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Servicer Violated Borrower’s Rights by Foreclosing While Processing a Loan Modification.

Posted on: August 20, 2016

In the case Valbuena v. Ocwen Loan Servicing (2015) 237 Cal. App. 4th 1267, the appellate court reversed the trial court judgment in favor of a loan servicer who foreclosed on the borrower’s house despite a pending loan modification application.

Initially, the trial court ruled in favor of Ocwen after the borrower sued for wrongful foreclosure. However, the Court of Appeal ruled that because a loan modification application had been submitted three days after the receipt of a letter offering the modification service and specially requested documents which were transmitted Ocwen on the day of request; there was enough evidence to allege that a complete loan modification survey was pending at the time. The actions of the servicer violated Civ. Code § 2923.6, which protects the borrower from foreclosure when a loan modification application is pending.

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Defects in the Assignment of a Foreclosing Entity to the Note and Deed of Trust Voids Authority to Foreclose.

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In the case of Yvanova v. New Century Mortgage Corp (2016) 62 Cal. 4th, the Supreme Court of California reversed a previous decision by the Court of Appeal holding that the borrower lacked standing to assert defects in the assignment of the note and deed of trust to a foreclosing entity.

The Supreme Court held that a home loan borrower has standing to claim a nonjudicial foreclosure is wrongful because an assignment that the foreclosing entity supposedly took a beneficial interest in the deed of trust was not only voidable but in itself void, thus taking away the authority to foreclose or order a trustee’s sale.

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Bank lost legal right to foreclose on a house after assigning all beneficial interest to a third bank.

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In the case Sciarratta v. U.S Bank National Assn. (2016) 247 Cal. App. 4th 552, the Court reversed the trial court’s ruling sustaining the bank’s demurrer, holding that plaintiff’s allegations that the bank had acted in a way that caused harm was sufficient to constitute a cause of action for wrongful foreclosure.
The homeowner had standing to assert a claim that the nonjudicial foreclosure was wrongful because the bank that was foreclosing the house had assigned all of its beneficial interests in the deed of trust to a third bank and had thus nullified it’s beneficial interest in the deed and thus had no legal right to take the house.

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Lender Fails to Perform under Loan Modification Agreement Resulting in Wrongful Foreclosure.

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In the case of Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal. App. 4th 394, the Court of Appeal reversed the trial court’s dismissal of the borrower’s claims against the loan servicer claiming breach of contract, fraud, and negligent misrepresentation.

The appeals Court also held that although the borrower lost no equity, the measure of damages (Civ. Code § 3333) for the tort of wrongful foreclosure also includes proximately caused damages such as moving expenses, lost rental income, damage to credit, and emotional distress.

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Defamation Complaint Against Political Advertisement Struck Down.

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In the case Reed v. Gallagher (2016) 248 Cal. App. 4th 841, the Court of Appeal upheld the trial court’s ruling striking a defamation complaint.

The allegedly defamatory statements were made during a protected activity and that a probability of or prevailing at trial, required under the anti-SLAPP statute (Code Civ. Proc. § 425.16), was not shown. No proof of intent was shown regarding a political advertisement making various comments about a political opponent and thus the illegality exception to did not apply. The fact that the advertisement claimed the opponent lacked moral character was an opinion and other hyperbolic language used within the advertisement never asserted events or traits that could constitute defamation.

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Court Errs in Denying Cotrustee’s Order Confirming a Trust’s Assets.

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In the case Ukkestad v. RBS Asset Finance, Inc (2015) 235 Cal. App. 4th 156, the Court of Appeal held that a probate court had erred when they denied a cotrustee’s petition to confirm two parcels of real property as trust assets after the settlor’s death.

The probate court ruled denied the petition on the grounds that the statute of frauds had not been satisfied. However, because a trust instrument created by the owner of real property as a trustee through Prob. Code § 15200 stated that all of the settlor’s rights, titles, and interest to all of his property had been included, the statute of frauds did not stop the cotrustee from receiving an order confirming that the two parcels of property were in fact part of the trust’s assets.

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Lenders Acted Negligently after Failing to Properly Process a Loan Modification Application While Foreclosing.

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In the case Alvarez v. BAC Home Loans Servicing (2014) 228 Cal. App. 4th 941, the California Court of Appeal ruled that a previous judgment made by a court claiming that a lender acting negligently had no duty towards the borrower was to be reversed.
The borrower claimed the lenders were acting negligently in servicing loans because they failed to process the loan modification in a timely manner, continued to foreclose the home while processing the applications, and lost documents. Since the lenders allegedly agreed to consider the modification it weighed in favor of a duty towards the borrower considering that careful processing of the documents could lead to significant harm to the applicants.

While there was no guarantee the modification would be processed fully the mishandling completely removed the borrowers chance of having it occur. Since, the bank was the only entity with the duty of providing the service to the borrower the claim that they were guilty of dual tracking (foreclosing and processing modification forms simultaneously) significantly increased the blame they could be given.

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Servicer Violated Borrower’s Rights by Foreclosing While Processing a Loan Modification.

Posted on:

In the case Valbuena v. Ocwen Loan Servicing (2015) 237 Cal. App. 4th 1267, the appellate court reversed the trial court judgment in favor of a loan servicer who foreclosed on the borrower’s house despite a pending loan modification application.

Initially, the trial court ruled in favor of Ocwen after the borrower sued for wrongful foreclosure. However, the Court of Appeal ruled that because a loan modification application had been submitted three days after the receipt of a letter offering the modification service and specially requested documents which were transmitted Ocwen on the day of request; there was enough evidence to allege that a complete loan modification survey was pending at the time. The actions of the servicer violated Civ. Code § 2923.6, which protects the borrower from foreclosure when a loan modification application is pending.

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Bank Loses Appeal On Eviction After Foreclosure

Posted on: April 9, 2014

We are pleased to offer our neighbors in the Thousand Oaks area Real Estate Law services.

In case of The Bank of New York Mellon v. Vidal A. Precacido, et al, (ordered published 3/19/14)

Appellate Div. No. 1-12-AP-001360, the Court overturned the trial court’s judgment for possession in an unlawful detainer action against the tenants in possession after the Bank foreclosed by Trustee’s Sale and overturned the trail court’s judgment in a concurrent related civil action for wrongful foreclosure filed against the Bank by the foreclosed borrower. The Bank’s foreclosure and eviction procedures were fatally flawed. (more…)

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Transfer Disclosure Statement (TDS) Required For ‘Mixed Use’ Properties Having Both Commercial and Residential Buildings

Posted on: March 25, 2014

In the recent appellate opinion of Randall S. Richman V. Mark Hartley  (2d Civil No. B245052

Filed 3/20/14), in a matter of first impression, the Court held that a Transfer Disclosure Statement  (“TDS”) is required in any transfer of real property “improved with or consisting of not less than one nor more than four dwelling units,” even if the property also has commercial uses.

In this case, (more…)

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