeowner Bill of Rights such as:
Violating the provisions of Civil Code §§ 2923.5, 2923.6, 2924.18 by recording, or causing to be recorded, a notice of default without fully informing the homeowner of their opportunity to apply for a loan modification.
Violating the provisions of Civil Code §§ 2923.5, 2923.6, 2924.18 by recording, or causing to be recorded, a notice of default even though Plaintiffs had submitted a complete application for a loan modification which was still being considered. This is known as “dual tracking”.
Failing to comply with a condition precedent regarding their contractual authority to foreclose by failing to comply with paragraph 22 of the standard Fannie Mae/Freddie Mac Deed of Trust which requires the lender to provide notice before accelerating the payments due under the note specifying (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property.
Failing to comply with the requirements of a Consumer Financial Protection Bureau regulation found at 12 CFR 1024.41(f)(1)(i) by failing to wait until the homeowner was more than 120 days delinquent on mortgage payments before sending any notice to begin any judicial or non-judicial foreclosure process.
Failure to accurately state the amount of the balance due in the notice of default.
Any lawsuit filed to stop a foreclosure sale by a trustee in California should be verified and filed with an ex-parte application for a temporary restraining order to prevent the real property from being sold which includes a memorandum of points and authorities, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order.
Sample complaint for foreclosure defense in California for sale.
Attorneys or parties in California that would like to view a portion of a 35 page sample verified complaint to stop a foreclosure sale by a trustee in California for violations of the California Homeowners Bill of Rights, a violation of Civil Code section 2923.5, declaratory and injunctive relief, and accounting that also includes an ex-parte application for a temporary restraining order to prevent the real property from being sold including a memorandum of points and authorities with citations to case law and statutory authority, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order sold by the author can see below.
Over 300 sample legal documents for California and Federal litigation for sale.
To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products
The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.
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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.